Floor Statements

Mr. President, I am pleased that the Senate is taking up

and passing the Bulletproof Vest Partnership Grant Act of 2003, S. 764,

a bill to reauthorize an existing matching grant program to help State,

tribal, and local jurisdictions purchase armor vests for use by law

enforcement officers.

This bill marks the third time that I have had the privilege of

teaming with my friend and colleague Senator Campbell to work on this

legislation. We authored the Bulletproof Vest Grant Partnership Act of

1998 in response to the tragic Carl Drega shootout in 1997 on the

Vermont-New Hampshire border, in which two State troopers who did not

have bulletproof vests were killed. The Federal officers who responded

to the scenes of the shooting spree were equipped with lifesaving body

armor, but the State and local law enforcement officers lacked

protective vests because of the cost.

Two years later, we successfully passed the Bulletproof Vest

Partnership Grant Act of 2000, and I hope we will go three-for-three

this time around. Senator Campbell brings to our effort invaluable

experience in this area and during his time in the Senate he has been a

leader in the area of law enforcement. As a former deputy sheriff, he

knows the dangers law enforcement officers face when out on patrol. I

am pleased that we have been joined in this effort by Judiciary

Chairman Hatch, Judiciary Committee Senators Biden, Schumer, Kohl and

Feingold, as well as five other Senate cosponsors.

Our bipartisan legislation will save the lives of law enforcement

officers across the country by providing more help to State and local

law enforcement agencies to purchase body armor. Since its inception in

1999, this highly successful Department of Justice program has provided

law enforcement officers in 16,000 jurisdictions nationwide with nearly

350,000 new bulletproof vests. In Vermont, 148 municipalities have been

fortunate to receive funding for the purchase of almost 1200 vests.

Without the federal funding given by this program, I daresay that there

would be close to that number of police officers without vests in

Vermont today.

The Bulletproof Vest Partnership Grant Act of 2003 will further the

success of the Bulletproof Vest Partnership Grant Program by re-

authorizing the program through fiscal year 2007. Our legislation would

continue the Federal-State partnership by authorizing up to $50 million

per year for matching grants to State and local law enforcement

agencies and Indian tribes at the Department of Justice to buy body

armor.

Not only should we reauthorize this program, but also we should work

to see that it is fully funded. While the Bulletproof Vest Partnership

Program funding has been consistently authorized at $50 million per

year, that amount gets whacked in half during the appropriations

process. Law enforcement agencies, however, clearly need our help to

purchase vests--for the current fiscal year, the Bulletproof Vest

Partnership office received funding requests from small jurisdictions,

with populations under 100,000, totaling $59 million--more than double

the funds appropriated. The authorizing legislation requires that

smaller jurisdictions receive priority funding through this program.

Those requests consumed the entire amount of funds available and for

the first time ever awards could only be made to small jurisdictions.

We know that body armor saves lives, but the cost has put these vests

out of the reach of many of the officers who need them. This program

makes it more affordable for police departments of all sizes. Few

things mean more to me than when I meet Vermont police officers and

they tell me that the protective vests they wear were made possible

because of this program. This is the least we should do for the

officers on the front lines who put themselves in danger for us every

day. I want to make sure that every police officer who needs a

bulletproof vest gets one.

I look forward to Senate passage today of the bipartisan Bulletproof

Vest Partnership Grant Act, and I hope the House and the President will

promptly act on this lifesaving legislation to help better to protect

our law enforcement officers.

Reserving the right to object, and I shall not, as the manager of the legislation on the floor, I wonder if the Senator would mind, then, even though the normal order would be for the managers to go first--I have no objection to my more senior colleague going first-- that I be recognized immediately after the Senator from New Mexico.

Mr. President, there is no offense. I know no offense was meant and none was taken.

As the distinguished senior Senator from New Mexico knows, he and I consulted at some length on this nomination, and I was happy to move forward. In fact, while the Senator is still on the floor, why don't we go ahead and pass the nomination. Then I will address the Senate.

Mr. President, with that confirmation of the New Mexican judge, the Senate will now have confirmed 135 judicial nominees of President Bush. These include 35 confirmed so far this year. I mention that number of 35 because I looked back to the third year of the last Presidential term--President Clinton's--when the Republicans controlled the Senate. They only allowed 34 judges to be confirmed in all of 1999. In fact, we have now confirmed more than twice the total number of judges confirmed in the 1996 session, when a Republican Senate majority refused to consider any circuit court nominees and confirmed only 17 district court judges in that entire session.

I mention that, Mr. President, because some believe this has become politicized. Well, maybe it was for 6 years, but it is not politicized now. We have actually reduced judicial vacancies to the lowest number in 13 years. Currently, there are more Federal judges on the bench than at any time in our history. We have confirmed 35 this year, and in the 1996 session with President Clinton, the Republican Senate majority refused to consider any circuit court nominees and only confirmed 17 district court judges during the whole session--half of what we have confirmed already.

At a similar time in President Clinton's term--the third year of the term--they allowed 34 judges to be confirmed the whole year. We have done 35 so far. By every single standard, during the time when the Democrats were in the majority and now, we have confirmed far more judges at a far faster rate for President Bush than the Republican majority allowed during the time of President Clinton.

I note that in the cases of both of today's nominees, the home State Senators include both a Republican and a Democrat Senator who supported the nomination; both worked for the nomination. Working with these home State Senators makes it far easier and makes the confirmation process proceed more smoothly.

I congratulate the nominees confirmed today and the four Senators who came together in a bipartisan effort to get them through.

I yield the floor.

Mr. President, I am pleased that the Senate showed its strong support for the AmeriCorps program on Friday by defeating an amendment to strip the $100 million in emergency fiscal year 2003 funding that we in the Senate Appropriations Committee provided as part of the fiscal year 2004 Legislative branch spending bill. Without these emergency funds, Vermont will lose all but 15 to 20 of its over 100 AmeriCorps volunteers, and communities across the Nation are facing similar losses.

The dedicated young people who have answered AmeriCorps' honorable call to service contribute enormously to the strength of our communities. Whether they are helping to house the homeless, feed the hungry, or keep disadvantaged youth safe in fun and educational afterschool activities, they are often filling a sorely needed gap that the community cannot otherwise fill.

We must not let this vital part of our social safety net to unravel in Vermont and across the Nation, and that is why I am pleased to have cosponsored Senator Mikulski's amendment in the Appropriations Committee to add $100 million for AmeriCorps, and why I voted on Friday to defeat the amendment to strip the money out. I urge all of my colleagues in Congress, as well as the President, to support this emergency funding.

Mr. President, I want to thank the managers of the bill for accepting this amendment, and I also want to thank the White House for its support.

This is an amendment of few words--only seven, in fact, but they are important words. The Millennium Challenge Account, MCA, authorized in this bill, provides for a determination by the Millennium Challenge Board of eligibility of candidate countries for assistance. The Board is to determine whether such a country has demonstrated a commitment to several things, including ``just and democratic goverance,'' ``economic freedom,'' and ``investments in the people of such country.'' I support this. It is long overdue for our foreign assistance to be linked to concrete benchmarks like these. Too often, we have squandered U.S. taxpayer dollars on corrupt, autocratic governments that do not share our values or a commitment to democratic and economic reform.

However, as orignally drafted, the criteria for MCA eligibility do not include a country's commitment to protect the environment. Many governments of developing countries have turned a blind eye or even participated in the wholesale destruction of the timber, mineral and fossil resources that are among a country's greatest source of wealth. In Indonesia and parts of South America, the forests and wildlife are being destroyed at an astounding rate. In Angola, billions of dollars in oil revenues have been stolen by corrupt officials, and this continues today. Other countries are rapidly depleting their scarce water resources, or poisoning their rivers and lakes with toxic pollutants. Fisheries are being mismanaged, and valuable arable land is being lost to erosion.

Economic development cannot be sustained without the sustainable management of a country's natural resources, yet few developing countries have adopted laws or policies which adequately reflect the irrevocable link between economic growth and environmental protection. And some countries that have such laws or policies do not enforce or implement them. My amendment addresses this issue by ensuring that in order to qualify for assistance under the MCA, a country must have demonstrated a commitment to ``the sustainable use of natural resources.''

Yes.

The Senator from New Mexico yielded me up to 10 minutes. I don't think I will take quite that long.

Mr. President, I thank my good friend from New Mexico. I commend him for his amendment. What the Senator from New Mexico has pointed out is the reality behind the rhetoric; perhaps, to some extent, the honesty behind the headlines.

Like so many others, I have read with interest and a little frustration the press articles, the letters to the editor, the other expressions of view by various people about how Congress needs to ``step up to the plate'' and fund the President's global HIV/AIDS initiative. Of course, we should fund it. This is far more than a Presidential initiative. It is the culmination of years of work by Members of Congress, both Democrats and Republicans, and the White House and many private groups to significantly increase funding to combat the spread of AIDS.

When I talk about the reality behind the rhetoric and the honesty behind the headlines, I recall how right up until the end of last year the White House was actively opposing efforts by Senators, particularly Senator Durbin, to provide emergency funding for this purpose. In fact, the White House refused many times to declare AIDS an emergency.

This January in his State of the Union Address the President announced a 5-year, $15 billion global AIDS initiative. The President received a lot of praise for that announcement. He should have. In fact, I

am one of those who did praise him for it. And he deserves credit for speaking out more than any previous President about the need to combat AIDS. I commend him for going to Africa, and for calling for greater efforts to fight AIDS, which has ravaged those countries.

But whether he intended it or not, the President's State of the Union announcement created the expectation that the administration would provide $3 billion toward this initiative in 2004, a reasonable expectation when you consider that there are 15,000 new HIV infections every single day. In 40 days, that is an amount equal to the entire population of my own State of Vermont.

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, which passed last month--and we all recall, with very strong support from the President--reinforced this expectation because it authorized up to $3 billion for these programs in 2004.

I support that funding. In fact, while it represents a significant increase over the current level of funding, it is way short of what a country as wealthy as ours, the wealthiest Nation in history, should be spending to fight the worst public health crisis that history has ever known. But let's look at what has happened since then.

After the headlines were over, after the meetings at the White House were over, after all the photo ops were over, the President did not include $3 billion to fight AIDS in his 2004 budget. He provided $2 billion, not $3 billion.

In fact, depending upon who you ask in the administration, it is not even $2 billion. It is somewhere between $1.65 and $2 billion.

Let's assume it is the full $2 billion. That is $1 billion less than what he promised. And then when the Republicans in the House Appropriations Committee met, they provided in their allocation for foreign assistance, which includes funding to fight AIDS, an amount which cut the President's $18.8 billion foreign assistance budget by $1.8 billion. The Senate cut it by $800 million.

So what happened is, the President underfunded his own AIDS initiative by one-third when he actually sent his proposal to the Congress, and then the Republican-controlled Congress cut his budget even more. So now we are faced with the impossible task of finding $3 billion in a total budget that is considerably less than the President's budget which was already too little.

I am growing weary of hearing in the press: Now it is up to the Democrats to find the $3 billion to back up the President's promise. First off, it was not his initiative. It was a joint initiative of many. Secondly, he didn't include the money in his budget. And even with the amount of money that he did include in his budget, the Members of his own party cut it even deeper. Actually, if the Members of the President's party agree with the promise he and they made, they ought to be offering this amendment themselves, at least vote for this amendment.

The amendment says we want the President's promise to be fulfilled because if the Members of the President's party don't vote for this, what they will have done, as so often happens here, is pass a big authorization bill, pat themselves on the back, have the photo ops, accept the praise about finally getting serious about fighting AIDS and then, when the cameras have gone home and it comes time to appropriate the money, they say no.

Let's find the $3 billion. One easy way would be for the President to send up a budget amendment that actually asks for the amount of money that he promised. And then the Congress needs to declare AIDS an emergency, which we all agree it is, and appropriate the additional $1 billion.

I commend the Senator from New Mexico for his amendment.

And I take the President at his word, that he does feel strongly about the AIDS crisis and that he intends to do something about it. But words won't prevent AIDS. Words will not provide treatment to those suffering from it. Words are not enough to fight the worst epidemic in recorded history. It is going to require money, too.

The President has said the right things but now it is sort of like ``the check is in the mail.'' He has to write the check and he has to tell members of his own party who have voted for the President's budget, which actually cuts his promise substantially: Look guys, I made this promise; we have to stand up and vote for it. I think he would be doing a very good thing if he did. We are not going to cure AIDS overnight. We are not going to stop every new case. But we know how to slow it considerably.

We are going to see civil strife and conflict especially in Africa, and calls for the United States to send troops. And when you look to the root causes, it will be AIDS that is part of the problem.

We have been blessed in this Nation with the most wealth of any people in history. We should ask ourselves: Don't we have a moral responsibility to do everything we can to help those who are less blessed?

Mr. President, I reserve the remainder of Senator Bingaman's time and I yield the floor.

Mr. President, I am disappointed that the majority appears to be playing politics with the medical malpractice insurance debate. This is a complex issue, and the bill before us would encroach on the rights of every state and would take away the legal rights of the American people. Great care is in order as Congress considers such steps. But instead of introducing a bipartisan bill and sending it through the committee process to reach consensus, the majority is rushing a partisan bill directly to the Senate floor. That is highly unfortunate, because our health care system is in crisis. We have heard that statement so often that it has begun to lose the force of its truth, but that truth is one we must confront, and the crisis is one we must abate.

Dramatically rising medical malpractice insurance rates are forcing some doctors to abandon their practices or to cross state lines to find more affordable situations. Patients who need care in high-risk specialties--like obstetrics--and patients in areas already underserved by health care providers--like many rural communities--are too often left without adequate care.

We are the richest and most powerful nation on earth. We should be able to ensure access to quality health care to all our citizens and to assure the medical profession that its members will not be driven from their calling by the manipulations of the malpractice insurance industry.

The debate about the causes of this latest insurance crisis and the possible cures grows shrill. I had hoped for a calmer and more constructive discussion within the Senate Judiciary Committee and on the Senate floor. My principal concerns are straightforward: That we ensure that our nation's physicians are able to provide the high quality of medical care that our citizens deserve and for which the United States is world-renowned, and that in those instances where a doctor does harm a patient, that patient should be able to seek appropriate redress through our court system.

To be sure, different States have different experiences with medical malpractice insurance, and insurance remains largely a State-regulated industry. Each State should endeavor to develop its own appropriate solution to rising medical malpractice insurance rates because each State has its own unique problems. Some States--such as my own, Vermont--while experiencing problems, do not face as great a crisis as others. Vermont's legislature is considering legislation to find the right answers for our State, and the same process is underway now in other States.

In contrast, in States such as West Virginia, Pennsylvania, Florida, and New Jersey, doctors are walking out of work in protest over the exorbitant rates being extracted from them by their insurance carriers.

Thoughtful solutions to the situation will require creative thinking, a genuine effort to rectify the problem, and bipartisan consensus to achieve real reform. Unfortunately, these are not the characteristics of the bill before us. Indeed, S. 11 is a partisan bill that was introduced only a few days ago without any committee consideration. Ignoring the central truth of this crisis--that it is a problem in the insurance industry, not the tort system--the majority has proposed a plan that would cap non-economic damages across the nation at $250,000 in medical malpractice cases. The notion that such a one-size-fits-all scheme is the answer runs counter to the factual experience of the states.

Most importantly, the majority's proposal does nothing to protect true victims of medical malpractice and nothing to prevent malpractice in the first place. A cap of $250,000 would arbitrarily limit compensation that the most seriously injured patients are able to receive. The medical malpractice reform debate too often ignores the men, women and children whose lives have been dramatically--and often permanently--altered by medical errors. The experience of Linda McDougall, who testified a few months ago before the Senate Judiciary Committee, is just one tragic example of such an error. Mrs. McDougal is recovering from an unnecessary double mastectomy, and her testimony reminded us all of the real-life consideration of these issues. Arbitrarily limiting injured patients' remedies under the law without addressing the system-wide medical errors that result in patient harm and death is a recipe for failure.

The majority's proposal would prevent individuals like Linda McDougall--even if they have successfully made their cases in courts of law--from receiving adequate compensation. We

are fortunate in this nation to have many highly qualified medical professionals, and this is especially true in my own home state of Vermont. Unfortunately, good doctors sometimes make errors. It is also unfortunate that some not-so-good doctors manage to make their way into the health care system as well.

While we must do all that we can to support the men and women who commit their professional lives to caring for others, we must also ensure that patients have access to adequate remedies should they receive inadequate care.

High malpractice insurance premiums are not the direct result of malpractice lawsuit verdicts. They are the result of investment decisions by the insurance companies and of business models geared toward ever-increasing profits as well as the cyclical hardening of the liability insurance market. In cases where an insurer has made a bad investment, or has experienced the same disappointments from Wall Street that so many Americans have, it should not be able to recoup its losses from the doctors it insures.

The insurance company should have to bear the burdens of its own business model, just as the other businesses in the economy do. And a nationwide arbitrary capping of awards available to victims--as the majority has proposed here this week--should not be the first and only solution turned to in a tough medical malpractice insurance market. The problem at hand deserves thoughtful and collaborative consideration in committee to achieve a sensible solution that is fair to patients and that supports our medical professionals in their ability to practice quality health care.

One aspect of the insurance industry's business model requires a legislative correction--its blanket exemption from federal antitrust laws. Insurers have for years--too many years--enjoyed a benefit that is novel in our marketplace. The McCarran-Ferguson Act permits insurance companies to operate without being subject to most of the federal antitrust laws, and our nation's physicians and their patients have been the worse off for it.

Using their exemption, insurers can collude to set rates, resulting in higher premiums than true competition would achieve--and because of this exemption, enforcement officials cannot investigate any such collusion. If Congress is serious about controlling rising premiums, we must objectively limit this broad exemption in the McCarran-Ferguson Act.

In February, I introduced the ``Medical Malpractice Insurance Antitrust Act of 2003,'' S. 352. I want to thank Senators Reid, Kennedy, Durbin, Edwards, Rockefeller, Feingold, Boxer and Corzine for cosponsoring this essential and straightforward legislation. Our bill modifies the McCarran-Ferguson Act with respect to medical malpractice insurance, and only for the most pernicious antitrust offenses: price fixing, bid rigging, and market allocations. Only those anticompetitive practices that most certainly will affect premiums are addressed.

I am hard-pressed to imagine that anyone could object to a prohibition on insurance carriers' fixing prices or dividing territories. After all, the rest of our nation's industries manage either to abide by these laws or pay the consequences.

Many State insurance commissioners police the industry well within the power they are accorded in their own laws, and some states have antitrust laws of their own that could cover some anticompetitive activities in the insurance industry. Our legislation is a scalpel, not a saw. It would not affect regulation of insurance by state insurance commissioners and other state regulators. But there is no reason to continue, unexamined, a system in which the Federal enforcers are precluded from prosecuting the most harmful antitrust violations just because they are committed by insurance companies.

Our legislation is a carefully tailored solution to one critical aspect of the problem of excessive medical malpractice insurance rates. I had hoped for quick action by the Judiciary Committee and then by the full Senate to ensure that this important step on the road to genuine reform is taken before too much more damage is done to the physicians of this country and to the patients they care for.

But our legislation to narrow this loophole in the nation's anti- trust laws for medical malpractice insurers has languished for months in the Senate Judiciary Committee. Instead of conducting hearings and a markup on our bill, the majority now rushes a ``tort reform'' agenda item to the floor without any committee consideration.

I want to comment for a moment on why committee consideration is so important to building the consensus needed to enact serious legislation to address the serious issue of rising medical malpractice premiums. During the last Congress, some of my colleagues on the other side of the aisle complained about the lack of committee consideration of prescription drug legislation. This year, we had committee consideration of a bipartisan bill and the Senate passed prescription drug legislation.

Last year, during that debate, Senator Lott said: ``If we bring these important issues to the Senate floor without them having been worked through committee, it is a prescription for a real problem . . . .''

Last year on the Senate floor, Senator Nickles declared: ``What happened to the committee process? Shouldn't every member of the Finance Committee have a chance to say, I think we can do a better job? Maybe we can do it more efficiently or better. No, we bypass the committee and take it directly to the floor.''

And Senator Snowe, one of the Senate's most thoughtful members, wisely pointed out: ``I think each of us here knows that without a markup in the committee we are creating a predetermined train wreck. We are heading for a train wreck because we are creating a process designed for failure. It is designed for politics. It is not designed for creating a solution to a serious problem.''

If Congress is serious about controlling rising medical malpractice insurance premiums, then we must limit the broad exemption to federal antitrust law and promote real competition in the insurance industry, as well as attack this problem at its core by reducing medical errors across our health care system. Unfortunately, the partisan bill before us is not designed for creating a solution to a serious problem. Instead, it is designed purely for politics.

Mr. President, yesterday, the Senate voted to confirm David Campbell to a lifetime appointment on the United States District Court for the District of Arizona. With this confirmation, we will fill the sole vacancy on that court--which is actually not even vacant yet. Mr. Campbell is nominated to a new position that will become vacant on July 15. I have been glad to work with the Senators from Arizona to consider this nominee and provide bipartisan support. I congratulate the nominee and his family.

The Senate has now confirmed 133 judges nominated by President Bush, including 26 circuit court judges. One hundred judicial nominees were confirmed when Democrats acted as the Senate majority for 17 months from the summer of 2001 to adjournment last year. After today, 33 will have been confirmed in the other 12 months in which Republicans have controlled the confirmation process under President

Bush. This total of 133 judges confirmed for President Bush is more confirmations than the Republicans allowed President Clinton in all of 1995, 1996 and 1997--the first 3 years they controlled the Senate process for President Clinton. In those 3 full years, the Republican leadership in the Senate allowed only 111 judicial nominees to be confirmed, which included only 18 circuit court judges. We have already exceeded that total by 20 percent and the circuit court total by 40 percent with 6 months remaining to us this year. In truth, we have achieved all this in less than 2 years because of the delays in organizing and reorganizing the Senate in 2001. The Judiciary Committee was not even reassigned until July 10, 2001, so we have now confirmed 133 judges in less than 2 years.

In the first half of this year, the 33 confirmations is more than Republicans allowed to be confirmed in the entire 1996 session, when only 17 district court judges were added to the Federal courts across the Nation. In the first half of this year, with 9 circuit court confirmations, we have already exceeded the average of seven per year achieved by Republican leadership from 1995 through the early part of 2001. That is more circuit court confirmations in 6 months than Republicans allowed confirmed in the entire 1996 session, in which there were none confirmed; in all of 1997, when there were 7 confirmed; in all of 1999, when there were 7 confirmed; or in all of 2000, when there were 8 confirmed. The Senate is moving two to three times faster for this President's nominees than for President Clinton's, despite the fact that the current appellate court nominees are more controversial, divisive and less widely-supported than President Clinton's appellate court nominees were.

The confirmation of David Campbell to the District Court for Arizona illustrates the effect of the reforms to the process that the Democratic leadership has spearheaded, despite the poor treatment of too many Democratic nominees through the practice of anonymous holds and other obstructionist tactics employed by some in the preceding 6 years. David Campbell is the fourth Federal judge confirmed from Arizona for President Bush. Under Democratic control, the Senate confirmed Judge David Bury, Judge Cindy Jorgenson and Judge Frederick Martone to the District Court for the District of Arizona.

If the Senate did not confirm another judicial nominee all year and simply adjourned today, we would have treated President Bush more fairly and would have acted on more of his judicial nominees than Republicans did for President Clinton in 1995-97 or the period 1996-99. In addition, the vacancies on the Federal courts around the country are significantly lower than the 80 vacancies Republicans left at the end of 1997 or the 110 vacancies that Democrats inherited in the summer of 2001. We continue well below the 67 vacancy level that Senator Hatch used to call ``full employment'' for the Federal judiciary. Indeed we have reduced vacancies to their lowest level in the last 13 years. So while unemployment has continued to climb for Americans to 6.1 percent last month, the Senate has helped lower the vacancy rate in Federal courts to a historically low level that we have not witnessed in over a decade. Of course, the Senate is not adjourning for the year and the Judiciary Committee continues to hold hearings for Bush judicial nominees at between two and four times as many as it did for President Clinton's.

For those who are claiming that Democrats are blockading this President's judicial nominees, this is another example of how quickly and easily the Senate can act when we proceed cooperatively with consensus nominees. The Senate's record fairly considered has been outstanding--especially when contrasted with the obstruction of President Clinton's moderate judicial nominees by Republicans between 1996 and 2001.

Mr President, earlier this year, the House Republicans saddled the bipartisan, non-controversial AMBER Alert bill with numerous unrelated and ill-conceived provisions, collectively known as the ``Feeney amendment,'' that effectively overturned the basic structure of the carefully crafted sentencing guideline system. At the time, we were warned by distinguished jurists that these provisions would irrevocably harm our sentencing system and compromise justice. For example, the Nation's Chief Justice warned that the Feeney amendment, if enacted, ``would do serious harm to the basic structure of the sentencing guideline system and would seriously impair the ability of courts to impose just and responsible sentences.'' Despite such objections, and without any serious process in the House or Senate, these provisions were pushed through conference with minor changes and enacted.

We are now beginning to witness the far-reaching impact of this folly. Not only have we compromised the sentencing system, but we have alienated and minimized the effectiveness of our Federal judges, prompting at least one to announce early retirement.

As enacted, the Feeney amendment, substantially reversed provisions allowing Federal judges to depart from sentencing guidelines when justice requires. It also created a ``black list'' of judges who impose sentences that the Justice Department does not like, and limited the number of Federal judges who can serve on the Sentencing Commission, thus reducing the influence of practical judicial experience on sentencing decisions.

In response, in a June 24 op-ed in the New York Times, Republican- appointed district judge and former Federal prosecutor, John S. Martin, Jr., decried these provisions as ``an assault on judicial independence,'' ``at odds with the sentencing philosophy that has been a hallmark of the American system of justice,'' and tragically, the impetus for his decision to retire from the bench, rather than exercise his option to continue in a lifetime position with a reduced workload. ``When I took my oath of office 13 years ago I never thought I would leave the Federal bench. . . . I no longer want to be part of our unjust criminal justice system.''

It is shameful that we have allowed such half-baked, poorly-crafted legislation to lead to the loss of a judge that has dedicated his career to fighting crime and preserving justice. When he was appointed by the first President Bush in 1990, Judge Martin brought with him to the bench years of knowledge and experience as a Federal prosecutor, including 3 years as a U.S. Attorney for the Southern District of New York. As a former Federal prosecutor, he is no slouch on crime. He knows very well the importance of vigorously pursuing and punishing wrong-doers. But his experience has also taught him that these goals cannot trounce the equally-critical pursuit of justice and fairness.

Unless we reverse the damaging provisions in the Feeney amendment, we will continue to compromise justice, alienate Federal judges, and threaten the stability and integrity of our judicial system. That is why I joined Senators Kennedy, Feingold, and Lautenberg in introducing the Judicial Use of Discretion to Guarantee Equity in Sentencing Act of 2003, or the JUDGES Act. This bill would correct the Feeney amendment's far-reaching provisions by restoring judicial discretion and allowing judges to impose just and responsible sentences. In addition, the JUDGES Act would reverse the provisions limiting the number of Federal judges who can serve on the Sentencing Commission. Finally, the JUDGES Act would follow through on the advice of Chief Justice Rehnquist to engage in a ``thorough and dispassionate inquiry'' on the Federal sentencing structure by directing the Sentencing Commission to conduct a comprehensive study on sentencing departures and report to Congress with 180 days.

In his New York Times op-ed, Judge Martin raised another important point: Limiting judicial discretion and involvement in sentencing practices also reduces the personal satisfaction that judges derive from knowing that they are integrally involved in promoting a more just society, and in doing so removes a powerful incentive that prompts potential judges to accept a judicial appointment, despite inadequate pay. ``When I became a Federal judge, I accepted the fact that I would be paid much less than I could earn in private practice. . . . I believed I would be compensated by the satisfaction of serving the public good--the administration of justice. In recent years, however, this sense has been replaced by the distress I feel at being part of a sentencing system that is unnecessarily cruel and rigid.''

We all know that judicial pay is a challenging issue. Indeed, this is why I introduced a bill, S. 787, to restore the many cost of living adjustments that Congress has failed to provide the judiciary, and have joined Chairman Hatch and many other members of the Judiciary Committee in sponsoring S. 1023 to increase the annual salaries of Federal judges and justices. I encourage my colleagues to support these efforts. But I ask them not to make the challenge of judicial pay worse by taking away the intangible compensation that is the satisfaction from serving the public good. Unfortunately, the Feeney amendment has done just that.

I again urge my colleagues to support the JUDGES Act, and I ask unanimous consent that Judge Martin's June 24 op-ed be printed in the Record.

Madam President, I come to the floor today to offer congratulations and heartfelt appreciation for the exceptional work of Hilary Rosen, Chair and CEO of the Recording Industry Association of America. Hilary will step down at the end of this year, after 17 years with the RIAA. She leaves a legacy of remarkable efforts to ensure that innovations are protected while finding legitimate new venues in the Digital Age. She has accomplished a great deal while at the same time ushering the organization, and the music industry, through extremely trying years.

After matriculating at George Washington University and earning a Bachelor of Arts in International Business, Hilary devoted her energies to working for a former Governor of New Jersey in addition to two senatorial transition teams, those of my distinguished colleague and former colleague, Dianne Feinstein and Bill Bradley. She was an accomplished advocate and began her own consulting firm in 1987. Hilary's hard work and talent were rewarded in 1998 when she assumed the position of Chair and CEO at the RIAA.

She has represented the music industry with both tenacity and good humor. While the Internet has ushered in a new era of information and communication capabilities, we are now well aware of the dangers posed by this innovation. These dangers take many forms: the security issues that result when we have achieved so much interconnectedness, the proliferation of child pornography that seeks to exploit society's most vulnerable, and of course the threat posed to copyright holders by those who distribute, for free, the work products of artists. Hilary has made genuine headway, sometimes single-handedly, in harnessing the power of the Internet to further the goals of the music industry while helping in the fight against the worst abuses of technology.

But her political activities extend well beyond the boundaries of the organization she leads. She was a founding member of Rock the Vote, a group which has successfully sought to reach out to younger Americans, imbuing those coming of age with the belief that they can have a positive impact on our political processes. And she sits on numerous not-for-profit boards including the Human Rights Campaign Foundation, Y.E.S. to Jobs, and the National Cancer Foundation. Looking at the list of groups she is involved with, the variety of causes she champions rivals the diversity of artists and labels she represents.

We know that her partner, Elizabeth Birch, and their twins, Jacob and Anna, will enjoy having more time with Hilary. If past experience is a predictor of future performance, she will shine in whatever endeavor she next chooses.

Mr. President, I am pleased that late last night the Senate again supported lowering drug prices and maintaining a fair generic drug approval process by adding the Drug Competition Act of the Prescription Drug and Medicare Improvement Act of 2003, S. 1. Last November, the Drug Competition Act passed the Senate by unanimous consent. On Monday, Senator Grassley and I, along with Senators Cantwell, Durbin, Feingold, Kohl, and Schumer, offered our bill as an amendment to the larger Medicare bill. I hope that in this Congress it is actually enacted into law as part of the larger effort to improve the health care of millions of Americans. Prescription drug prices are rapidly increasing, and they are a source of considerable concern to many Americans, especially senior citizens and families. Generic drug prices can be as much as 80 percent lower than the comparable brand- name versions.

While the Drug Competition Act is small in terms of length, it is large in terms of impact. It will ensure that law enforcement agencies can take quick and decisive action against companies that are driven more by greed than by good sense. It gives the Federal Trade Commission and the Justice Department access to information about secret deals between drug companies that keep generic drugs off the market. This is practice that hurts American families, particularly senior citizens, by denying them access to low-cost generic drugs, and further inflating medical costs.

Last July, the Federal Trade Commission released to comprehensive report on barriers to the entry of generic drugs into the pharmaceutical marketplace. The FTC had two recommendations to improve the current situation and to close the loopholes in the law that allow drug manufacturers to manipulate the timing of generics' introduction to the market. One of those recommendations was simply to enact our bill, as the most effective solution to the problem of ``sweetheart'' deals between brand name and generic drug manufactures that keep generic drugs off the market, thus depriving consumers of the benefits of quality drugs at lower prices. Indeed, at a hearing just yesterday in the Judiciary Committee, Chairman Timothy Muris of the FTC praised the Drug Competition Act in his testimony and urged its passage. In short, this bill enjoys the unqualified endorsement of the current FTC, which follows on the support by the Clinton administration's FTC during the initial stages of our formulation of this bill. We can all have every confidence in the commonsense approach that our bill takes to ensuring that our law enforcement agencies have the information they need to take quick action, if necessary to protect consumers from drug companies that abuse the law.

Under current law, the first generic manufacturer that gets permission to sell a generic drug before the patent on the brand-name drug expires, enjoys protection from competition for 180 days--a head start on other generic companies. That was a good idea, but the unfortunate loophole exploited by a few is that secret deals can be made that allow the manufacturer of the generic drug to claim the 180- day grace period to block other generic drugs from entering the market, while at the same time, getting paid by the brand-

name manufacturer not to sell the generic drug.

Our legislation closes this loophole for those who want to cheat the public but keeps the system the same for companies engaged in true competition. I think it is important for Congress not to overreact and throw out the good with the bad. Most generic companies want to take advantage of this 180-day provision and deliver quality generic drugs at much lower cost for consumers. We should not eliminate the incentive for them. Instead, we should let the FTC and Justice look at every deal that could lead to abuse, so that only the deals that are consistent with the intent of that law will be allowed to stand. The Drug Competition Act accomplishes precisely that goal, and helps ensure effective and timely access to generic pharmaceuticals that can lower the cost of prescription drugs for seniors, for families, and for all of us.

The effects of this amendment will only benefit the effort to bring quality health care at lower costs to more of our citizens. The Drug Competition Act enjoyed the unqualified support of the Senate last year, and I am pleased that my colleagues have recognized that it fits well within the framework of the Prescription Drug and Medicare Improvement Act of 2003. It is a good complement to the larger bill and does nothing to disrupt the bill's balance. I sincerely hope that this commonsense legislation is a part of any final agreement with the House on the larger Medicare prescription drug bill.

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

Mr. President, last November, the Drug Competition Act passed the Senate by unanimous consent. This morning, I am proud to join Senator Grassley, along with Senators Cantwell, Durbin, Feingold, Kohl, and Schumer in offering our bill as an amendment to the Prescription Drug and Medicare Improvement Act of 2003, S. 1, I hope that in this Congress it is actually enacted into law as part of the larger effort to improve the health care of millions of Americans. Prescription drug prices are rapidly increasing, and are a source of considerable concern to many Americans, especially senior citizens and families. Generic drug prices can be as much as 80 percent lower than the comparable brand-name version.

While the Drug Competition Act is small in terms of length, it is large in terms of impact. It will ensure that law enforcement agencies can take quick and decisive action against companies that are driven more by greed than by good sense. It gives the Federal Trade Commission and the Justice Department access to information about secret deals between drug companies that keep generic drugs off the market. This is a practice that hurts American families, particularly senior citizens, by denying them access to low-cost generic drugs, and further inflating medical costs.

Last fall, the Federal Trade Commission released a comprehensive report on barriers to the entry of generic drugs into the pharmaceutical marketplace. The FTC had two recommendations to improve the current situation and to close the loopholes in the law that allow drug manufacturers to manipulate the timing of generics' introduction to the market. One of those recommendations was simply to enact our bill, as the most effective solution to the problem of ``sweetheart'' deals between brand name and generic drug manufacturers that keep generic drugs off the market, thus depriving consumers of the benefits of quality drugs at lower prices. Indeed, at a hearing just yesterday in the Judiciary Committee, Chairman Timothy Muris of the FTC praised the Drug Competition Act in his testimony, and urged its passage. In short, this bill enjoys the unqualified endorsement of the current FTC, which follows on the support by the Clinton administration's FTC during the initial stages of our formulation of this bill. We can all have every confidence in the common sense approach that our bill takes to ensuring that our law enforcement agencies have the information they need to take quick action, if necessary, to protect consumers from drug companies that abuse the law.

Under current law, the first generic manufacturer that gets permission to sell a generic drug before the patent on the brand-name drug expires enjoys protection from competition for 180 days--a head start on other generic companies. That was a good idea--but the unfortunate loophole exploited by a few is that secret deals can be made that allow the manufacturer of the generic drug to claim the 180- day grace period--to block other generic drugs from entering the market--while, at the same time, getting paid by the brand-name manufacturer not to sell the generic drug.

Our legislation closes this loophole for those who want to cheat the public but keeps the system the same for companies engaged in true competition. I think it is important for Congress not to overreact and throw out

the good with the bad. Most generic companies want to take advantage of this 180-day provision and deliver quality generic drugs at much lower costs for consumers. We should not eliminate the incentive for them. Instead, we should let the FTC and Justice look at every deal that could lead to abuse, so that only the deals that are consistent with the intent of that law will be allowed to stand. The Drug Competition Act accomplishes precisely that goal, and helps ensure effective and timely access to generic pharmaceuticals that can lower the cost of prescription drugs for seniors, for families, and for all of us.

The effects of this amendment will only benefit the effort to bring quality health care at lower costs to more of our citizens. The Drug Competition Act enjoyed the unqualified support of the Senate last year, and I hope my colleagues will recognize that it fits well within the framework of the Prescription Drug and Medicare Improvement Act of 2003. It will do nothing to disrupt the balance struck in the larger bill, while aiding the ultimate goal of that legislation. I urge all Senators to embrace this effort on behalf of Medicare recipients, and of all Americans.

Mr. President, I, too, join my colleagues today to recognize and honor Ms. Bonny O'Neil upon her retirement from the Federal Government. Ms. O'Neil is a true public servant--in all the best sense of that phrase--diligent, hardworking, attentive to details, willing to dig in and truly analyze both sides of each issue, smart, totally honest, a woman of her word, and driven by a desire to do the right thing.

She is to be commended for serving her Nation and the U.S. Department of Agriculture so well. She also served the Congress well by providing us with clear and informative answers, and guiding us through complex issues. I know that she worked closely with my nutrition counsel Ed Barron for many years--both when he was at USDA and while he worked for me starting in 1987. On many occasions late at night during a conference, I would hear someone say: ``Let's call Bonny to get the facts.''

Bonny spent all but six of those years in various positions with the Food Stamp Program, where she currently serves as the Associate Deputy Administrator.

Ms. O'Neil provided valuable assistance during our work on nutrition programs, food stamp amendments and several farm bills. Anyone who has ever worked on a farm bill knows that it is an extremely complicated task that requires many long hours, including nights and weekends. Her attention to detail and willingness to be available at any time, day or night, was most appreciated.

I thank Ms. Bonny O'Neil for her distinguished service to the public good and wish her well in her retirement.

Mr. President, I am pleased to be introducing, with Senators Hatch, Schumer, Grassley, Feinstein, DeWine, and Edwards, the Criminal Spam Act of 2003. This bill is designed to counter the most objectionable forms of email marketing. In an effort to clear electronic channels for legitimate communications, the bill targets those spammers who deceive Internet Service Providers, ``ISPs'', and email recipients into thinking that messages come from someone other than a spammer--a ploy many spammers use to increase the likelihood that their unwanted ads will evade filtering software and be opened.

Without a doubt, spam is a serious problem today, one that is threatening to undermine the vast potential of the Internet to foster the free exchange of information and commerce. Businesses and individuals currently wade through tremendous amounts of spam in order to access email that is of relevance to them--and this is after ISPs, businesses, and individuals have spent time and money blocking a large percentage of spam from reaching its intended recipients.

Email users are having the online equivalent of the experience of the woman in the Monty Python skit, who seeks to order a spam-free breakfast at a restaurant. Try as she might, she cannot get the waitress to bring her the meal she desires. Every dish in the restaurant comes with Spam; it's just a matter of how much. There's ``egg, bacon and Spam''; ``egg, bacon, sausage and Spam''; ``Spam, bacon, sausage and Spam''; ``Spam, egg, Spam, Spam, bacon and Spam''; ``Spam, sausage, Spam, Spam, Spam, bacon, Spam, tomato and Spam''; and so on. Exasperated, the woman finally cries out: ``I don't like Spam! . . . I don't want ANY Spam!''

Individuals and businesses are reacting similarly to electronic spam. A Harris poll taken late last year found that 80 percent of respondents view spam as ``very annoying,'' and fully 74 percent of respondents favor making mass spamming illegal. They are fed up.

ISPs are doing their best to shield customers from spam, blocking billions of spam each day, but the spammers are winning the battle. Millions of unwanted, unsolicited commercial emails are received by American businesses and individuals each day, despite their own, additional filtering efforts. A recent study by Ferris Research estimates that spam costs U.S. businesses $8.9 billion annually as a result of lost productivity and the need to purchase more powerful servers and additional bandwidth; to configure and run spam filters; and to provide help-desk support for spam recipients. The costs of spam are significant to individuals as well, including time spent identifying and deleting spam, inadvertently opening spam, installing and maintaining anti-spam filters, tracking down legitimate messages mistakenly deleted by spam filters, and paying for the ISPs' blocking efforts.

And there are other less prominent but equally important costs of spam. It may introduce viruses, worms, and Trojan Horses into personal and business computer systems, including those that support our national infrastructure. It is also fertile ground for deceptive trade practices. The FTC recently estimated that 96 percent of the spam involving investment and business opportunities, and nearly half of the spam advertising health services and products, and travel and leisure, contains false or misleading information.

This rampant deception has the potential to undermine Americans' trust of valid information on the Internet. Indeed, it has already caused some Americans to refrain from using the Internet to the extent that they otherwise would. For example, some have chosen not to participate in public discussion forums, and are hesitant to provide their addresses in legitimate business transactions, for fear that their email addresses will be harvested for junk email lists. And they are right to be concerned. The FTC found spam arriving at its computer system just nine minutes after posting an email address in an online chat room.

At a recent FTC forum on spam, experts agreed that the issue is ripe for Federal action. Some 30 States now have anti-spam laws, but the nature of email makes it difficult to discern where any given piece of spam originated, and, thus, what State has jurisdiction and what State law applies. This may explain why spammers continue to flout State laws. For example, several States require that spam begin the subject line with ``ADV,'' but the FTC has found that only 2 percent of spam contains this label.

Technology will undoubtedly play a key role in fighting spam. However, a technological solution to the problem is not predicted in the foreseeable future. In addition, given the adroitness with which spammers adapt to anti-spam technologies, the development and implementation of technological fixes to spam entail constant vigilance and substantial financial investment. This raises the question: Why should individuals and businesses be forced to invest large amounts of time and money in buying, installing, and maintaining generation after generation of anti-spam technologies?

I have often said that the government should regulate the Internet only when absolutely necessary. Unfortunately, spammers have caused this to be one of those times. Congress needs to address the spam problem quickly and prudently, and the Criminal Spam Act, by targeting the most injurious types of spam, is a good start.

The bill that Senator Hatch and I introduce today would prohibit the four principal techniques that spammers use to evade filtering software and hide their trails.

First, our bill would prohibit hacking into another person's computer system and sending bulk spam from or through that system. This would criminalize the common spammer technique of obtaining access to other people's email accounts on an ISP's email network, whether by password theft or by inserting a ``Trojan horse'' program--that is, a program that unsuspecting users

download onto their computers and that then takes control of those computers--to send bulk spam.

Second, the bill would prohibit using a computer system that the owner makes available for other purposes as a conduit for bulk spam, with the intent of deceiving recipients as to the spam's origins. This prohibition would criminalize another common spammer technique--the abuse of third parties' ``open'' servers, such as email servers that have the capability to relay mail, or Web proxy servers that have the ability to generate ``form'' mail. Spammers commandeer these servers to send bulk commercial email without the server owner's knowledge, either by ``relaying'' their email through an ``open'' email server, or by abusing an ``open'' Web proxy server's capability to generate form emails as a means to originate spam, thereby exceeding the owner's authorization for use of that email or Web server. In some instances the hijacked servers are even completely shut down as a result of tens of thousands of undeliverable messages generated from the spammer's email list.

The bill's third prohibition targets another way that outlaw spammers evade ISP filters: falsifying the ``header information'' that accompanies every email, and sending bulk spam containing that fake header information. More specifically, the bill prohibits forging information regarding the origin of the email message, the route through which the message attempted to penetrate the ISP filters, and information authenticating the user as a ``trusted sender'' who abides by appropriate consumer protection rules. The last type of forgery will be particularly important in the future, as ISPs and legitimate marketers develop ``white list'' rules whereby emailers who abide by self-regulatory codes of good practices will be allowed to send email to users without being subject to anti-spamming filters. There is currently substantial interest among marketers and email service providers in ``white list'' technology solutions to spam. However, such ``white list'' systems would be useless if outlaw spammers are allowed to counterfeit the authentication mechanisms used by legitimate emailers.

Fourth and finally, the Criminal Spam Act prohibits registering for multiple email accounts or Internet domain names, and sending bulk email from those accounts or domains. This provision targets deceptive ``account churning,'' a common outlaw spammer technique that works as follows. The spammer registers, usually by means of an automatic computer program, for large numbers of email accounts or domain names, using false registration information, then sends bulk spam from one account or domain after another. This technique stays ahead of ISP filters by hiding the source, size, and scope of the sender's mailings, and prevents the email account provider or domain name registrar from identifying the registrant as a spammer and denying his registration request. Falsifying registration information for domain names also violates a basic contractual requirement for domain name registration.

Penalties for violations of these provisions are tough but measured. Recidivists and those who send spam in furtherance of another felony may be imprisoned for up to five years. Large-volume spammers, those who hack into another person's computer system to send bulk spam, and spam ``kingpins'' who use others to operate their spamming operations may be imprisoned for up to three years. Other offenders may be fined and imprisoned for no more than one year. Convicted offenders are also subject to forfeiture of proceeds and instrumentalities of the offense.

In addition to these criminal penalties, offenders are also subject to civil enforcement actions, which may be brought by either the Department of Justice or by an ISP. Civil remedies are important as a supplement to criminal enforcement for several reasons. First, bringing cases against outlaw spammers is very resource intensive because of the extensive forensic work involved in building a case; providing for civil enforcement will allow ISPs to assemble evidence to make prosecutors' jobs easier. Second, although criminal prosecutions are a critical deterrent against the most egregious spammers, the Justice Department is unlikely to prosecute all outlaw spam cases; civil enforcement, backed by strong financial penalties, will serve as a second layer of deterrence. Third, criminal penalties may not be appropriate in all cases, as for example in the case of teenagers hired by professional outlaw spammers to send out email for them; civil enforcement gives the Justice Department a more complete and refined range of tools to address specific outlaw spam problems.

That describes the main provisions of our bill. In addition, because commercial email can be, and is being, sent from all over the world into the virtual mailboxes of Americans, the bill directs the Administration to report on its efforts to achieve international cooperation in the investigation and prosecution of outlaw spammers.

Again, the purpose of the Criminal Spam Act is to deter the most pernicious and unscrupulous types of spammers--those who use trickery and deception to induce others to relay and view their messages. Ridding America's inboxes of deceptively delivered spam will significantly advance our fight against junk email. But the Criminal Spam Act is not a cure-all for the spam pandemic.

The fundamental problem inherent to spam--its sheer volume--may well persist even in the absence of fraudulent routing information and false identities. In a recent survey, 82 percent of respondents considered unsolicited bulk email, even from legitimate businesses, to be unwelcome spam. Given this public opinion, and in light of the fact that spam is, in essence, cost-shifted advertising, it may be wise to take a broader approach to our fight against spam.

One approach that has achieved substantial support is to require all commercial email to include an ``opt out'' mechanism, that is, a mechanism for consumers to opt out of receiving further unwanted spam. At the recent FTC forum, several experts expressed concerns about this approach, which permits spammers to send at least one piece of spam to each email address in their database, while placing the burden on email recipients to respond. People who receive dozens, even hundreds, of unwanted emails each day would have little time or energy for anything other than opting-out from unwanted spam.

According to one organization's calculations, if just one percent of the approximately 24 million small businesses in the U.S. sent every American just one spam a year, that would amount to over 600 pieces of spam for each person to sift through and opt-out of each day. And this figure may be conservative, as it does not include the large businesses that also engage in on-line advertising.

A second possible approach to spam--a national ``Do Not Spam'' registry--raises a different but no less difficult set of concerns. The two FTC Commissioners who testified last month at the Senate Commerce Committee's hearing on spam both questioned the potential of a national registry to alleviate the spam problem. Although this approach would place a smaller burden on consumers than would an opt-out system, it would entail immense costs, complexity, and delay, all of which work in the spammers' favor.

A third way of attacking spam--and one that was favored by many panelists and audience members at the FTC forum--is to establish an opt-in system, whereby bulk commercial email may only be sent to individuals and businesses who have invited or consented to it. This approach has strong precedent in the Telephone Consumer Protection Act of 1991, TCPA, which Congress passed to eliminate similar cost- shifting, interference, and privacy problems associated with unsolicited commercial faxes. The TCPA's ban on faxes containing unsolicited advertisements has withstood First Amendment challenges in the courts, and was adopted by the European Union in July 2002.

I have discussed three possible approaches to the spam problem, and there are several others, some of which have already been codified in state law. I encourage the consideration of all these anti-spam approaches in the weeks and months to come.

Reducing the volume of junk commercial email, and so protecting legitimate Internet communications, will

not be easy. There are important First Amendment interests to consider, as well as the need to preserve the ability of legitimate marketers to use email responsibly. If Congress does act, it must get it right, so as not to exacerbate an already terribly vexing problem.

The Criminal Spam Act is a first step in countering spam. If we can shut down the spammers who use deception to evade filters and confuse consumers, we will give the next generation of anti-spam technologies a chance to do their work. Our bill targets the most egregious offenders, it provides a much-needed federal cause of action, and it allows the states to continue to serve as a ``laboratory'' for tough anti-spamming regulation. I urge its speedy enactment into law.

Mr. President, I am pleased to be introducing, with Senators Hatch, Schumer, Grassley, Feinstein, DeWine, and Edwards, the Criminal Spam Act of 2003. This bill is designed to counter the most objectionable forms of email marketing. In an effort to clear electronic channels for legitimate communications, the bill targets those spammers who deceive Internet Service Providers, ``ISPs'', and email recipients into thinking that messages come from someone other than a spammer--a ploy many spammers use to increase the likelihood that their unwanted ads will evade filtering software and be opened.

Without a doubt, spam is a serious problem today, one that is threatening to undermine the vast potential of the Internet to foster the free exchange of information and commerce. Businesses and individuals currently wade through tremendous amounts of spam in order to access email that is of relevance to them--and this is after ISPs, businesses, and individuals have spent time and money blocking a large percentage of spam from reaching its intended recipients.

Email users are having the online equivalent of the experience of the woman in the Monty Python skit, who seeks to order a spam-free breakfast at a restaurant. Try as she might, she cannot get the waitress to bring her the meal she desires. Every dish in the restaurant comes with Spam; it's just a matter of how much. There's ``egg, bacon and Spam''; ``egg, bacon, sausage and Spam''; ``Spam, bacon, sausage and Spam''; ``Spam, egg, Spam, Spam, bacon and Spam''; ``Spam, sausage, Spam, Spam, Spam, bacon, Spam, tomato and Spam''; and so on. Exasperated, the woman finally cries out: ``I don't like Spam! . . . I don't want ANY Spam!''

Individuals and businesses are reacting similarly to electronic spam. A Harris poll taken late last year found that 80 percent of respondents view spam as ``very annoying,'' and fully 74 percent of respondents favor making mass spamming illegal. They are fed up.

ISPs are doing their best to shield customers from spam, blocking billions of spam each day, but the spammers are winning the battle. Millions of unwanted, unsolicited commercial emails are received by American businesses and individuals each day, despite their own, additional filtering efforts. A recent study by Ferris Research estimates that spam costs U.S. businesses $8.9 billion annually as a result of lost productivity and the need to purchase more powerful servers and additional bandwidth; to configure and run spam filters; and to provide help-desk support for spam recipients. The costs of spam are significant to individuals as well, including time spent identifying and deleting spam, inadvertently opening spam, installing and maintaining anti-spam filters, tracking down legitimate messages mistakenly deleted by spam filters, and paying for the ISPs' blocking efforts.

And there are other less prominent but equally important costs of spam. It may introduce viruses, worms, and Trojan Horses into personal and business computer systems, including those that support our national infrastructure. It is also fertile ground for deceptive trade practices. The FTC recently estimated that 96 percent of the spam involving investment and business opportunities, and nearly half of the spam advertising health services and products, and travel and leisure, contains false or misleading information.

This rampant deception has the potential to undermine Americans' trust of valid information on the Internet. Indeed, it has already caused some Americans to refrain from using the Internet to the extent that they otherwise would. For example, some have chosen not to participate in public discussion forums, and are hesitant to provide their addresses in legitimate business transactions, for fear that their email addresses will be harvested for junk email lists. And they are right to be concerned. The FTC found spam arriving at its computer system just nine minutes after posting an email address in an online chat room.

At a recent FTC forum on spam, experts agreed that the issue is ripe for Federal action. Some 30 States now have anti-spam laws, but the nature of email makes it difficult to discern where any given piece of spam originated, and, thus, what State has jurisdiction and what State law applies. This may explain why spammers continue to flout State laws. For example, several States require that spam begin the subject line with ``ADV,'' but the FTC has found that only 2 percent of spam contains this label.

Technology will undoubtedly play a key role in fighting spam. However, a technological solution to the problem is not predicted in the foreseeable future. In addition, given the adroitness with which spammers adapt to anti-spam technologies, the development and implementation of technological fixes to spam entail constant vigilance and substantial financial investment. This raises the question: Why should individuals and businesses be forced to invest large amounts of time and money in buying, installing, and maintaining generation after generation of anti-spam technologies?

I have often said that the government should regulate the Internet only when absolutely necessary. Unfortunately, spammers have caused this to be one of those times. Congress needs to address the spam problem quickly and prudently, and the Criminal Spam Act, by targeting the most injurious types of spam, is a good start.

The bill that Senator Hatch and I introduce today would prohibit the four principal techniques that spammers use to evade filtering software and hide their trails.

First, our bill would prohibit hacking into another person's computer system and sending bulk spam from or through that system. This would criminalize the common spammer technique of obtaining access to other people's email accounts on an ISP's email network, whether by password theft or by inserting a ``Trojan horse'' program--that is, a program that unsuspecting users

download onto their computers and that then takes control of those computers--to send bulk spam.

Second, the bill would prohibit using a computer system that the owner makes available for other purposes as a conduit for bulk spam, with the intent of deceiving recipients as to the spam's origins. This prohibition would criminalize another common spammer technique--the abuse of third parties' ``open'' servers, such as email servers that have the capability to relay mail, or Web proxy servers that have the ability to generate ``form'' mail. Spammers commandeer these servers to send bulk commercial email without the server owner's knowledge, either by ``relaying'' their email through an ``open'' email server, or by abusing an ``open'' Web proxy server's capability to generate form emails as a means to originate spam, thereby exceeding the owner's authorization for use of that email or Web server. In some instances the hijacked servers are even completely shut down as a result of tens of thousands of undeliverable messages generated from the spammer's email list.

The bill's third prohibition targets another way that outlaw spammers evade ISP filters: falsifying the ``header information'' that accompanies every email, and sending bulk spam containing that fake header information. More specifically, the bill prohibits forging information regarding the origin of the email message, the route through which the message attempted to penetrate the ISP filters, and information authenticating the user as a ``trusted sender'' who abides by appropriate consumer protection rules. The last type of forgery will be particularly important in the future, as ISPs and legitimate marketers develop ``white list'' rules whereby emailers who abide by self-regulatory codes of good practices will be allowed to send email to users without being subject to anti-spamming filters. There is currently substantial interest among marketers and email service providers in ``white list'' technology solutions to spam. However, such ``white list'' systems would be useless if outlaw spammers are allowed to counterfeit the authentication mechanisms used by legitimate emailers.

Fourth and finally, the Criminal Spam Act prohibits registering for multiple email accounts or Internet domain names, and sending bulk email from those accounts or domains. This provision targets deceptive ``account churning,'' a common outlaw spammer technique that works as follows. The spammer registers, usually by means of an automatic computer program, for large numbers of email accounts or domain names, using false registration information, then sends bulk spam from one account or domain after another. This technique stays ahead of ISP filters by hiding the source, size, and scope of the sender's mailings, and prevents the email account provider or domain name registrar from identifying the registrant as a spammer and denying his registration request. Falsifying registration information for domain names also violates a basic contractual requirement for domain name registration.

Penalties for violations of these provisions are tough but measured. Recidivists and those who send spam in furtherance of another felony may be imprisoned for up to five years. Large-volume spammers, those who hack into another person's computer system to send bulk spam, and spam ``kingpins'' who use others to operate their spamming operations may be imprisoned for up to three years. Other offenders may be fined and imprisoned for no more than one year. Convicted offenders are also subject to forfeiture of proceeds and instrumentalities of the offense.

In addition to these criminal penalties, offenders are also subject to civil enforcement actions, which may be brought by either the Department of Justice or by an ISP. Civil remedies are important as a supplement to criminal enforcement for several reasons. First, bringing cases against outlaw spammers is very resource intensive because of the extensive forensic work involved in building a case; providing for civil enforcement will allow ISPs to assemble evidence to make prosecutors' jobs easier. Second, although criminal prosecutions are a critical deterrent against the most egregious spammers, the Justice Department is unlikely to prosecute all outlaw spam cases; civil enforcement, backed by strong financial penalties, will serve as a second layer of deterrence. Third, criminal penalties may not be appropriate in all cases, as for example in the case of teenagers hired by professional outlaw spammers to send out email for them; civil enforcement gives the Justice Department a more complete and refined range of tools to address specific outlaw spam problems.

That describes the main provisions of our bill. In addition, because commercial email can be, and is being, sent from all over the world into the virtual mailboxes of Americans, the bill directs the Administration to report on its efforts to achieve international cooperation in the investigation and prosecution of outlaw spammers.

Again, the purpose of the Criminal Spam Act is to deter the most pernicious and unscrupulous types of spammers--those who use trickery and deception to induce others to relay and view their messages. Ridding America's inboxes of deceptively delivered spam will significantly advance our fight against junk email. But the Criminal Spam Act is not a cure-all for the spam pandemic.

The fundamental problem inherent to spam--its sheer volume--may well persist even in the absence of fraudulent routing information and false identities. In a recent survey, 82 percent of respondents considered unsolicited bulk email, even from legitimate businesses, to be unwelcome spam. Given this public opinion, and in light of the fact that spam is, in essence, cost-shifted advertising, it may be wise to take a broader approach to our fight against spam.

One approach that has achieved substantial support is to require all commercial email to include an ``opt out'' mechanism, that is, a mechanism for consumers to opt out of receiving further unwanted spam. At the recent FTC forum, several experts expressed concerns about this approach, which permits spammers to send at least one piece of spam to each email address in their database, while placing the burden on email recipients to respond. People who receive dozens, even hundreds, of unwanted emails each day would have little time or energy for anything other than opting-out from unwanted spam.

According to one organization's calculations, if just one percent of the approximately 24 million small businesses in the U.S. sent every American just one spam a year, that would amount to over 600 pieces of spam for each person to sift through and opt-out of each day. And this figure may be conservative, as it does not include the large businesses that also engage in on-line advertising.

A second possible approach to spam--a national ``Do Not Spam'' registry--raises a different but no less difficult set of concerns. The two FTC Commissioners who testified last month at the Senate Commerce Committee's hearing on spam both questioned the potential of a national registry to alleviate the spam problem. Although this approach would place a smaller burden on consumers than would an opt-out system, it would entail immense costs, complexity, and delay, all of which work in the spammers' favor.

A third way of attacking spam--and one that was favored by many panelists and audience members at the FTC forum--is to establish an opt-in system, whereby bulk commercial email may only be sent to individuals and businesses who have invited or consented to it. This approach has strong precedent in the Telephone Consumer Protection Act of 1991, TCPA, which Congress passed to eliminate similar cost- shifting, interference, and privacy problems associated with unsolicited commercial faxes. The TCPA's ban on faxes containing unsolicited advertisements has withstood First Amendment challenges in the courts, and was adopted by the European Union in July 2002.

I have discussed three possible approaches to the spam problem, and there are several others, some of which have already been codified in state law. I encourage the consideration of all these anti-spam approaches in the weeks and months to come.

Reducing the volume of junk commercial email, and so protecting legitimate Internet communications, will

not be easy. There are important First Amendment interests to consider, as well as the need to preserve the ability of legitimate marketers to use email responsibly. If Congress does act, it must get it right, so as not to exacerbate an already terribly vexing problem.

The Criminal Spam Act is a first step in countering spam. If we can shut down the spammers who use deception to evade filters and confuse consumers, we will give the next generation of anti-spam technologies a chance to do their work. Our bill targets the most egregious offenders, it provides a much-needed federal cause of action, and it allows the states to continue to serve as a ``laboratory'' for tough anti-spamming regulation. I urge its speedy enactment into law.

Mr. President, I am pleased to support the nomination of Eduardo Aguirre to serve as Director of the Bureau of Citizenship and Immigration Services (BCIS), in the newly-created Department of Homeland Security. I was very impressed with him at his nomination hearing, and I look forward to working with him in his new position.

I am pleased that this nomination was referred to the Judiciary Committee, which continues to have jurisdiction over immigration legislation and oversight. Similarly, I am pleased that we were able to obtain unanimous consent last week for the Judiciary Committee to receive a subsequent referral on the nomination of Michael Garcia to head the Bureau of Customs and Immigration Enforcement--BICE.

The recent Inspector General report on the treatment of ``9/11 detainees''

shows the severe consequences that can be faced by those immigrants who fail to mention their unlawful status. Of course, the responsibility to remain here legally falls upon immigrants, but there are occasions when immigrants live up to that responsibility and are nonetheless failed by errors and backlogs on the Government's part. I hope and trust that preventing such errors will be a major priority for Mr. Aguirre. I also hope that he will use his position to battle the perception in many immigrant communities that the war on terrorism has become a war on immigrants.

At his confirmation hearing, I talked to Mr. Aguirre about the former INS employees in Vermont who will be under his jurisdiction, including those at the Vermont Service Center in St. Albans. I recommended to him that he build on the established INS workforce throughout the State by making Vermont a regional center for his agency, and I was pleased that he seemed to take that advice seriously. I am eager to work with him to see that idea become a reality.

On the national level, it was a priority for many of us in Congress that immigration services not be overlooked at the Department of Homeland Security. Although our security is paramount, the new Department must remember that our Nation's founding principals and economic health demand that immigration be handled in a fair and orderly way. After his confirmation hearing, I believe that Mr. Aguirre--himself a refugee--understands this at a fundamental level.

He faces a challenging job. I have already written him about the backlogs that plague our immigration system, and I hope that he is able to make meaningful change in that area. The President has pledged to reduce the average backlog for immigration petitions to 6 months by 2006--to do so is going to take serious investment, and I hope Mr. Aguirre will be a voice inside the administration to make that investment.

Madam President, today I am introducing the Seniors Safety Act of 2003, a bill to protect older Americans from crime. I am pleased to have Senators Daschle, Kennedy, Feingold, and Bingaman as cosponsors for this anti-crime bill.

The Seniors Safety Act is a comprehensive bill that addresses the most prevalent crimes perpetrated against seniors, including health care fraud, nursing home abuse, telemarketing fraud--and bribery, graft and fraud in pension and employee benefit plans. In addition, this legislation would help seniors obtain restitution if their pension plans are defrauded.

Older Americans are the most rapidly growing population group in our society, making them an even more attractive target for criminals. The Department of Health and Human Services has predicted that the number of older Americans will grow from 13 percent of the U.S. population in 2000 to 20 percent by 2030. In Vermont, seniors comprise about 12 percent of the population, a number that is expected to increase to 20 percent by 2025.

Crime against seniors has remained stubbornly resistant over the last decade. According to a 2000 Justice Department study, more than 90 percent of crimes committed against older Americans were property crimes, with theft the most common. As our Nation addressed our violent crime problem, we did not take a comprehensive approach to deterring the crimes that so affect the elderly, like telemarketing fraud, health care fraud, and pension fraud. The Seniors Safety Act provides such a comprehensive approach, and I urge the Senate to pass it.

The Seniors Safety Act instructs the U.S. Sentencing Commission to review current sentencing guidelines and, if appropriate, amend the guidelines to include the age of a crime victim as a criteria for determining whether a sentencing enhancement is proper. The bill also requires the Commission to review sentencing guidelines for health care benefit fraud, increases statutory penalties both for fraud resulting in serious injury or death and for bribery

and graft in connection with employee benefit plans, and increases criminal and civil penalties for defrauding pension plans.

Telemarketing fraud is one crime that disproportionately harms Americans over age 50. The Seniors Safety Act seeks to fight the perpetrators of fraud--schemes that often succeed in swindling seniors of their life savings. Some of these schemes are directed from outside the United States, making criminal prosecution more difficult.

The Act would provide the Attorney General with a new and substantial tool to prevent telemarketing fraud the power to block or terminate service to telephone facilities that are being used to defraud innocent people. The Justice Department could use this authority to disrupt telemarketing fraud schemes directed from foreign sources by cutting off the swindlers' telephone service. Even if the criminals acquire a new telephone number, temporary interruptions will prevent some seniors from being victimized.

The bill also establishes a ``Better Business Bureau''-style clearinghouse at the Federal Trade Commission to provide seniors, their families, and others who may be concerned about a telemarketer with information about prior law enforcement actions against the particular company. In addition, the FTC would refer seniors and other consumers who believe they have been swindled to the appropriate law enforcement authorities.

Criminal activity that undermines the safety and integrity of pension plans and health benefit programs threatens all Americans, but most especially those seniors who have relied on promised benefits in planning their retirements. Seniors who have worked faithfully and honestly for years should not reach their retirement years only to find that the funds they relied upon were stolen.

The Seniors Safety Act would add to the arsenal that federal prosecutors can draw upon to prevent and punish fraud against retirement plans. Specifically, the Act would create new criminal and civil penalties for defrauding pension plans or obtaining money or property from such plans by means of false or fraudulent pretenses. In addition, the Act would enhance penalties for bribery and graft in connection with employee benefit plans. The only people enjoying the benefits of pension plans should be the people who have worked hard to fund those plans, not crooks who get the money by fraud.

Health care spending consists of about 15 percent of the gross national product, or more than $1 trillion each year. Estimated losses due to fraud and abuse are astronomical. A December 1998 report by the National Institute of Justice, NIJ, states that these losses ``may exceed 10 percent of annual health care spending, or $100 billion per year.''

As more health care claims are processed electronically, more sophisticated computer-generated fraud schemes are surfacing. Some of these schemes generate thousands of false claims designed to pass through automated claims processing to payment, and result in the theft of millions of dollars from federal and private health care programs. Fraud against Medicare, Medicaid and private health plans increases the financial burden on taxpayers and beneficiaries alike. In addition, some forms of fraud may result in inadequate medical care, harming patients' health as well. Unfortunately, the NIJ reports that many health care fraud schemes ``deliberately target vulnerable populations, such as the elderly or Alzheimer's patients, who are less willing or able to complain or alert law enforcement.''

We saw a dramatic increase in criminal convictions for health care fraud cases during the 1990s. These cases included convictions for submitting false claims to Medicare, Medicaid, and private insurance plans; fraudulent billings by foreign doctors; and needless prescriptions for durable medical equipment by doctors in exchange for kickbacks from manufacturers.

We can and must do more. The Seniors Safety Act would allow the Attorney General to bring injunctive actions to stop false claims and illegal kickback schemes involving federal health care programs. The bill would also provide law enforcement authorities with additional investigatory tools to uncover, investigate, and prosecute health care offenses in both criminal and civil proceedings.

In addition, whistle-blowers who tip off law enforcement officers about health care fraud would be authorized under the Seniors Safety Act to seek court permission to review information obtained by the government to enhance their assistance in False Claims Act lawsuits. Such qui tam, or whistle-blower, suits have dramatically enhanced the government's ability to uncover health care fraud. The Act would allow whistle-blowers and their qui tam suits to become even more effective.

Finally, the Act would extend anti-fraud and anti-kickback safeguards to the Federal Employees Health Benefits program. These are all important steps that will help cut down on the enormous health care fraud losses.

As life expectancies continue to increase, long-term care planning specialists estimate that over 40 percent of those turning 65 eventually will need nursing home care, and that 20 percent of those seniors will spend five years or more in homes. Indeed, many of us already have experienced having our parents, family members or other loved ones spend time in a nursing home. We owe it to them and to ourselves to give the residents of nursing homes the best and safest care they can get.

The Justice Department has cited egregious examples of nursing homes that pocketed Medicare funds instead of providing residents with adequate care. In one case, five patients died as a result of the inadequate provision of nutrition, wound care and diabetes management by three Pennsylvania nursing homes. Yet another death occurred when a patient, who was unable to speak, was placed in a scalding tub of 138- degree water.

This Act provides additional peace of mind to nursing home residents and their families by providing federal law enforcement with the authority to investigate and prosecute operators of nursing homes for willfully engaging in patterns of health and safety violations in the care of nursing home residents. The Act also protects whistle-blowers from retaliation for reporting such violations.

This title of the Seniors Safety Act would authorize the Attorney General to use forfeited funds to pay restitution to victims of fraudulent activity, and authorize the courts to require the forfeiture of proceeds from retirement-related offenses. In addition, it would exempt false claims actions from being stayed in bankruptcy proceedings and ensure that debts due to the United States from false claims actions are not dischargeable in bankruptcy.

We all deserve to age with dignity and free of the threat of abuse or fraud. No one can guarantee that this will happen, but the Senior Safety Act can be a powerful new tool to help crack down on those who prey upon older Americans. This effort is about all of us and our families.

These are problems that have persisted too long. It is past the time for the Senate to act. I ask unanimous consent that the text of the legislation be printed in the Record.