Floor Statements

Mr. President, am I correct that we will now go to the Myers nomination?

Mr. President, earlier today I discussed my concerns about the nomination of William Myers to a lifetime job as a judge on the U.S. Court of Appeals for the Ninth Circuit. Before we vote on the motion of Republican Senators to invoke cloture on this nomination, I would like to highlight a few things.

This nomination was reported out of the Judiciary Committee on April Fool's Day over the objections of every single Democratic member of the committee.

The Republican majority has failed to bring this nomination up for a vote during the past 4 months, knowing that Mr. Myers is strongly opposed by the widest coalition of citizen groups that have ever opposed a circuit court nominee in U.S. history. Suddenly last Friday, Republicans filed their cloture motion to end a debate that had not even begun about why President Bush nominated such an anti-environment activist for a judgeship. They set debate for a time they knew few were scheduled to be here on such short notice. It seems that they are afraid of a robust and thorough debate on the merits, or lack of merit, of this nomination but they are eager to try to create a political issue out of it.

I do not think it is too skeptical to suggest that Republicans are bringing this nomination up now only to try to politicize the judicial nominations issue further in advance of the Presidential nominating conventions. This

is the partisan game plan proposed by the rightwing editorial page of the Washington Times and White House and rightwing advocacy groups such as the Committee for Justice. The White House and its Republican friends in this body should stop playing politics with these lifetime jobs as judges. Stop playing politics with our courts. Stop proposing extremists for our Federal bench. Stop trying to remake the Federal judiciary from an independent branch of Government into just another wing of the Republican Party.

We have stopped only a handful of this President's most extreme judicial nominees, even though Republicans blocked more than 60 of President Clinton's judicial nominees from getting an up-or-down vote. Republicans blocked nearly 10 times as many of President Clinton's moderate and well-qualified judicial nominees. Democrats have been judicious and sought to check only the worst nominations President Bush has proposed. This nomination is one of the most controversial and divisive, and the worst choice in terms of environmental protections and policy. It is so obvious he was chosen with the hope that he will continue to help roll back protections for clean water, clean air, and endangered ecosystems from the judicial bench.

Mr. Myers was picked to be a lifetime-appointed judge because for most of his working life he has been a strident opponent of environmental laws. The nomination of this industry lobbyist who has barely been inside a courtroom exemplifies the revolving door between corporate interests and the Bush administration. It is no wonder that his confirmation is opposed by more than 180 environmental, tribal, labor, civil rights, disability rights, women's rights and other citizen groups. I ask unanimous consent to have a list of those opposing this nomination printed in the Record.

He is opposed because he should not be trusted with a lifetime job as an appellate judge. His record is too extreme.

If you watch what the Bush administration does, instead of just listening to what it says, there is much evidence of this administration's outright contempt for high environmental standards. This nomination, in itself, says something about that. This nomination is emblematic of so many of this administration's appointments, especially to sensitive environmental posts. Mr. Myers' Interior appointment was the first ``swoosh'' of the revolving door. His nomination by President Bush to one of the highest courts in the land completes the cycle.

I must oppose cloture on this nomination, and I hope that the Senate's vote today will say something about the higher priority that the Senate makes of environmental quality.

Mr. CHAFEE. Mr. President, today I will vote in favor of invoking cloture on the nomination of William G. Myers III to serve on the U.S. Court of Appeals for the Ninth Circuit. During the 108th Congress, the Senate has failed to invoke cloture on the nominations of Mr. Myers and several other circuit court nominees. I have supported invoking cloture on these nominations because I am concerned about how such filibusters will affect the judicial confirmation process, including the nominees of future Presidents. The overwhelming majority of editorial pages across the Nation agree that district and circuit court nominees are entitled to an up-or-down vote.

However, a vote to invoke cloture is not an automatic vote for confirmation. in fact, I joined several other Republicans in voting against a district court nominee earlier this month. I have heard from a number of Rhode Islanders who have serious concerns about Mr. Myers, particularly his views on property rights and environmental protection, and I will carefully weigh their objections should the Senate invoke cloture on his nomination in the future.

Mr. President, while the Senate is using scarce floor time to debate probably the most anti-environmental judicial nominee this body has seen, it has blocked any attempts to strengthen environmental and public health protections. Sitting on deck are critical bills to help cut harmful air pollutants, combat climate change, clean up toxic waste sites and protect our natural resources and improve our nuclear security.

In fact, the Republican leadership only begrudgingly conceded six hours of floor time for Senators McCain and Lieberman's Climate Stewardship Act after blocking its consideration during the energy debate. Although the scientific and economic evidence of the toll climate change is and will take on this country, the Senate leadership continues to bury its head in the sand.

That is 6 hours total this Congress for the environment.

No time to consider Senator Jeffords's Clean Power Act that would finally require power plants to reduce emissions of toxic air pollutants like mercury. No time to consider the Chemical Security Act that would help ensure chemical plants are prepared for terrorist attacks. No time for the Toxic Cleanup Polluter Pays Renewal Act to reinstate fees paid by oil and chemical companies to cleanup waste sites across the country. No time for the Nuclear Infrastructure Security Act to improve security at over 100 nuclear facilities around the country.

Despite bipartisan support, Republican leadership has also blocked consideration of several bills to improve coastal protections. Of course, they also have failed to bring up any of the appropriations bills to fund our national parks, wildlife refuges and national forests or environmental cleanup programs.

Hundreds of thousands of Americans suffer every year from illnesses linked to emissions from power plants. One-fourth of Americans live within four miles of a Superfund waste site. Shouldn't the Senate be spending time finding solutions to these issues instead of debating a judicial nominee who wants to dismantle many of environmental protections?

Senate Republicans dare to come to the Senate floor to complain that Democrats are obstructionists when we have already confirmed nearly 200 of President Bush's judicial nominees. The Republican leadership has scheduled hundreds of hours for debate on judicial nominations but has allowed only six hours for debate on the critical issues affecting the health of our environment.

Packing the bench is obviously a top priority for this administration. Protecting our natural resources, along with our health, is not. By picking the most extreme judicial nominees, on the environment and other issues, the Bush administration demonstrates that one of its real long-term goals is to roll back these important protections.

Mr. President, I ask unanimous consent that privilege of the floor be granted to law clerks from my office, Patrick Campbell and Daniel Urman, during consideration of the nomination of William Myers.

Mr. President, I am pleased that the Senate is passing legislation to honor the contributions of John Marshall, the great Chief Justice of the Supreme Court, through the minting and issuance of a commemorative coin by the U.S. Treasury.

As an original cosponsor of S. 1531, the Chief Justice John Marshall Commemorative Coin Act, I have worked closely with Senator Hatch to do all that we possibly can to speedily pass this act into law. The act authorizes the Treasury Department to mint and issue coins in honor of Chief Justice John Marshall in the year 2005. Funds raised by sale of the coin will support the Supreme Court Historical Society. Sales of the coin also cover all of the costs of minting and issuing these coins, so that the American taxpayer is not bearing any cost whatsoever of this commemoration.

It is fitting that sales of a coin that bears the likeness of Chief Justice Marshall will be used to support the Supreme Court Historical Society. The society is a nonprofit organization whose purpose is to preserve and disseminate the history of the Supreme Court of the United States. Founded by Chief Justice Warren Burger, the society's mission is to provide information and historical research on our Nation's highest court. The society accomplishes this mission by conducting programs, publishing books, supporting historical research, and collecting antiques and artifacts related to the Court's history. We are happy to assist a worthwhile organization like the Supreme Court Historical Society.

In our successful efforts to obtain support for the bill, we gained 75 cosponsors in the Senate over the past year. Given the noble cause, it was not a hard sell. Yet, the number of bipartisan supporters is a proper tribute to the great Chief Justice John Marshall. John Marshall is known as ``the great Chief Justice'' of the Supreme Court. Marshall served on the bench for 34 years and established many of the constitutional doctrines we revere today. He is best known and respected for the fundamental principle of checks and balances of our democratic government.

I thank all the Senators and Representatives who supported this legislation--too numerous to name. I also thank the Supreme Court Historical Society for its dedication to this important tribute to Chief Justice John Marshall.

Mr. President, I am privileged to represent a State that values families and the tradition of this country as much or more than any State in our Nation. We are the 14th State in the Union. We are a State that values and respects not only our families, but our duties to the rest of the country. In fact, during the current war in Iraq, Vermont has lost on a per capita basis more soldiers than any other State in the country. We are a very special State.

We also have a wonderful constitution, the shortest constitution, I believe, of any State in the Nation. We hold to it as we do the U.S. Constitution. We have provisions in our Vermont State Constitution which

make it very difficult to change, for a reason. It has guided us for well over 200 years, just as our U.S. Constitution has guided the nation as a whole.

When you change the fundamental role of the Federal Government to have it intrude into the lives of our people and into our separate religious institutions, that is wrong. Doing so preemptively, based on the false premise that the U.S. Supreme Court, the Supreme Court of Chief Justice Rehnquist and Justice O'Connor, is going to reach out and require States to approve same-sex marriages, is ill founded. Doing so in order to write discrimination into the Constitution is abhorrent.

Instead of a respectful and deliberative process with respect to the U.S. Constitution, we have something else going on here, something that Senator Durbin and Senator Feingold and others spoke of yesterday. None of the various proposed constitutional amendments have gone through the traditional process to help the Senate determine whether a proposed amendment is ``necessary,'' as, of course, the Constitution requires. Changing the fundamental charter of our Nation should not be proposed in this haphazard manner.

Everybody here knows that this is a political exercise being carried out on the fly. It shows little respect for the Constitution or the priorities of the American people.

Instead of taking action against terrorism, providing access to prescription drugs at lower prices, improving the criminal justice system, engaging in oversight to get to the bottom of the Iraq prison abuse scandal, providing a real Patients' Bill of Rights against the HMOs, or just fulfilling the basic requirements of the Senate by passing a budget and determining the 12 remaining appropriations bills on which the Senate has yet to act, the Republican leadership in the Senate has frittered away another week, with only 5 weeks left in the session. We have lost another week, but they know on the vote they will not win.

The American people have felt the need to amend the Constitution only 17 times since the adoption of the Bill of Rights. You would not recognize that tradition of restraint in looking at this Congress, in which dozens of proposed amendments to the Constitution have been introduced. The Senate has voted to increase the democratic rights of our citizens on several occasions, but we have only voted once to limit the rights of the American people. That was prohibition. We know that failed, and we had to come back in an embarrassed way and vote to repeal it.

This is a motion to proceed to the third version of the Federal Marriage Amendment that has been introduced in this Congress. Senator Daschle and the Democratic leadership offered a fair up-or-down vote on this amendment, but the Republican leaders refused. Instead, they want to have a constitutional convention on the Senate floor, with multiple votes on a variety of versions of constitutional amendments.

Yesterday, the distinguished Senator from Oregon, Mr. Smith, indicated he was not insisting on a vote on his version of a constitutional amendment. I have not heard the distinguished senior Senator from Utah insist on a separate vote on an alternative version. I really do not understand why the Republican leadership wouldn't agree to an up-or-down vote at a certain time on this amendment, as Senator Daschle offered. It almost seems as if the Republican leadership can't take yes for an answer on this procedural matter.

Are we facing crises here in the United States? I suppose that we are, but they are not constitutional crises. They are real-world problems. They have more to do with international terrorism and difficult economic times for America's working families than how the people of the State of Massachusetts will determine how to work out a State constitutional amendment or other approaches to the question of marriage in their State.

No constitutional crisis exists demanding constitutional changes. Look at two of our largest States, California and New York. They have Republican Governors. Their Republican Governors are not asking us to change the Constitution. Many of the Republican Senators in this Chamber know there is not a constitutional crisis, and I commend their courage in opposing this amendment.

I compliment the Log Cabin Republicans for their forthrightness and courage. They are right that marriage is an issue for the States and for our religious institutions within their separate spheres. In fact, they are right that Vice President Cheney and I agree on this, even though the Vice President is uncharacteristically silent at this moment.

I began this debate last Friday by urging that our Constitution not be politicized. I am saddened to see the proponents of this amendment and those trying to make this an election year issue see nothing as off limits or out of bounds, not even the Constitution. They propose turning the Constitution of the United States from the fundamental charter preserving our freedoms into a kiosk for political bumper stickers. They would reduce it to a device--in their words--to ``stand up against the culture.''

The real conservatives, the conservatives of Vermont and other States--know that conserving the Constitution is among the most important responsibilities we have. Our oath as Senators--an oath I have taken five times, and I can remember each one of them as though it was yesterday--is to ``support and defend the Constitution of the United States.''

Where is the respect for our States here? The Republican-appointed judges in Massachusetts changed their rules on marriage. But Massachusetts can decide for Massachusetts. They can change their constitution. But, of course, what we do here is going to force other States to ignore their own constitution or their own laws. Whether they like it or not, we will tell them what they have to do.

I hear many say Republicans and others on the Massachusetts Supreme Court endangered marriages. If I may be personal for a moment, I have been married for 42 years, to the most wonderful person I have ever known. In my mind, she is the most wonderful wife anyone could have. I sometimes ask myself why she has put up with me for 42 years, but she has. We have three beautiful children, two wonderful daughters-in-law, a wonderful son-in-law, all of whom we love. We were blessed this past weekend with our third grandchild. How wonderful it was to hold her literally minutes after she was born.

Like the former senior Senator from my State, Senator Stafford, I could say that everything I have accomplished in my life that has been worthwhile has been with the help of my wife Marcelle. We do not find our marriage endangered.

I do find a Constitution endangered if we start using it for bumper sticker slogans. That is what we are doing, and we must stop. The Constitution is too great a part of our heritage and our freedoms and our diversity and the democracy we love to tarnish it in this fashion.

When we vote today, we will not be voting to preserve the 42-year marriage of Patrick and Marcelle Leahy. She and I will not be affected by this vote, but millions of Americans will be. Remember those gay and lesbian Americans across the Nation who are looking to the Senate today to see whether this body is going to brand them as inferiors in our society. Those who vote against cloture recognize the fullness of their worth and their citizenship. I will not vote to diminish other Americans in the Constitution. I urge all Senators to vote ``no.''

I have to wonder what Americans are thinking as they watch the Senate devote its limited time to debate the Federal marriage amendment. Do they think the Nation is in a midst of a crisis that only a constitutional amendment can resolve? Are they pleased that the Senate has turned away from legislation that could improve their daily lives to engage in this debate? I doubt it.

Let me review the current legal landscape in America. Massachusetts is the only State in the Union providing marriage licenses to same-sex couples, and its citizens are in the midst of the State constitutional process to overturn that policy. In addition, Massachusetts has limited same-sex marriage to couples who reside or intend to reside there. Meanwhile, none of the other 49 States has moved to legalize gay marriage during the many months

that have followed the Goodridge decision in Massachusetts.

I think most Americans would agree with me that the sky has not fallen during the 2 months during which same-sex couples have married in Massachusetts. They may support gay marriage, or like me, they may believe that civil unions are the appropriate way to recognize the seriousness of gay and lesbian relationships. Or they may oppose any recognition at all for same-sex couples. But at a fundamental level, they understand that States should have the authority to decide who can marry, and that the relationships being formed between consenting adults in Massachusetts have not harmed their own marriages or their own families.

The Rutland Herald, a Pulitzer Prize-winning newspaper in my State, wrote the following in an editorial last month:

[A] remarkable thing has happened since gay marriages began

legally in Massachusetts last month: nothing. Gay and lesbian

couples who have trooped to their town clerks or church

altars have joined in the most significant relationship of

their lives, and it has not been nothing to them. But no

cataclysmic shock to society has occurred. Marriages happen

as a matter of course, and though they are one of the most

significant events in the life of the individual, they are a

routine matter in the life of a community. Now gay marriage,

too, has become routine, at least in Massachusetts.

As The Rutland Herald suggests, most Americans have not felt any effects from developments in Massachusetts, and many are surely mystified and dismayed by the Senate's fascination with the topic.

So why are we here today? We are certainly not here to legislate. Everyone in this chamber knows the Senate will not adopt this amendment. If you listen to Senator Santorum or Senator Hatch, you know they say we are here to ``put people on record,'' apparently including the many Republicans who have expressed reservations about the FMA or oppose it outright.

Obviously, the Senate leadership has decided that forcing a vote in relation to the FMA will benefit the Republican Party politically, from the race for the White House to the Senate races that will determine which party controls the agenda for the 109th Congress.

Ever since President Bush publicly embraced amending the Constitution to ban same-sex marriage, it has been obvious that he considered the issue of gay marriage crucial to his re-election campaign. The President's plan was clear: his right-wing base may have been alienated by his calls for immigration reform or a mission to Mars, but he would win them back by aggressively promoting a marriage amendment. And since the President's opponent is a Member of this body, it was only a matter of time before this amendment reached the floor, regardless of what procedural traditions had to be sidestepped to do it.

Of course, the President has never said what words he wants to be included in the Constitution. His Department of Justice has never testified before the Judiciary Committee of the House or Senate, and has never said what words it believes would be appropriate to include in the Constitution. The President and his administration want the benefit of supporting this discriminatory amendment without getting their hands dirty by delving into the specific and ugly words. This lack of concern about the language of the amendment is of course not limited to the White House. As I stressed in my opening statement, the language of this amendment is rather beside the point for its congressional supporters, too.

The President addressed the issue of gay marriage in his State of the Union address in January. He said, ``If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process.'' Yet, on February 24--barely a month after the State of the Union address--and without any additional court anywhere in the country ruling on gay marriage, the President flip-flopped and endorsed putting a ban on gay marriage in the Constitution. I can only assume that something turned up in the White House's polling to prompt such a dramatic about-face. Or perhaps Karl Rove's phone simply would not stop ringing with calls from the hard- right groups that compose the core of the President's support.

In any event, the day after the President endorsed the concept of a constitutional amendment, I wrote him and asked what specific language he wanted us to add to the Constitution. After all, we have only amended the Constitution 17 times since the Bill of Rights. If the President was calling on Congress to amend it for an 18th time, I thought the least he could do is make clear what language he seeks. I have waited in vain for a response.

I am not surprised by the President's conduct in this matter. He has proven himself willing over the last 3\1/2\ years to take whatever measures he finds politically expedient. He has also shown that he is more than willing to play political games with the Constitution, as we see with today's debate and we will see again in the upcoming debate on a constitutional amendment to ban flag desecration an issue that Vice President Cheney has been campaigning on recently. The President, the Vice President, and the rest of the administration have withheld information from Congress and the public whenever it suits them. And facts have proven to be awfully malleable things when they have stood in the way of the President's political priorities. For this administration, it is all politics all the time regardless of the truth or the consequences. Let me provide three of the many possible examples.

When the facts got in the way of the President's prewar statements about Iraq, and Joseph Wilson pointed out the flaws in the President's 2003 State of the Union address concerning Iraq's alleged efforts to obtain uranium in Niger, someone in the Administration apparently told the press that Wilson's wife was an undercover agent at the CIA. The President promised that the perpetrator would be discovered and punished. But if he has made any efforts to discover the leaker's identity, we are unaware of them. Instead, he has retained counsel and allowed the investigation to grind on, perhaps in the hope that the issue will not be resolved until after election day.

When the facts got in the way of the President's proposal to expand Medicare to provide prescription drug benefits, his Department of Health and Human Services simply withheld those facts from Congress. When Congress considered the prescription drugs bill last fall, it received an estimate from the Congressional Budget Office that the cost of implementing the new program would be about $395 billion. It has since come to light that Richard Foster, the chief Medicare actuary, completed a cost estimate for the Bush administration last fall that showed the new prescription drug benefit would cost $550 billion, drastically more than the CBO estimate. In testimony before Congress, Mr. Foster explained that he was told that if he made his cost analysis public, he would be fired. The Congressional Research Service recently reported that it believes the Bush administration violated the law by withholding Mr. Foster's report and stated that it is clear that Congress has the right to receive truthful information from Federal agencies to assist in its legislative functions. It was a breach of trust with this Congress and with the American people.

And in today's papers we learn that there are administration estimates that when the purported prescription drug benefits are supposed to finally kick in around 2006, what is likely to happen is that almost 4 million retirees will, in fact, lose prescription drug benefits. That means that the Bush administration is now withholding its own estimates that one-third of all retirees with employer- sponsored drug coverage will, in fact, suffer more rather than be helped by the bill they forced through the Congress to benefit large insurance and pharmaceutical companies at the expense of our seniors.

Finally, when we in Congress raised legitimate concerns about the administration's policies on the abuse of prisoners abroad and requested documents that would shed light on the administration's policies regarding the treatment and interrogation of detainees, the White House released a small number of self-serving documents and chose to hide the rest. Then it ``disavowed'' the Office of Legal Counsel memo that laid out a strategy for evading the limits of the Torture Convention as if that document, which is legally binding on

the Executive Branch, had been nothing more than the doodling of an overly imaginative young lawyer at the Department of Justice. The administration obviously does not want the Congress or the American people to know the facts about its actions abroad or its slippery commitment to upholding American values.

Let there be no mistake: We are here today because the President wants to distract the American people from the facts of the weakened economy and reduced standing abroad that his administration has produced. He and the Senate Republican leadership prefer a political circus and seek to whip the American people into a frenzy based on the actions of a single State.

I am not so sure their political calculations are correct. I believe the American people regardless of their position on gay marriage--will be disappointed by the majority's overreaching. They will see this debate for what it is--a show produced to benefit Republicans politically while doing nothing to enhance or protect the sanctity of marriage. Senator Chafee predicted months ago that his leadership might bring the amendment up ``just for political posturing.'' He has proved prescient.

As I said at the fourth and final hearing the Judiciary Committee held on gay marriage, this debate is not about preserving the sanctity of marriage. It is about preserving a Republican White House and Senate and about doing so by scapegoating gay and lesbian Americans. I oppose this amendment, and I again urge my colleagues to oppose it as well.

This debate perfectly illustrates the Senate's priorities. We are spending days on a Federal marriage amendment that we all know does not have the votes to pass the Senate and that the House may never even put to a vote. I have spoken before about the divisiveness of this debate and the contempt that it shows for our constitutional traditions. This debate, however, also demonstrates the Senate Republican leadership's disregard for the needs of the American people and the institutional responsibilities of this body.

The Senate has been unable to get its own house in order. It is mid- July and we have still not passed a budget. The Senate has passed only one of 13 appropriations bills, and the leadership has suggested they may not be able to find the time to pass the others as individual bills. I do not believe we have ever passed only one appropriations bill in the Senate before the August recess, but we certainly seem to be headed in that direction.

A July 7 editorial in Roll Call lamented what it called the ``Big Mess Ahead.'' We are now stuck in that big mess. Roll Call noted that ``July should be appropriations month in the Senate.'' I agree. July has traditionally been when we got our work done and made sure that funding for the various functions of the Federal Government would be appropriated by the Congress as it exercised its responsibilities and the power of the purse. Not this year.

We have not done our part to help American employers create jobs. We have not completed work on a highway bill that could create 830,000 jobs, or on the FSC-ETI bill, subjecting American businesses to retaliatory tariffs that are increasing monthly. At the same time we have dallied on measures to expand the economy, and we have refused to extend unemployment benefits, even as 2 million Americans have exhausted their unemployment insurance.

We have not addressed the health care needs of our citizens. The majority has refused to take up either a drug reimportation bill that has the support of a majority of Senators, or mental health parity legislation that has 68 sponsors. Meanwhile, the Senate has done nothing to address the fact that 43 million Americans have not had health insurance for more than a year.

We have failed those hardworking Americans who struggle every day to make ends meet on wages that barely reach the poverty line. We have not increased a minimum wage that has remained unchanged since 1996. As inflation has risen and the economy has worsened, the working poor must struggle to live on the same wage Congress passed 8 years ago. The core inflation rate rose 2 percent in the first quarter of this year alone. In addition to allowing the minimum wage to stagnate, the majority has abandoned efforts to reauthorize the welfare reform law, leaving thousands of families in desperate need of quality childcare behind.

We have also failed our veterans. This failure begins at the top. The President has consistently proposed underfunding veterans' programs. His budget request for this year failed to maintain even the current level of services. Secretary of Veterans Affairs Principi recently testified that his department asked the White House for an additional $1.2 billion, but that request was denied. Forced to choose between our veterans and the President, the majority has sided against our veterans.

During consideration of this year's budget resolution, Senator Daschle offered an amendment to fund veterans programs at the level recommended by veterans' groups in the Independent Budget. Unfortunately, only one Republican voted in favor of this amendment, and it was defeated. A second amendment, offered by Senator Bill Nelson, would have increased funding for veterans by $1.8 billion. It too was defeated. Not a single Republican supported the Nelson amendment. My friends on the other side of the aisle then offered a ``smoke and mirrors'' amendment on veterans' care. Although this amendment made it seem that the Senate was voting to provide more money for veterans, we all know that this amendment did not add one red cent. The main purpose of this amendment was to provide political cover for the November election.

While the administration is shortchanging VA funding, out-of-pocket expenses for veterans are skyrocketing. Under the Bush administration, these expenses are projected to rise by an incredible 478 percent. Certain Priority 8 veterans are blocked from VA health care altogether, while others cannot receive treatment unless they pay a ridiculously high co-payment. Instead of debating polarizing issues like the Federal marriage amendment, we should be acting to provide real resources for the men and women who served this country with honor.

Unlike in 2000, the Republican majority has not even made the pretense of addressing the priorities of our Nation's immigrants. The majority leader engaged in parliamentary tricks last week to avoid a vote on Senator Craig's immigration reform bill and has found no time for the bipartisan DREAM Act, which would help thousands of immigrant students in our Nation. The prospect of comprehensive immigration reform is even more remote.

Sadly, the list of what we are not accomplishing goes on and on. Roll Call observed in its editorial last week that ``the second session of the 108th Congress is poised to accomplish nothing.'' The way things are going, under Republican leadership this session will make the ``do nothing'' Congress against which President Harry Truman ran seem like a legislative juggernaut.

The days we spend on this amendment could be spent more productively on any of the matters I just mentioned, but instead we are debating the FMA. We have followed this course even though there are only 6 weeks remaining in the Senate's scheduled work year.

I fear that at this point in an election year, floor time is only available for matters that advance the majority's narrow political agenda. This is a sad contrast from 1996, when we passed a minimum wage increase, a welfare reform bill, and other matters in a productive summer during which we occasionally put the election aside and took care of business for the American people. I supported some of those initiatives and opposed others, but I believed they were important matters that deserved the Senate's extended attention.

This summer, the Senate seems content to act as an extension of the President's reelection campaign. Why else would we be considering an amendment prompted by gay marriages in Massachusetts, 2 weeks before Democrats convene in Boston for their national convention? In light of all the talk about potential terrorist activity at the political conventions, we should be spending time passing appropriations bills for the Departments of Justice and Homeland Security. Instead,

this Senate will grind to a halt and ignore its pressing duties to conduct a debate whose outcome we all know.

I am not naive. I know that politics has always influenced Congress. It could not be otherwise. I fear, however, that the Republican leadership has taken the politicization of the Senate to new heights. Have we ever taken up a constitutional amendment that did not have the support even of a firm majority of this body, over the objection of the minority party, without even having the Judiciary Committee consider it?

We should reject this amendment and move on to the matters that make a difference in the daily lives of our constituents.

Mr. President, I memorialize the life of Edward ``Ed'' Miles, a decorated Vietnam veteran who heroically turned his war experience into a mission of compassion for victims of conflict around the world. Ed Miles died on January 26, 2004.

I first met Ed through his advocacy on behalf of war survivors--work that embodied the ideals of the Leahy War Victims Fund, which was established in 1989 to respond to the needs of innocent victims of conflict in developing countries. Despite painful injuries suffered during the war in Vietnam that left him a bilateral amputee, and the challenges of working in a country reeling from Pol Pot's genocidal Khmer Rouge regime, Ed persevered and set up a rehabilitation clinic for landmine survivors and other war victims that was the first of its kind in Cambodia. Today it is recognized as Cambodia's national rehabilitation center and a model for others around the world.

Ed is perhaps best remembered for this work through his involvement with Vietnam Veterans of America Foundation, VVAF, and the International Campaign to Ban Land Mines, which received the Nobel Peace Prize in 1997 for its advocacy to eliminate the scourge of landmines.

As an associate director of VVAF, Ed traveled throughout the world raising funds, generating medical research and support, and, finally, building and staffing a prosthetics clinic for amputees at Kien Khleang, outside Phnom Penh, Cambodia in 1991. Since its inception, this project has produced 15,000 prosthetics, orthotics and wheelchairs for landmine survivors and other war victims. In addition, since Ed's initial pioneering and humanitarian efforts in Cambodia, VVAF has opened rehabilitation clinics in Vietnam, Angola, Ethiopia, Kosovo and elsewhere in Central America and Sub-Saharan Africa. Thousands of people with disabilities, many of whom had been treated as social outcasts, recovered their mobility and their dignity because of Ed Miles.

Ed's personal mission to help war survivors was undoubtedly the result of his own war experience. In April 1969, as a Captain and Military Advisor, Special Forces, United States Army, Ed was wounded in an ambush outside Cu Chi near the Cambodian border. He stepped on a landmine and lost both of his legs above the knee, suffered severe bone, nerve and muscle damage to his arm and later lost one of his eyes to infection.

As a result of his service in Vietnam, Ed received the United States Army Silver Star for Bravery, the Bronze Star, the Purple Heart, the Vietnamese Cross of Gallantry, the Vietnamese Campaign Medal, the Air Medal, the Good Conduct and the Combat Infantryman's Badge.

After returning home, Ed became an active critic of the Vietnam War, co-founding Veterans Against the War. Yet despite the severity of his injuries, years of hospital treatment and his enduring disabilities, he also completed his education, receiving his Masters of Public Administration from New York University. Ed worked as an Outreach Counselor for Vietnam veterans with Post-Traumatic Stress Disorder. In 1989, he was one of the first Americans to return to Vietnam since the war ended. In fact, he was featured on ``Nightline'' visiting the site where he was wounded.

Ed continued his quest for peace and reconciliation with America's former enemy through VVAF, continuously lobbying the United States Congress and the White House to normalize diplomatic and trade relations with Vietnam, which ultimately occurred in 1995. He was a featured speaker throughout the United States, and a visiting guest speaker at local schools where he described his Vietnam experience and the historical significance and lessons of the Vietnam War.

For the 35 years since being wounded and up until his life's end, Ed exhibited a selflessness, determination and compassion beyond compare. Despite the daily struggles and pain from his injuries, I never once heard Ed complain about his own misfortunes. He was soft spoken and unassuming to a degree rarely seen, but he also harbored a fiery passion for ridding the world of injustice and senseless conflict. Ed was an inspiration to me in my efforts to ban landmines, and to everyone who knew him.

Family, friends and colleagues throughout the world responded with shock and deep sadness for the loss of this true humanitarian and hero. In his gentle but powerful way, Ed touched the world one person at a time, and I consider myself very fortunate to have been one of them.

Ed was born in Brooklyn, NY, and was buried there with his parents and Irish ancestors dating from 1860. He grew up in Manhasset, NY and throughout his free-spirited life, had homes in Phnom Penh, Cambodia, Augsburg, Germany, Kinsale, Ireland, Greenwich Village, Sag Harbor, Southhampton and Stamford, New York, Wyoming, Colorado, and Wilton, Connecticut. He is survived by sons Ed, of Boulder, Colorado, and Daniel of Southhampton, New York; a daughter, Sarah of New York City; sisters Mary Teresa Jackson of Raleigh, North Carolina, Michele Dunn of Wilton, Connecticut, and Christine Kuhl of Southhampton, New York.

The world is a better place because of Ed Miles, and his generous heart and many contributions will always be remembered.

Mr. President, I oppose amending our Constitution with the Federal Marriage Amendment (FMA) because it interferes in a fundamental State matter, and, worse yet, it does so for the purpose of disfavoring a group of Americans. We have never amended our Constitution for that purpose, and we should not start now. The timing of this debate strongly supports my point that the FMA's supporters are concerned not with preserving the sanctity of marriage, but with preserving Republican politicians.

I am disappointed that we are debating a divisive and mean-spirited amendment that violates the traditions of Federalism and local control that the Republican party claims to cherish. We should be upholding the commitment to tolerance that underlies our Constitution, not betraying it with a premature debate that we all know will yield nothing but division in this body and among the American people. I urge all Senators to honor our oath as Senators to ``support and defend the Constitution'' and not sacrifice it to this short-term partisan exercise.

This debate risks great harm by casting States and gay Americans into second-class status and also harms the Senate. The Republican Senate leadership has shown contempt for the constitutional amendment process by bringing this proposed constitutional amendment directly to the Senate without the approval--or even the consideration--of the Judiciary Committee or its Constitution Subcommittee.

The Senate and the Judiciary Committee have followed a consistent practice for the consideration of constitutional amendments in the past. Before a constitutional amendment receives floor consideration it is debated and voted on by both the Subcommittee on the Constitution and the Judiciary Committee as a whole. This is the process that the Senate is currently following for the amendment to ban flag desecration, an amendment that has been considered by the Senate on numerous occasions, and that we followed in conjunction with the crime victims rights constitutional amendment. By contrast, the Federal Marriage Amendment, which is being considered for the first time, was not debated or voted on in either the subcommittee or the full Committee, yet it is before us on the floor today.

Past attempts to skirt Committee consideration of constitutional amendments, in the absence of an agreement between the parties, have drawn sharp condemnation. Twenty-five years ago, an amendment calling for direct election of the President and Vice-President was brought to the floor without Judiciary Committee approval. Senator Hatch, the then-ranking Republican member on the Constitution Subcommittee, said: ``To bypass the committee is, I think, to denigrate the committee process, especially when an amendment to the Constitution of the United States of America, the most important document in the history of the Nation, is involved.'' The late Senator Thurmond said that ``if a bill of this nature is not going to be referred to a committee to consider it, I do not know why we need Committees in the U.S. Senate.'' In 1979, Senator Hatch said it was ``unconscionable to bring up legislation under these circumstances.'' Apparently what was ``unconscionable'' in 1979 is applauded in 2004 so long as it is being done for partisan Republican purposes.

I joined with all of my Democratic colleagues on the Judiciary Committee in writing last month to the Chairman to request that this amendment go through the normal channels. That request was ignored by the Chairman and apparently rejected by the Senate Republican leadership as it chooses for its own benefit to change yet another longstanding practice of the United States Senate.

The procedural treatment the Republican leadership is giving this proposed amendment to the Constitution of the United States is perhaps more appropriate for a resolution commemorating

an organization's anniversary or a celebratory day, which are sometimes discharged from the Judiciary Committee without debate and agreed to by the full Senate. When we are dealing with a resolution designating something as universally accepted as ``National Girl Scout Week,'' it does not offend me to skip Committee consideration. But short cuts are not fitting when we are talking about amending our fundamental national charter.

Perhaps cutting corners like this and its maneuvering reveals how the Republican leadership really sees this amendment. Perhaps this exercise is, after all, not intended as a serious effort to amend the Constitution--something deserving deliberate consideration and careful refinement during the Committee process. It seems that this forced exercise is intended instead as the legislative equivalent of a political bumper sticker, suddenly appearing on the Senate floor late in an election year.

I assume that our longstanding practice was disregarded because the majority did not want to risk seeing the FMA defeated in committee. Or perhaps their decision to press this matter into debate, in spite of last week's terrorism warning, the unresolved intelligence failures and torture scandal and the lack of progress on a budget and Federal appropriations matters, was made hastily to fit the political calendar. Forcing a debate at this time shows they have no interest in passing an amendment--they simply want to go through the motions to please their hard-right base and try to inflict political damage of those of us who stand up for the Constitution. The New York Times reported yesterday how much pressure Republicans have been under from their extreme right wing to turn to this matter. This is apparently especially true now that the Republican Party has decided to try to put a pretty face on its harmful policies at its upcoming convention by featuring its few moderates. Those moderates do not set the policy for the national Republican Party and oppose this amendment. However the national Republican Party tries to dress itself up at its convention, the hard truth is that they are choosing to foster division by pressing this matter. If the Senate Republican leadership were interested in amending the Constitution, they would not bring this amendment to the floor now and face certain defeat. Committee consideration of an amendment is not merely a box to check in a procedural flowchart. Committee consideration of any legislation, especially constitutional amendments, affords an opportunity to address problems that are not easily remedied on the Senate floor. Committee consideration can also ensure that we agree on what an amendment does, even if we disagree on whether what it does is desirable. I certainly do not believe that we are at that point as we begin this premature debate. In that light, I would like to discuss some of the open questions raised by this amendment.

I would like to place in the Record a story from the February 14 Washington Post about the formation of the FMA. The basic theme of the report was that even the drafters of the FMA disagree about what it means. Matt Daniels, the head of the Alliance for Marriage, a group promoting the FMA, was honest enough to tell the Post that the drafters of the amendment did not worry too much about the wording, saying, ``I don't think we expected there would be this much attention paid to it.'' Although the language of the amendment before us has changed slightly from the original version, it is essentially the same as the sloppy patchwork version introduced last year. I think that Mr. Daniels' attitude speaks volumes about the respect the supporters of this amendment have for the Constitution.

This attitude is apparently shared by President Bush, who has made clear his desire to use this issue for political advantage. Although the President has asked Congress to amend the Constitution to ban gay marriage, he has refused repeated calls to state specifically what language he believes Congress should adopt. Like the Senate leadership, the President appears happy to seek political profit by demeaning both the Constitution and gay and lesbian Americans.

I would contrast the casual approach of the President toward the words of our Constitution with the approach of Senator Byrd--the most senior member of this body and a fierce defender of the Constitution-- during the 1997 debate over the Balanced Budget Amendment. Senator Byrd said:

I would like to remind my colleagues that law and

legislating is about the examination of details. We don't

legislate one-liners, or campaign slogans. Here, in this body

and in the other body, we put the force of the law behind

details that impact mightily upon the daily lives of our

people. That is a solemn responsibility. And it is more

important than political popularity, or winning the next

election or marching lockstep to the orders of one political

party, or another.

Especially in the case of amending the Constitution, that

responsibility weighs more heavily. For in that instance we

are contemplating changes in our basic, fundamental organic

law--changes that, when once implanted in that revered

document, can only be removed at great difficulty, and which

will impact, quite possibly, upon generations of Americans

who, yet unborn, must trust us to guard their birthright as

Americans.''

Senator Byrd was right--the words of a Constitutional amendment matter deeply. This is the third version of this amendment that has been introduced in the Senate, and it may not be the last. Senator Hatch has publicly toyed for months with introducing a different version of the amendment and Senator Smith is reported to be working on still another version.

The version of the Federal Marriage Amendment before us today reads as follows: ``Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.''

First, the amendment appears to dictate to voters what language they can put in their own State Constitutions. The natural reading of the FMA suggests that voters in a State could not place in their State Constitutions any benefits for same-sex couples that could be defined as ``legal incidents'' of marriage. This limitation is particularly noteworthy in light of the current proceedings in Massachusetts. In response to the Supreme Judicial Court's decision in Goodridge, the Massachusetts Legislature has approved an amendment to the Massachusetts Constitution that would limit marriage to heterosexual unions but provide many of the benefits of marriage to same-sex couples through civil unions. This amendment is supported by Governor Mitt Romney, who testified before the Judiciary Committee last month.

Yet it appears that the Massachusetts amendment might be rendered unenforceable if the FMA were adopted, for no court would be permitted to ``construe'' the Massachusetts Constitution to provide for civil unions, which surely provide many of the ``legal incidents'' of marriage. Without judicial recognition of civil unions, the rights created for gay couples under the Massachusetts Constitution would not be worth the paper they are written on, even if they were approved by a majority of the State's voters.

Governor Romney told the Judiciary Committee that he somehow supports both the Federal and Massachusetts amendment, and did not believe they conflicted. I do not see how he can hold that position. Neither did former Representative Bob Barr, a conservative Republican from Georgia, who testified before the Committee at the same hearing. Congressman Barr said:

Governor Romney essentially is here to ask the Congress to

step in and have the federal government invalidate the

actions of the highest state court in his state, and also to

strangle before its birth the proposed state constitutional

amendment that his own state legislature passed this year.

That State constitutional amendment, if passed next session

and ratified by his state's voters, would deny marriage

rights to same-sex couples, but also provide civil unions.

The Federal Marriage Amendment, however, would invalidate any

civil union provided by the Massachusetts state

constitution, and of course would also invalidate all

same-sex marriages in the state.''

Second, it is unclear from the language of the FMA whether its prohibition on ``construing'' a Constitution is limited to the judicial branch. From the plain text of the amendment, executive branch officials--from a Governor to county clerks--would similarly be prohibited from construing even a duly-passed State constitutional amendment to provide for the ``legal

incidents'' of marriage, whatever those should be. This is a potentially breathtaking imposition on our States and their officials.

Third, the term ``legal incidents'' is itself extraordinarily vague. Since the amendment did not go through the proper channels, we have no Committee report language to clarify this or any of the other vague elements of this amendment. We do have the thoughts of Marilyn Musgrave, the House sponsor of the FMA, from a memo she produced to explain the meaning of the amendment. In her view, ``legal incidents'' include, among many other things, the right to bring actions for the wrongful death of a partner, rights and duties under adoption law, and even the right to hospital visitation. Her sweeping view would thus prevent any court anywhere from finding that any State constitutional provision might protect a person's right to visit their same-sex partner in a hospital. And in the absence of a Committee report on the amendment, courts would likely have little choice but to give substantial weight to her view.

Fourth, although some supporters of the proposed amendment state categorically that the amendment leaves State legislatures free to pass civil union laws, that claim is also open to serious doubt. Surely Senator Allard and his allies cannot mean to put the Senate through this ordeal only to put the word ``marriage'' off limits to same-sex couples. Should a State pass a law that provides for marriage in all but name, would supporters of this amendment not mount legal challenges based on the amendment's first sentence? Indeed, two of the amendment's intellectual godfathers--Professors Robert George of Princeton and Gerald Bradley of Notre Dame Law School--have said they believe it would forbid civil unions that were sufficiently similar to marriage.

Fifth, the application of the amendment is not even limited to State actors, but would also apparently bind the behavior of private organizations, including private religious organizations. The first sentence of the amendment purports to define marriage for all time and for all purposes. In other words, no one could marry same-sex couples, regardless of whether that person was acting on behalf of the State. This is one of the reasons why so many religious organizations oppose this amendment, including the Episcopal Church, USA, the Alliance of Baptists, and the American Jewish Committee.

The only amendment that binds private parties is the Thirteenth, which forbids slavery anywhere in the United States. Given the stain of slavery on our nation, and its inherent evil, the Thirteenth Amendment's sweeping ban is obviously appropriate. To take that extraordinary step here and to impose a definition upon all churches and faiths to tell them what they must do is overreaching and inappropriate. Marriage is first and foremost a religious concept and institution. Respecting religion, the Federal Government ought to stay out of defining what a religious definition of marriage can be.

One thing we can say with certainty about this amendment is that if it is passed, it will present a field day for litigation.

This amendment is all the more mean-spirited because it is unnecessary. Unless we are planning to use the constitutional process to overturn a single State's marriage policy--a purpose that I doubt has the support of even one-third of this body--the only possible rationale for the amendment is to authorize States not to recognize same-sex marriages performed in other States. This rationale is already accomplished, however, by both the inherent right of States to establish their own policies regarding marriage and by the Defense of Marriage Act, which Congress passed and President Clinton signed in 1996.

Many proponents of this amendment have stated as fact that the Constitution's Full Faith and Credit Clause requires States to give the force of law to marriage licenses issued by other States. This is simply not the case. Lea Brilmayer, a professor at Yale Law School and an expert on the Full Faith and Credit clause, told the Judiciary Committee in March that the Clause was designed and has been interpreted to ensure that judgments entered by one State's courts are respected in other States. Marriage licenses are not judgments, she said, and they have ``never received the automatic effect given to judicial decisions.'' Rather, ``courts have not hesitated to apply local public policy to refuse to recognize marriages entered into in other states.''

Moreover, Professor Brilmayer testified that the Full Faith and Credit Clause ``has never been understood to require recognition of marriages entered into in other states that are contrary to local `public policy.' The `public policy' doctrine, which is well recognized in conflict of laws, frees a state from having to recognize decisions by other States that offend deeply held local values.''

Under this long-established ``public policy'' doctrine, the nearly 40 States that have elected to pass their own ``Defense of Marriage'' acts would be expected not to have to recognize a same-sex marriage from Massachusetts. Of course, the small minority of States that have not passed such laws are free to pass them at any time. If they do not do so, just maybe preventing the recognition of other States' gay marriages is not a burning issue for their citizens.

As the Judiciary Committee has learned, the Constitution places no requirement on Pennsylvania to recognize a gay marriage from Massachusetts. In the unlikely event that Federal courts take a different view and alter the historic understanding of the Full Faith and Credit Clause, however, the Defense of Marriage Act provides an additional layer of security for States that do not wish to recognize same-sex marriage.

The federal law says that no State shall be required to give effect to any public act, record, or judicial proceeding of another state respecting a relationship between persons of the same sex that is treated as a marriage. It is the law of the land, and no court has found it to be unconstitutional. It seems to me that DOMA is presumptively constitutional, especially since the Full Faith and Credit Clause itself provides Congress with the power to direct the Clause's interpretation:

Full faith and credit shall be given in each state to the

public acts, records, and judicial proceedings of every other

state. And the Congress may by general laws prescribe the

manner in which such acts, records, and proceedings shall be

proved, and the effect thereof.

Some of my colleagues have suggested that we need to amend the Constitution now because the Supreme Court may either (a) invalidate DOMA and find that the Full Faith and Credit Clause requires 50-State recognition of Massachusetts gay marriages; or (b) go beyond even that analysis by finding a right to same-sex marriage under the Equal Protection Clause of the Fourteenth Amendment.

My initial reaction to these predictions about the judiciary is that they do not square with the Rehnquist Court I have been watching for the last 17 years. It is true that the Supreme Court found last year, in Lawrence v. Texas, that Texas and a handful of other States could no longer make it a crime for homosexual couples to engage in sexual acts in the privacy of their own home. And it is true that many of those who support the Federal Marriage Amendment decried this imposition on Texas's right to punish its gay and lesbian citizens. It is a far leap, however, from saying that gay couples should not be thrown in jail and saying that they have a Constitutional right to marry. The comparisons that some are making between the Lawrence and Goodridge decisions are vastly overblown.

My second reaction, however, is the one that should move the Senate to reject this amendment. Perhaps my colleagues' fearful predictions about the activism of the Rehnquist court will come true. More likely, they will not. But Congress's job is not to imagine outcomes that appellate courts or even the Supreme Court might conceivably reach and preemptively amend the Constitution to prevent them. We have had enough difficulties during this Congress stemming from a preemptive war--we need not add a new preemptive theory to our arsenal. When it comes to the Constitution, it is simply wrong for the Senate to ``shoot first and ask questions later.'' Rather, it is our duty to show restraint.

If the Court should reverse 200-plus years of understanding of the Full

Faith and Credit Clause, or find that the Equal Protection Clause prohibits limiting marriage to heterosexual couples, a future Congress can react to that decision however it sees fit. That Congress will act in a way consistent with the views and circumstances of their time.

I believe preemptive action on this matter would set a precedent that both Republicans and Democrats in this body would come to regret. Congressman Barr, the author of the Defense of Marriage Act, illuminated this point when he testified last month. Congressman Barr said:

In treating the Constitution as an appropriate place to

impose publicly contested social policies, [the FMA] would

cheapen the sacrosanct nature of that document, opening the

door to future meddling by liberals and conservatives. . . .

The Founders created the Constitution with such a daunting

amendatory process precisely because it is only supposed to

be changed by overwhelming acclamation. It is so difficult to

revise specifically in order to guard against the fickle

winds of public opinion blowing counter to basic individual

rights like speech or religion.

Part of Congressman Barr's testimony should be of particular note to my conservative colleagues. He said, ``We know that the future is uncertain, and our fortunes unclear. I would like to think people will think like me for a long time to come, but if they do not, I fear the consequences of the FMA precedent. Could liberal activists use the FMA argument to modify the Second Amendment? Or force income redistribution? Or ban tax cuts?'' This should be food for thought for all those--from the right or from the left--who would use the Constitution as a playground for their policy preferences.

This is a sad day for the Senate. We all take an oath to uphold the Constitution of the United States. But when the Republican majority brings a constitutional amendment to the floor in defiance of our normal procedures, and with full knowledge that it will not pass, it demonstrates a fundamental disrespect for our Constitution and for this institution, the United States Senate.

I close by echoing the words of Senator Byrd from the debate on the Balanced Budget Amendment: ``What is really wanted by some in this body is not the amendment itself, but an issue with which to whip its opponents. This is simple politics, my colleagues. And it is politics at its most unappealing and destructive level.''

I will have more to say about the Federal Marriage Amendment as this debate proceeds.

I can't imagine I will speak much more than probably 10, 15 minutes at most.

Following me.

Madam President, there is another important issue we have before the Senate. We don't yet have a Federal budget resolution, even though we were supposed to have done that this spring.

It is July. We have considered only one appropriations bill, and that has not been resolved with the House. We have not yet even considered the other 12 appropriations bills, including the Homeland Security appropriations bill. These are usually considered must-pass legislation, whether there is a Republican-controlled Congress or a Democratic-controlled Congress. Instead of passing these bills, however, we sit around not doing any work on the things that we absolutely need to do. We are working on political matters. The divisive constitutional amendment to federalize marriage is an example of that.

For 215 years, we have left it up to States to define marriage. All of a sudden, are we going to tell them they do not know what they are doing? Are we going to take over the marriage issue from the States and define it for them? Are we going to treat this as a matter of urgency, that we must proceed to immediately while setting aside homeland security and the budget?

Heck, the Senate Judiciary Committee, which held a few hearings on this issue, has not even considered the language of this Federal Marriage Amendment. We have not even voted on it in the Republican- controlled Judiciary Committee. The fact that the Committee has been bypassed, and the FMA brought immediately to the Senate floor, is an unmistakable sign that political expediency--and haste in the furtherance of political expediency--is why it is here.

Political expediency, whatever it takes, seems to be the leadership's guidepost, not the pressing needs of the country for homeland security funding or a budget. I am afraid that the paramount thing for the Republican leaders in this body at the moment are such divisive matters as federalizing marriage law by constitutional amendment. I remember the days when the Republican Party would say we are going to keep the Federal Government out of the doings of the States. Well, now we seem not only to politicize judicial nominations, making independent judges a wing of the Republican Party, but to politicize the Constitution itself.

I think it is wrong. I think it is corrosive to seek partisan advantage at the expense of the independent Federal judiciary or our national charter, the Constitution. Maybe we should have a corollary to the Thurmond rule, which is that in Presidential elections, after the Fourth of July we do not consider judicial nominations, except by unanimous consent. Maybe we should have something called the ``Durbin rule.''

The senior Senator from Illinois observed that we should prohibit consideration of constitutional amendments within 6 months of a Presidential election. I think he is right in pointing out that the Constitution is too important to be made a bulletin board for campaign sloganeering. Somehow we should find a way to restrain the impulse of some to politicize the Constitution. I think we have 50 or 60 proposed constitutional amendments before the Congress right now.

While we are doing this political posturing, let us talk about what we might have been doing. I will take one issue, homeland security. This week, we received further warnings from the Republican administration about impending terrorist attacks. So what are we doing in the Senate to respond to those attacks? Why, we are going to launch a debate over gay marriage.

The Homeland Security appropriations bill is stalled, but notwithstanding the warnings by the administration that there are impending terrorist attacks, first and foremost the Senate has to have a constitutional amendment banning gay marriage. We cannot take time to bring up the Homeland Security bill, something that will probably pass in a day and a half.

If the American people are uneasy about their security during the summer traveling season, that may be because of the conflicting signals they are receiving from the Government. At least this time it was Secretary Ridge and not the Attorney General who appeared on our Nation's television screens to warn of an impending al-Qaida attack. We may remember a few weeks ago, when the Attorney General made dire warnings the same day that Secretary Ridge, the Secretary of Homeland Security, told Americans to go out and have some fun this summer. The American people must wonder what is going on. They must find it hard to believe what is going on in this Senate, how we are using our time now.

I believe Congress should get on with providing the funding needed to address our security vulnerabilities, even at the cost of forsaking some of the President's tax cuts or a fruitless debate on marriage.

We have heard the administration say we are in dire danger. We have given them everything they have wanted: the Homeland Security Department; we have gone deep into debt; we have actually threatened the Social Security fund by our huge deficits to give hundreds of billions of dollars on the fight against terrorism.

It appears we simply cannot meet our needs with the resources we have available. But what do we do? Do we address this in the Senate, the greatest deliberative body on Earth? Heck, no. We are going to talk about gay marriages.

Of course, the Republican Leadership has a history of not getting too concerned about the substance of homeland security issues. The issue of homeland security has been politicized from the start, and even the creation of the Department of Homeland Security is a case study on the political partisanship of my friends in the Republican Party. We may recall that at first they resisted strongly the idea of having a Department of Homeland Security especially the President himself.

Then we heard the partisan attacks from many Republicans on the 9/11 Commission, which the administration allowed to go forward in the first place only after great resistance.

I hope and pray we can return to a time as we used to do, and as it was when I came to the Senate, when security issues were not used for partisan effect or political benefit. Given the track record of this administration for secrecy, unilateralism, overreaching, and abject partisanship, however, I certainly understand why many question their assertions. An administration that can hide legal memoranda justifying torture and then, when forced to acknowledge them, disavow them, does not earn our trust. An administration that reports that terrorism had decreased last year and then, when questioned, had to admit that it was wrong and reissue the report has basic credibility problems.

So I wish we would turn away from these divisive legislative maneuvers and work together on the Nation's agenda. The senior member of the Senate, Senator Byrd, said it all better than I can. He spoke yesterday afternoon about the need to get about our business and the Nation's business. Senator Byrd offered wise counsel to the Republican leadership. I wish it had been listened to.

Roll Call reported earlier this week that this week's activities amount to a showdown prompted by the Republicans' desire for a wedge issue they can use with undecided voters in November. That is a shame and a sham. When we should be considering measures to strengthen homeland security, Republican partisans are focused on devising wedge issues for partisan political purposes. Well, that is wrong. I urge the Republican administration and the Republican leaders in the House and the Senate to come back to the work of Congress, not the work of political partisans. Let us complete our work for the American people.

The Senate does not have to be a battlefront for the Presidential campaign. There is plenty of time for that. In fact, I wonder if we are not setting ourselves up for people to say during the election season that the Republican-controlled Congress did not do the work of the people. Let us get on with doing it. One of the first things we can do is take the stalled Homeland Security appropriations bill and actually vote on it.

If the hundreds of billions of dollars we have spent so far have not made us safe, then let us debate that and find what will.

I yield the floor.

Mr. President, I am struck by the way the Republican majority is managing the Senate. I have noted that we do not yet have a Federal budget resolution. It is July and we have as yet considered only one appropriations bill, and that one bill still has to be resolved with the House. We have yet even to consider the other 12 appropriations bills that are normally regarded as ``must pass'' legislation--that is unless Republicans intend to shut the Government down, again.

Instead, the Republican majority has apparently decided to devote the July work period to partisan political matters. We are reading press accounts about Republicans maneuvering to bring the divisive constitutional amendment to federalize marriage to this floor for debate. The Senate Judiciary Committee has held a few hearings on this issue but has yet to consider language of a proposed constitutional amendment. Bypassing the committee of jurisdiction to bring this or any constitutional amendment to the Senate floor is an unmistakable sign that political expediency and haste, in the furtherance of political expediency, are the guiding principles for the Republican majority in scheduling the Senate's time. Political expediency--whatever it takes-- is their guidepost, not the pressing needs of the country to act on a budget or on the annual appropriations bills. Paramount to Republican leaders at the moment are such matters as the divisive, hot-button topic of federalizing marriage law, by constitutional amendment. Republican partisans seem intent on politicizing not only judicial nominations but also the Constitution itself during this election cycle.

Democrats fulfilled our commitment to the White House when we considered the 25th judicial nomination that was part of our arrangement this year. I read that Republicans will now insist on devoting a good portion of the Senate's remaining time to the most divisive and contentious of the President's judicial nominees. They are intent on following the advice of the Washington Times editorial page to, they believe, make Democrats look bad, when in fact it is the President who is seeking to make judicial confirmations a partisan political issue. Democrats have cooperated in confirming almost 200 judges already. That is more than the total confirmed in President Clinton's last term, the President's father's presidency or in President Reagan's first term. Federal judicial vacancies have been reduced to their lowest level in decades.

It is wrong and it is corrosive to seek partisan advantage at the expense of the independent Federal judiciary or our national charter, the Constitution. I wonder in Presidential election years whether we should not have a corollary to the ``Thurmond Rule'' on judicial nominations that we could call the ``Durbin Rule.'' The astute Senator from Illinois recently observed that we should prohibit consideration of constitutional amendments within 6 months of a Presidential election. He is right in pointing out that the Constitution is too important to be made a bulletin board for campaign sloganeering. We should find a way to restrain the impulse of some to politicize the Constitution.

This week the Republican leadership has stalled action for days on any legislation as it resists amendments to the class action legislation from both Democratic and Republican Senators. The Republican leadership's handling of this bill is a prescription for nonaction, not for legislative movement forward.

Just yesterday Roll Call published an insightful editorial lamenting what it called the ``Big Mess Ahead.'' I think we may already be stuck in that big mess. The editorial noted that ``July should be appropriations month in the Senate.'' I agree. This traditionally has been when we were focused on getting our work done and making sure the funding for the various functions of the Federal Government were appropriated by the Congress, in fulfilling Congress's responsibilities and its power of the purse. Not this year.

Roll Call observes that ``the second session of the 108th Congress is poised to accomplish nothing.'' The way things are going, under Republican leadership, this session will make the ``do-nothing'' Congress against which President Harry Truman ran seem like a legislative juggernaut by comparison.

I ask unanimous consent that the July 7, 2004, Roll Call editorial be printed in the Record.

Mr. President, a number of us remain concerned about the abuse of foreign prisoners, and about the guidance provided by the President's lawyers with regard to torture. Much has happened since June 17, 2004, when the Judiciary Committee defeated, on a party-line vote, a subpoena resolution for documents relating to the interrogation and treatment of detainees and June 23, when the Senate defeated an amendment to the Defense Authorization bill on a party-line vote that would have called upon the Attorney General to produce relevant documents to the Senate Judiciary Committee. Because of continued stonewalling by the administration, we remain largely in the dark.

Several Republican Senators have indicated that we should give the administration more time to respond to inquiries, although some of us had been asking for information for more than a year. The Republican administration continues its refusal to provide the documents that have been requested and refused even to provide an index of the documents being withheld.

The Department of Justice admitted in the July 1 letter that it had ``given specific advice concerning specific interrogation practices,'' but would not disclose such advice to members of this committee, who are duly elected representatives of the people of the United States, as well as members of the committee of oversight for the Department of Justice. USA Today reported on June 28, 2004, that the Justice Department issued a memo in August 2002 that ``specifically authorized the CIA to use `waterboarding,'' ' an interrogation technique that is designed to make a prisoner believe he is suffocating. This memo is reportedly classified and has not been released. According to USA Today: ``Initially, the Office of Legal Counsel was assigned the task of approving specific interrogation techniques, but high-ranking Justice Department officials intercepted the CIA request, and the matter was

handled by top officials in the deputy attorney general's office and Justice's criminal division.''

So while former administration officials grant press interviews and write opinion articles denying wrongdoing; while the White House and Justice Department hold closed briefings for the media to disavow the reasoning of this previously relied upon memoranda and to characterize what happened; Senators of the United States are denied basic information and access to the facts. The significance of such unilateralism and arrogance shown to the Congress and to its oversight committees cannot continue.

I have long said that somewhere in the upper reaches of this administration a process was set in motion that rolled forward until it produced this scandal. To put this scandal behind us, first we need to understand what happened. We cannot get to the bottom of this until there is a clear picture of what happened at the top. It is the responsibility of the Senate, including the Judiciary Committee, to investigate the facts, from genesis to final approval to implementation and abuse. The documents must be subject to public scrutiny, and we will continue to demand their release.

There is ample evidence that American officials, both military and CIA, have used extremely harsh interrogation techniques overseas, and that many prisoners have died in our custody. Administration officials admit that 37 foreign prisoners have died in captivity, and several of these cases are under investigation, some as homicides. On June 17, David Passaro, a CIA contractor, was indicted for assault for beating an Afghan detainee with a large flashlight. The prisoner, who had surrendered at the gates of a U.S. military base in Afghanistan, died in custody on June 21, 2003, just days before I received a letter from the Bush administration saying that our Government was in full compliance with the Torture Convention.

Some individuals who committed abusive acts are being punished, as they must be. But what of those who gave the orders, set the tone or looked the other way? What of the White House and Pentagon lawyers who tried to justify the use of torture in their legal arguments? The White House has now disavowed the analysis contained in the August 1, 2002, memo signed by Jay Bybee, then head of the Office of Legal Counsel. That memo, which was sent to the White House Counsel, argued that for acts to rise to the level of torture, they must go on for months or even years, or be so severe as to generate the type of pain that would result from organ failure or even death. The White House and DOJ now call that memo ``irrelevant'' and ``unnecessary'' and say that DOJ will spend weeks rewriting its analysis.

As we all know, on June 22, 2004, the White House released a few hundreds of pages of documents--a self-serving and highly selective subset of materials. The documents that were released raised more questions than they answered. Now, more than two weeks later, none of those issues have been resolved.

For example, the White House released a January 2002 memo signed by President Bush calling for the humane treatment of detainees. Did the President sign any orders or directives after January 2002? Did he sign any with regard to prisoners in Iraq?

Why did Secretary Rumsfeld issue and later rescind tough interrogation techniques? And how did these interrogation techniques come to be used in Iraq, where the administration maintains that it has followed the Geneva Conventions?

Where is the remaining 95 percent of material requested by members of the Senate Judiciary Committee? Why is the White House withholding relevant documents dated after April 2003?

I was gratified that the Senate on June 23 passed an amendment that I offered to the Defense authorization bill that will clarify U.S. policy with regard to the treatment of prisoners and increase transparency. But the stonewalling continues: The Pentagon opposes this amendment. I am hopeful that we will prevail in keeping this provision in the bill. Five Republican Senators supported the amendment against an attempt to table it. I thank each of them. I also want to commend the Senate for adopting, also as part of the Defense authorization bill, the Durbin amendment against torture, and I want to acknowledge an important step taken in the House on the same day. The House Appropriations Committee added language to the 2005 Justice Department spending bill that would prohibit any department official or contractor from providing legal advice that could support or justify use of torture.

As it completed its term, the Supreme Court issued its decisions in highly significant cases involving the legal status of so-called enemy combatants. The Court reaffirmed the judiciary's role as a check and a balance, as the Constitution intends, on power grabs by the executive branch. The Court ruled that the Bush administration's assertion that the President can hold suspects incommunicado, indefinitely and without charge, is as arrogant as are its legal arguments that the President can authorize torture. No President is above the law or the Constitution. The Court properly rejected the administration's plea to `just trust us' and repudiated its assertion of unchecked power.

This Senate and in particular the Judiciary Committee continues to fall short in its oversight responsibilities. President Bush has said he wants the whole truth, but he and his administration instead have circled the wagons to forestall adequate oversight. The President must order all relevant agencies to release the memos from which these policies were devised. There needs to be a thorough, independent investigation of the actions of those involved, from the people who committed abuses, to the officials who set these policies in motion. Only when these actions are taken will we begin to heal the damage that has been done.

We need to get to the bottom of this scandal if we are to play our proper role in improving security for all Americans, both here at home and around the world.

Mr. President, I want to address a recent court decision that has exposed America's e-mails to snooping and invasive practices. The 2-to-1 decision by the First Circuit Court of Appeals in a case called United States v. Councilman has dealt a serious blow to online privacy. The majority--both, Republican-appointed judges--effectively concluded that it was permissible for an Internet Service Provider to comb through its customers' emails for corporate gain. If allowed to stand, this decision threatens to eviscerate Congress's careful efforts to ensure that privacy is protected in the modern information age.

The indictment in Councilman charged the defendant ISP with violating the Federal Wiretap Act by systematically intercepting, copying, and then reading its customers' incoming emails to learn about its competitors and gain a commercial advantage. This is precisely the type of behavior that Congress wanted to prohibit when it updated the Wiretap Act in 1986, as part of the Electronic Communications Privacy Act (ECPA), to prohibit unauthorized interceptions of electronic communications. Congress's goal was to ensure that Americans enjoyed the same amount of privacy in their online communications as they did in the offline world. Just as eavesdroppers were not allowed to tap phones or plant ``bugs'' in order to listen in on our private conversations, we wanted to ensure that unauthorized eyes were not peering indiscriminately into our electronic communications.

ECPA was a careful, bipartisan and long-planned effort to protect electronic communications in two forms--from real-time monitoring or interception as they were being delivered, and from searches when they were stored in record systems. We recognized these as different functions and set rules for each based on the relevant privacy expectations and threats to privacy implicated by the different forms of surveillance.

The Councilman decision turned this distinction on its head. Functionally, the ISP in this case was intercepting emails as they were being delivered, yet the majority ruled that the relevant rules were those pertaining to stored communications, which do not apply to ISPs. The majority rejected the Government's argument that an

intercept occurs--and the Wiretap Act applies--when an email is acquired contemporaneously with its transmission, regardless of whether the transmission may have been in electronic storage for milliseconds at the time of the acquisition. As the dissenting judge found, the Government's interpretation of the Wiretap Act is consistent with Congressional intent and with the realities of electronic communication systems. I agree, and urge the Justice Department to continue to press this position in the courts. The Department has been a powerful proponent of privacy rights in this case, and I commend its efforts.

I also will be taking a close look at possible changes to the law to ensure that there is no room to skirt the wiretap provisions and engage in the type of privacy violation at issue in the Councilman case. We have an obligation to ensure that our laws keep up with technology, and it may be that advances in communications warrant change. It is imperative that we continue to safeguard privacy adequately in our modern information age.

In a world where Americans are already inundated with targeted mass marketing and mailings, the Councilman decision opens the door to even more invasive activity. With this kind of precedent, ISPs need not offer free services in exchange for reduced online privacy. They could simply snoop in secret, and their unsuspecting customers would never know.

The Councilman decision also opens the door to Government over- reaching. For practical reasons, surveillance devices are often installed at the point of millisecond-long temporary storage prior to an e-mail's arrival at its final destination. To date, law enforcement agencies have treated this as what it is--an interception--and have sought appropriate wiretap approval. But this decision allows law enforcement agents to potentially skip the rigors of the wiretap laws, and perhaps could unleash unrestrained use of search programs like Carnivore. This outcome belies the realities of electronic communications in today's society, undercuts Congress' intent, and is inconsistent with the current approach to such communications in law enforcement practice.

The Councilman decision creates an instant and enormous gap in privacy protection for email communications, and we need to address it swiftly and responsibly. I urge my colleagues to make this a top priority as we finish up the session. I ask unanimous consent to have printed in the Record four recent editorials and articles on this issue.

Mr. President, today I am introducing a bill, the Anti- Phishing Act of 2004, that targets a large and growing class of crime that is spreading across the Internet.

Phishing is a rapidly growing class of identity theft scams on the Internet that is causing both short-term losses and long-term economic damage.

In the short-term, these scams defraud individuals and financial institutions. Some estimates place the cost of phishing at over two billion dollars just over the last 12 months.

In the long run, phishing undermines the Internet itself. By making consumers uncertain about the integrity of the Internet's complex addressing system, phishing threatens to make us all less likely to use the Internet for secure transactions. If you can't trust where you are on the web, you are less likely to use it for commerce and communications.

Phishing is spelled ``P-H-I-S-H-I-N-G.'' Those well-versed in popular culture may guess that it was named after the phenomenally popular Vermont band, Phish. But phishing over the Internet was in fact named from the sport of fishing, as an analogy for its technique of luring Internet prey with convincing email bait. The ``F'' is replaced by a ``P-H'' in keeping with a computer hacker tradition.

Phishing attacks usually start with emails that are, in Internet jargon, ``spoofed.'' That is, they are made to appear to be coming from some trusted financial institution or commercial entity. The spoofed email usually asks the victim to go to a website to confirm or renew private account information. These emails offer a link that appears to take the victim to the website of the trusted institution. In fact the link takes the victim to a sham website that is visually identical to that of the trusted institution, but is in fact run by the criminal. When the victim takes the bait and sends their account information, the criminal uses it--sometimes within minutes--to transfer the victim's funds or to make purchases. Phishers are the new con artists of cyberspace.

To give an idea of how easy it is to be fooled, we have reproduced some recent phishing charts, with the help of the Anti-Phishing Working Group. These are just two examples of a problem that affects countless companies. The website on the right is an actual website of MBNA, a well-established financial institution and credit card issuer. On the left is a recently discovered phishing site that mimicked the MBNA site.

As you can see, the two websites are practically identical. Both have the MBNA logo, and both have the same graphics, in the same layout. But if you end up going to the website on the left, when you enter your account information, you are giving it to an identity thief.

As another example, the next two websites both appear to be from eBay. Again, the one on the right is from the genuine website. The one on the left is a fake website that is controlled by a phisher. As you can see, if you end up at the website on the left, it would be next to impossible to know that you are not at the real eBay website. Informed Internet users can avoid this problem if they simply use their web browser to go to the website, instead of using a link sent to them in an email, but far too many people do not do this.

This is a growing problem. Phishing is on the rise. In recent months there has been an explosion of these types of attacks. As you can see from the next chart, these attacks are growing at an alarming rate. Roughly one million Americans already have been victims of phishing attacks.

And phishing attacks are increasingly sophisticated. Early phishing attacks were by novices, but there is evidence now that some attacks are backed by organized crime. And some attacks these days include spyware, which is software that is secretly installed on the victim's computer, which waits to capture account information when the victim even goes to legitimate websites.

Phishers also have become more sophisticated in how they cast their huge volumes of email bait on the Internet waters. Security experts recently discovered that vast networks of home computers are being hijacked by hackers using viruses, and then they are rented to phishers--all without the knowledge of the owners of these home computers.

Some phishers can be prosecuted under wire fraud or identity theft statutes, but often these prosecutions take place only after someone has been defrauded. Moreover, the mere threat of phishing attacks undermines everyone's confidence in the Internet. When people cannot trust that websites are what they appear to be, they will not use the Internet for their secure transactions. So traditional wire fraud and identity theft statutes are not sufficient to respond to phishing.

The Anti-Phishing Act of 2004 protects the integrity of the Internet in two ways. First, it criminalizes the bait. It makes it illegal to knowingly send out spoofed email that links to sham websites, with the intention of committing a crime. Second, it criminalizes the sham websites that are the true scene of the crime.

It makes it illegal to knowingly create or procure a website that purports to be a legitimate online business, with the intent of collecting information for some criminal purpose.

There are important First Amendment concerns to be protected. The Anti-Phishing Act protects parodies and political speech from being prosecuted as Phishing.

We have worked closely with various public interest organizations to ensure that the Anti-Phishing Act does not impinge on the important democratic role that the Internet plays.

To many Americans, phishing is a new word. It certainly is a new form of an old crime. It also is a serious crime, and we need to act aggressively to keep phishing from infecting the Internet and from eroding the public's trust in online commerce and communication. I look forward to working with others in the Senate in addressing this growing threat to the Internet, with effective and responsible action.

Again, this is called the Anti-Phishing Act. It targets a large and growing class of crime that is spreading across the Internet.

Phishing is a rapidly growing class of identity theft scams. It causes both short-term losses, but long-term economic problems. In the short-term, these scams defraud individuals and financial institutions.

To give some idea that this is not a minor matter, some estimates place the cost of phishing at over $2 billion over the last 12 months. You can imagine the outcry in this country if they said we had $2 billion worth of bank robberies in that same period of time. But it is not only the economic loss that undermines the Internet itself; it makes consumers uncertain about the integrity of the Internet's complex addressing system. It makes us all less apt to use it for commerce and communication, because if you cannot trust where you are on the Web, you are not going to use it for commerce or communication.

Incidentally, fishing is spelled P-H-I-S-H-I-N-G. Those who are well versed in popular culture might think it was named after the phenomenally popular Vermont band called Phish. But phishing over the Internet was named for the sport of fishing, as an analogy for its technique of luring Internet prey with a convincing e-mail bait. The ``F' was replaced by ``PH'' in keeping with computer hacker tradition.

Phishing usually starts with e-mails that are, in Internet jargon, ``spoofed.'' They appear to come from some trusted commercial entity or financial institution. The spoofed e-mail asks the victim to go to a Web site and confirm their identity, in effect, their Social Security number, credit card numbers, and so on. What it does is, the victim thinks they are going to a trusted institution, perhaps one they have dealt with for years. Instead, it takes them to a sham Web site that is visually identical to that of the trusted institution, but it is run by a criminal. When the victim takes the bait, when they send their account information, of course, the criminal uses it. Sometimes they use it within minutes. They can transfer the victim's funds or make purchases. These phishers are new con artists of cyberspace.

I will give you an idea of how easy it is to do it. Here on this chart we have the genuine Web site. We actually had to mark them as ``genuine Web site'' and ``fake Web site'' because they look so identical. I am a heavy user of the Internet, and I could not tell them apart. On the other side, of course, is the fake Web site. They both have the MBNA logo. That is a trusted financial institution. They have the same graphic layout.

Suppose you were a customer of MBNA and they asked you to put your user name in, your password, and so on, and you go on there and they would continue to ask information. You would have given up your account number, whatever ID number you use, and it could be 20 minutes later, when you go on the right site and you want to withdraw some money or make a cash transfer, you may find it is all gone in that short time.

In fact, we also have a chart for eBay. I wasn't going to show it, but it is worthwhile, I think. We will show the two from eBay. Again, I have had them marked ``genuine Web site'' and ``fake Web site.'' Here is the genuine one. For those who use PayPal, it is increasingly used if you are using eBay. Anybody who has done that is well aware of PayPal. It is something you could be safe with, you know where your money is going, you know who is handling it, and you know you are going to get paid for something you might have sold.

Look what we have here. When you look at it, it is hard to tell the difference. Of course, the internal address is different. What do you do? You send money, you pay money, you are supposed to receive money. You are not going to do it. Somebody else is going to do it and they are going to walk off not only with your money but with your trust of the Internet.

That is why it is important that we do this, that we have some way of criminalizing this. We have in every one of our States businesses that thrive and survive because they can use the Internet. This is trying to stop them. Again, we must address this growing threat to Internet users.

Mr. President, today I am introducing a bill, the Anti- Phishing Act of 2004, that targets a large and growing class of crime that is spreading across the Internet.

Phishing is a rapidly growing class of identity theft scams on the Internet that is causing both short-term losses and long-term economic damage.

In the short-term, these scams defraud individuals and financial institutions. Some estimates place the cost of phishing at over two billion dollars just over the last 12 months.

In the long run, phishing undermines the Internet itself. By making consumers uncertain about the integrity of the Internet's complex addressing system, phishing threatens to make us all less likely to use the Internet for secure transactions. If you can't trust where you are on the web, you are less likely to use it for commerce and communications.

Phishing is spelled ``P-H-I-S-H-I-N-G.'' Those well-versed in popular culture may guess that it was named after the phenomenally popular Vermont band, Phish. But phishing over the Internet was in fact named from the sport of fishing, as an analogy for its technique of luring Internet prey with convincing email bait. The ``F'' is replaced by a ``P-H'' in keeping with a computer hacker tradition.

Phishing attacks usually start with emails that are, in Internet jargon, ``spoofed.'' That is, they are made to appear to be coming from some trusted financial institution or commercial entity. The spoofed email usually asks the victim to go to a website to confirm or renew private account information. These emails offer a link that appears to take the victim to the website of the trusted institution. In fact the link takes the victim to a sham website that is visually identical to that of the trusted institution, but is in fact run by the criminal. When the victim takes the bait and sends their account information, the criminal uses it--sometimes within minutes--to transfer the victim's funds or to make purchases. Phishers are the new con artists of cyberspace.

To give an idea of how easy it is to be fooled, we have reproduced some recent phishing charts, with the help of the Anti-Phishing Working Group. These are just two examples of a problem that affects countless companies. The website on the right is an actual website of MBNA, a well-established financial institution and credit card issuer. On the left is a recently discovered phishing site that mimicked the MBNA site.

As you can see, the two websites are practically identical. Both have the MBNA logo, and both have the same graphics, in the same layout. But if you end up going to the website on the left, when you enter your account information, you are giving it to an identity thief.

As another example, the next two websites both appear to be from eBay. Again, the one on the right is from the genuine website. The one on the left is a fake website that is controlled by a phisher. As you can see, if you end up at the website on the left, it would be next to impossible to know that you are not at the real eBay website. Informed Internet users can avoid this problem if they simply use their web browser to go to the website, instead of using a link sent to them in an email, but far too many people do not do this.

This is a growing problem. Phishing is on the rise. In recent months there has been an explosion of these types of attacks. As you can see from the next chart, these attacks are growing at an alarming rate. Roughly one million Americans already have been victims of phishing attacks.

And phishing attacks are increasingly sophisticated. Early phishing attacks were by novices, but there is evidence now that some attacks are backed by organized crime. And some attacks these days include spyware, which is software that is secretly installed on the victim's computer, which waits to capture account information when the victim even goes to legitimate websites.

Phishers also have become more sophisticated in how they cast their huge volumes of email bait on the Internet waters. Security experts recently discovered that vast networks of home computers are being hijacked by hackers using viruses, and then they are rented to phishers--all without the knowledge of the owners of these home computers.

Some phishers can be prosecuted under wire fraud or identity theft statutes, but often these prosecutions take place only after someone has been defrauded. Moreover, the mere threat of phishing attacks undermines everyone's confidence in the Internet. When people cannot trust that websites are what they appear to be, they will not use the Internet for their secure transactions. So traditional wire fraud and identity theft statutes are not sufficient to respond to phishing.

The Anti-Phishing Act of 2004 protects the integrity of the Internet in two ways. First, it criminalizes the bait. It makes it illegal to knowingly send out spoofed email that links to sham websites, with the intention of committing a crime. Second, it criminalizes the sham websites that are the true scene of the crime.

It makes it illegal to knowingly create or procure a website that purports to be a legitimate online business, with the intent of collecting information for some criminal purpose.

There are important First Amendment concerns to be protected. The Anti-Phishing Act protects parodies and political speech from being prosecuted as Phishing.

We have worked closely with various public interest organizations to ensure that the Anti-Phishing Act does not impinge on the important democratic role that the Internet plays.

To many Americans, phishing is a new word. It certainly is a new form of an old crime. It also is a serious crime, and we need to act aggressively to keep phishing from infecting the Internet and from eroding the public's trust in online commerce and communication. I look forward to working with others in the Senate in addressing this growing threat to the Internet, with effective and responsible action.

Again, this is called the Anti-Phishing Act. It targets a large and growing class of crime that is spreading across the Internet.

Phishing is a rapidly growing class of identity theft scams. It causes both short-term losses, but long-term economic problems. In the short-term, these scams defraud individuals and financial institutions.

To give some idea that this is not a minor matter, some estimates place the cost of phishing at over $2 billion over the last 12 months. You can imagine the outcry in this country if they said we had $2 billion worth of bank robberies in that same period of time. But it is not only the economic loss that undermines the Internet itself; it makes consumers uncertain about the integrity of the Internet's complex addressing system. It makes us all less apt to use it for commerce and communication, because if you cannot trust where you are on the Web, you are not going to use it for commerce or communication.

Incidentally, fishing is spelled P-H-I-S-H-I-N-G. Those who are well versed in popular culture might think it was named after the phenomenally popular Vermont band called Phish. But phishing over the Internet was named for the sport of fishing, as an analogy for its technique of luring Internet prey with a convincing e-mail bait. The ``F' was replaced by ``PH'' in keeping with computer hacker tradition.

Phishing usually starts with e-mails that are, in Internet jargon, ``spoofed.'' They appear to come from some trusted commercial entity or financial institution. The spoofed e-mail asks the victim to go to a Web site and confirm their identity, in effect, their Social Security number, credit card numbers, and so on. What it does is, the victim thinks they are going to a trusted institution, perhaps one they have dealt with for years. Instead, it takes them to a sham Web site that is visually identical to that of the trusted institution, but it is run by a criminal. When the victim takes the bait, when they send their account information, of course, the criminal uses it. Sometimes they use it within minutes. They can transfer the victim's funds or make purchases. These phishers are new con artists of cyberspace.

I will give you an idea of how easy it is to do it. Here on this chart we have the genuine Web site. We actually had to mark them as ``genuine Web site'' and ``fake Web site'' because they look so identical. I am a heavy user of the Internet, and I could not tell them apart. On the other side, of course, is the fake Web site. They both have the MBNA logo. That is a trusted financial institution. They have the same graphic layout.

Suppose you were a customer of MBNA and they asked you to put your user name in, your password, and so on, and you go on there and they would continue to ask information. You would have given up your account number, whatever ID number you use, and it could be 20 minutes later, when you go on the right site and you want to withdraw some money or make a cash transfer, you may find it is all gone in that short time.

In fact, we also have a chart for eBay. I wasn't going to show it, but it is worthwhile, I think. We will show the two from eBay. Again, I have had them marked ``genuine Web site'' and ``fake Web site.'' Here is the genuine one. For those who use PayPal, it is increasingly used if you are using eBay. Anybody who has done that is well aware of PayPal. It is something you could be safe with, you know where your money is going, you know who is handling it, and you know you are going to get paid for something you might have sold.

Look what we have here. When you look at it, it is hard to tell the difference. Of course, the internal address is different. What do you do? You send money, you pay money, you are supposed to receive money. You are not going to do it. Somebody else is going to do it and they are going to walk off not only with your money but with your trust of the Internet.

That is why it is important that we do this, that we have some way of criminalizing this. We have in every one of our States businesses that thrive and survive because they can use the Internet. This is trying to stop them. Again, we must address this growing threat to Internet users.