Floor Statements

Mr. President, I rise today to introduce again legislation to eliminate one of the great inconsistencies in the Internal Revenue Code.

The bill I am introducing today with Senator Schumer is designed to restore some internal consistency to the tax code as it applies to art and artists. No one has ever said that the tax code is fair even though it has always been a theoretical objective of the code to treat similar taxpayers similarly.

The bill I am introducing today would address two areas where similarly situated taxpayers are not treated the same.

Internal inconsistency number one deals with the long-term capital gains tax treatment of investments in art and collectibles. If a person invests in stocks or bonds and sells at a gain, the tax treatment is long term capital gains. The top capital gains tax rate is 15 percent. However, if the same person invests in art or collectibles the top rate is hiked up to 28 percent. Art for art's sake should not incur a higher tax rate simply for revenue's sake. That is a big impact on the pocketbook of the beholder.

Art and collectibles are alternatives to financial instruments as an investment choice. To create a tax disadvantage with respect to one investment compared to another creates an artificial market and may lead to poor investment allocations. It also adversely impacts those who make their livelihood in the cultural sectors of the economy.

Santa Fe, NM, is the third largest art market in the country. We have a diverse colony of artists, collectors and gallery owners. We have fabulous Native American rug weavers, potters and carvers. Creative giants like Georgia O'Keeffe, Maria Martinez, E. L. Blumenshein, Allan Houser, R.C. Gorman, and Glenna Goodacre have all chosen New Mexico as their home and as their artistic subject. John Nieto, Wilson Hurley, Clark Hulings, Veryl Goodnight, Bill Acheff, Susan Rothenberg, Bruce Nauman, Agnes Martin, Doug Hyde, Margaret Nez, and Dan Ostermiller are additional examples of living artists creating art in New Mexico.

Art, antiques, and collectibles are a $12 to $20 billion annual industry nationwide. In New Mexico, it has been estimated that art and collectible sales range between $500 million and one billion a year.

Economists have always been interested in the economics of the arts. Adam Smith is a well-known economist. He was also a serious, but little-known essayist on painting, dancing, and poetry. Similarly, Keynes was both a famous economist and a passionate devotee of painting. However, even artistically inclined economists have found it difficult to define art within the context of economic theory.

When asked to define jazz, Louis Armstrong replied: ``If you gotta ask, you ain't never going to know.'' A similar conundrum has challenged Galbraith and other economists who have grappled with the definitional issues associated with bringing art within the economic calculus. Original art objects are, as a commodity group, characterized by a set of attributes: every unit of output is differentiated from every other unit of output; art works can be copied but not reproduced; and the cultural capital of the nation has significant elements of public good.

Because art works can be resold, and their prices may rise over time, they have the characteristics of financial assets, and as such may be sought as a hedge against inflation, as a store of wealth, or as a source of speculative capital gain. A study by Keishiro Matsumoto, Samuel Andoh and James P. Hoban, Jr. assessed the risk-adjusted rates of return on art sold at Sotheby's during the 14-year period ending September 30, 1989. They concluded that art was a good investment in terms of average real rates of return. Several studies found that rates of return from the price appreciation on paintings, comic books, collectibles and modern prints usually made them very attractive long- term investments. Also, when William Goetzmann was at the Columbia Business School, he constructed an art index and concluded that painting price movements and stock market fluctuations are correlated.

I conclude that with art, as well as stocks, past performance is no guarantee of future returns, but the gains should be taxed the same.

In 1990, the editor of Art and Auction asked the question: ``Is there an `efficient' art market?'' A well-known art dealer answered ``Definitely not. That's one of the things that makes the market so interesting.'' For everyone who has been watching world financial markets lately, the art market may be a welcome distraction.

Why do people invest in art and collectibles? Art and collectibles are something you can appreciate even if the investment doesn't appreciate. Art is less volatile. If buoyant and not so buoyant bond prices drive you berserk and spiraling stock prices scare you, art may be the appropriate investment for you. Because art and collectibles are investments, the long-term capital gains tax treatment should be the same as for stocks and bonds. This bill would accomplish that.

Artists will benefit. Gallery owners will benefit. Collectors will benefit. And museums benefit from collectors. About 90 percent of what winds up in museums like New York's Metropolitan Museum of Art comes from collectors.

Collecting isn't just for the hoity toity. It seems that everyone collects something. Some collections are better investments than others. Some collections are just bizarre. The Internet makes collecting big business, and flea market fanatics are avid collectors. In fact, people collect the darndest things. Books, duck decoys, chia pets, snowglobes, thimbles, handcuffs, spectacles, baseball cards, and guns are a few such ``collectibles.''

For most of these collections, capital gains isn't really an issue, but you never know. You may find that your collecting passion has created a tax predicament to phrase it politely. Art and collectibles are tangible assets. When you sell them, capital gains tax is due on any appreciation over your purchase price.

The bill provides capital gains tax parity because it lowers the top capital gains rate from 28 percent to 15 percent.

Internal inconsistency number two deals with the charitable deduction for artists donating their work to a museum or other charitable cause. When someone is asked to make a charitable contribution to a museum or to a fund raising auction, it shouldn't matter whether that person is an artist or not. Under current law, however, it makes a big difference. As the law stands now, an artist/creator can only take a deduction equal to the cost of the art supplies. The bill I am introducing will allow a fair market deduction for the artist.

It's important to note that this bill includes certain safeguards to keep the artist from ``painting himself a tax deduction.'' This bill applies to literary, musical, artistic, and scholarly compositions if the work was created at least 18 months before the donation was made, has been appraised, and is related to the purpose or function of the charitable organization receiving the donation. As with other charitable contributions, it is limited to 50 percent of adjusted gross income (AGI). If it is also a capital gain, there is a 30 percent of AGI limit. I believe these safeguards bring fairness back into the code and protect the Treasury against any potential abuse.

I hope my colleagues will help me put this internal consistency into the Internal Revenue Code.

I ask unanimous consent that and the text of the bill be printed in the Record.

Mr. President, I rise today to introduce again legislation to eliminate one of the great inconsistencies in the Internal Revenue Code.

The bill I am introducing today with Senator Schumer is designed to restore some internal consistency to the tax code as it applies to art and artists. No one has ever said that the tax code is fair even though it has always been a theoretical objective of the code to treat similar taxpayers similarly.

The bill I am introducing today would address two areas where similarly situated taxpayers are not treated the same.

Internal inconsistency number one deals with the long-term capital gains tax treatment of investments in art and collectibles. If a person invests in stocks or bonds and sells at a gain, the tax treatment is long term capital gains. The top capital gains tax rate is 15 percent. However, if the same person invests in art or collectibles the top rate is hiked up to 28 percent. Art for art's sake should not incur a higher tax rate simply for revenue's sake. That is a big impact on the pocketbook of the beholder.

Art and collectibles are alternatives to financial instruments as an investment choice. To create a tax disadvantage with respect to one investment compared to another creates an artificial market and may lead to poor investment allocations. It also adversely impacts those who make their livelihood in the cultural sectors of the economy.

Santa Fe, NM, is the third largest art market in the country. We have a diverse colony of artists, collectors and gallery owners. We have fabulous Native American rug weavers, potters and carvers. Creative giants like Georgia O'Keeffe, Maria Martinez, E. L. Blumenshein, Allan Houser, R.C. Gorman, and Glenna Goodacre have all chosen New Mexico as their home and as their artistic subject. John Nieto, Wilson Hurley, Clark Hulings, Veryl Goodnight, Bill Acheff, Susan Rothenberg, Bruce Nauman, Agnes Martin, Doug Hyde, Margaret Nez, and Dan Ostermiller are additional examples of living artists creating art in New Mexico.

Art, antiques, and collectibles are a $12 to $20 billion annual industry nationwide. In New Mexico, it has been estimated that art and collectible sales range between $500 million and one billion a year.

Economists have always been interested in the economics of the arts. Adam Smith is a well-known economist. He was also a serious, but little-known essayist on painting, dancing, and poetry. Similarly, Keynes was both a famous economist and a passionate devotee of painting. However, even artistically inclined economists have found it difficult to define art within the context of economic theory.

When asked to define jazz, Louis Armstrong replied: ``If you gotta ask, you ain't never going to know.'' A similar conundrum has challenged Galbraith and other economists who have grappled with the definitional issues associated with bringing art within the economic calculus. Original art objects are, as a commodity group, characterized by a set of attributes: every unit of output is differentiated from every other unit of output; art works can be copied but not reproduced; and the cultural capital of the nation has significant elements of public good.

Because art works can be resold, and their prices may rise over time, they have the characteristics of financial assets, and as such may be sought as a hedge against inflation, as a store of wealth, or as a source of speculative capital gain. A study by Keishiro Matsumoto, Samuel Andoh and James P. Hoban, Jr. assessed the risk-adjusted rates of return on art sold at Sotheby's during the 14-year period ending September 30, 1989. They concluded that art was a good investment in terms of average real rates of return. Several studies found that rates of return from the price appreciation on paintings, comic books, collectibles and modern prints usually made them very attractive long- term investments. Also, when William Goetzmann was at the Columbia Business School, he constructed an art index and concluded that painting price movements and stock market fluctuations are correlated.

I conclude that with art, as well as stocks, past performance is no guarantee of future returns, but the gains should be taxed the same.

In 1990, the editor of Art and Auction asked the question: ``Is there an `efficient' art market?'' A well-known art dealer answered ``Definitely not. That's one of the things that makes the market so interesting.'' For everyone who has been watching world financial markets lately, the art market may be a welcome distraction.

Why do people invest in art and collectibles? Art and collectibles are something you can appreciate even if the investment doesn't appreciate. Art is less volatile. If buoyant and not so buoyant bond prices drive you berserk and spiraling stock prices scare you, art may be the appropriate investment for you. Because art and collectibles are investments, the long-term capital gains tax treatment should be the same as for stocks and bonds. This bill would accomplish that.

Artists will benefit. Gallery owners will benefit. Collectors will benefit. And museums benefit from collectors. About 90 percent of what winds up in museums like New York's Metropolitan Museum of Art comes from collectors.

Collecting isn't just for the hoity toity. It seems that everyone collects something. Some collections are better investments than others. Some collections are just bizarre. The Internet makes collecting big business, and flea market fanatics are avid collectors. In fact, people collect the darndest things. Books, duck decoys, chia pets, snowglobes, thimbles, handcuffs, spectacles, baseball cards, and guns are a few such ``collectibles.''

For most of these collections, capital gains isn't really an issue, but you never know. You may find that your collecting passion has created a tax predicament to phrase it politely. Art and collectibles are tangible assets. When you sell them, capital gains tax is due on any appreciation over your purchase price.

The bill provides capital gains tax parity because it lowers the top capital gains rate from 28 percent to 15 percent.

Internal inconsistency number two deals with the charitable deduction for artists donating their work to a museum or other charitable cause. When someone is asked to make a charitable contribution to a museum or to a fund raising auction, it shouldn't matter whether that person is an artist or not. Under current law, however, it makes a big difference. As the law stands now, an artist/creator can only take a deduction equal to the cost of the art supplies. The bill I am introducing will allow a fair market deduction for the artist.

It's important to note that this bill includes certain safeguards to keep the artist from ``painting himself a tax deduction.'' This bill applies to literary, musical, artistic, and scholarly compositions if the work was created at least 18 months before the donation was made, has been appraised, and is related to the purpose or function of the charitable organization receiving the donation. As with other charitable contributions, it is limited to 50 percent of adjusted gross income (AGI). If it is also a capital gain, there is a 30 percent of AGI limit. I believe these safeguards bring fairness back into the code and protect the Treasury against any potential abuse.

I hope my colleagues will help me put this internal consistency into the Internal Revenue Code.

I ask unanimous consent that and the text of the bill be printed in the Record.

Mr. President, I rise today to introduce legislation to protect the recent discovery of a natural wonder in my home State of New Mexico. That discovery is a passage within the Fort Stanton Cave that contains what can only be described as a magnificent white river of calcite. I am pleased to be joined in this effort by my colleague from New Mexico, Senator Bingaman.

Many locals are familiar with the Fort Stanton Cave in Lincoln County, NM. Exploration of the cave network dates back to at least the 1850s, when troops stationed in the area began visiting the caverns. That exploration has continued into the 21st century, and in 2001 led to a unique discovery of a two-mile long continuous calcite formation by BLM volunteers.

We have not found a formation of this size anywhere else in New Mexico or perhaps even in the United States. In addition to the beauty of this discovery, I am particularly excited about the scientific and educational opportunities associated with the find. This large, continuous stretch of calcite may yield valuable research opportunities relating to hydrology, geology, and microbiology. In fact, there may be no limits to what we can learn from this snow white cave passage.

It is not often that we find something like the calcite formation recently discovered at Ft. Stanton. I believe this find is worthy of study and our most thoughtful management and conservation.

My legislation does the following: 1. creates a Fort Stanton-Snowy River

Cave Conservation Area to protect, secure and conserve the natural and unique features of the Snowy River Cave. 2. instructs the BLM to prepare a map and legal description of the Snowy River cave, and to develop a comprehensive, long-term management plan for the cave area. 3. authorizes the conservation of the unique features and environs in the cave for scientific, educational and other public uses deemed safe and appropriate under the management plan. 4. authorizes the BLM to work hand in hand with colleges, universities, scientific institutions, and researchers to further our understanding of the geologic, hydrologic, mineralogical, and biologic significance of Snowy River. 5. protects the caves from mineral and mining leasing operations; and 6. protects existing surface uses at Fort Stanton.

New Mexico is home to many natural wonders, and I am proud to play a role in the protection of this newest unique discovery in my State. I hope my colleagues will join with me in approving the Fort Stanton- Snowy River National Cave Conservation Area Act. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce legislation to protect the recent discovery of a natural wonder in my home State of New Mexico. That discovery is a passage within the Fort Stanton Cave that contains what can only be described as a magnificent white river of calcite. I am pleased to be joined in this effort by my colleague from New Mexico, Senator Bingaman.

Many locals are familiar with the Fort Stanton Cave in Lincoln County, NM. Exploration of the cave network dates back to at least the 1850s, when troops stationed in the area began visiting the caverns. That exploration has continued into the 21st century, and in 2001 led to a unique discovery of a two-mile long continuous calcite formation by BLM volunteers.

We have not found a formation of this size anywhere else in New Mexico or perhaps even in the United States. In addition to the beauty of this discovery, I am particularly excited about the scientific and educational opportunities associated with the find. This large, continuous stretch of calcite may yield valuable research opportunities relating to hydrology, geology, and microbiology. In fact, there may be no limits to what we can learn from this snow white cave passage.

It is not often that we find something like the calcite formation recently discovered at Ft. Stanton. I believe this find is worthy of study and our most thoughtful management and conservation.

My legislation does the following: 1. creates a Fort Stanton-Snowy River

Cave Conservation Area to protect, secure and conserve the natural and unique features of the Snowy River Cave. 2. instructs the BLM to prepare a map and legal description of the Snowy River cave, and to develop a comprehensive, long-term management plan for the cave area. 3. authorizes the conservation of the unique features and environs in the cave for scientific, educational and other public uses deemed safe and appropriate under the management plan. 4. authorizes the BLM to work hand in hand with colleges, universities, scientific institutions, and researchers to further our understanding of the geologic, hydrologic, mineralogical, and biologic significance of Snowy River. 5. protects the caves from mineral and mining leasing operations; and 6. protects existing surface uses at Fort Stanton.

New Mexico is home to many natural wonders, and I am proud to play a role in the protection of this newest unique discovery in my State. I hope my colleagues will join with me in approving the Fort Stanton- Snowy River National Cave Conservation Area Act. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I would like to pay tribute to those men and women of the U.S. armed services, who have given their lives to defend our Nation and the ideals it represents.

Since the birth of our Nation 229 years ago, millions of Americans have answered the call to serve. They left behind the comfort of home, family and friends, to protect the American way of life and insure that our country would remain free and a land of opportunity for all. On this day I would like to remember those whom did not return.

On this Memorial Day, I am put in mind of the 200th and 515th Costal Artillery units of the New Mexico National Guard, better known as the New Mexico Brigade. The New Mexico Brigade played a prominent and heroic role in the fierce fighting in the Philippines, during those first dark days of the Second World War. For 4 months the men of the 200th and 515th helped hold off the Japanese only to be defeated by disease, starvation and a lack of ammunition.

Tragically the survivors of the Battle of Bataan from the New Mexico Brigade were subjected to the horrors and atrocities of the 65 mile ``Death March'' and to years of hardship and forced labor in Japanese prisoner of war camps. Sadly, of the 1800 men of the New Mexico Brigade more than 900 lost their lives in that far off place. This day belongs to them and all other Americans such as them.

I believe it is especially important not to forget; the men and women of America's Armed Forces have given their lives not only in defense of our Nation, but to preserve the freedom of others around the globe. This is almost unquiet in human history, and no praise can be too great for those individuals.

Today I would like to make special mention of those New Mexicans who have given their lives in Operation Iraq Freedom and the global war on terror. I ask that New Mexicans on Memorial Day think of them and their families and give thanks that we are blessed with such heroic men and women.

We must never forget the sacrifices of our solders, sailors, airmen, and marines. I encourage New Mexican's and all Americans on Memorial Day to take a moment to remember and honor the brave men and women whom have fallen in our defense. At this moment in America's history, our men and women in uniform are again furthering the cause of freedom around the world and ensuring the safety of the United States of America. They serve with the same courage and commitment shown by Americans of generations past and they deserve our thoughts and prayers on this Memorial Day as well.

Mr. President, I would like to recognize the outstanding men and women of the 49th Fighter Wing at Holloman Air Force Base in New Mexico.

The 49th has received a deployment order to the Western Pacific region in support of our national defense objectives.

Around 250 personnel from Holloman, along with approximately 15 F- 117A

Nighthawks, are preparing to depart for the Republic of Korea. Their 4- month deployment is part of an ongoing measure to maintain a credible deterrent posture and presence in the region and demonstrates the continued U.S. commitment towards fulfilling security responsibilities throughout the Western Pacific.

The F-117A, and the personnel that fly and maintain them, continue to be vital to our national security strategy. This is why I am so pleased the Senate Armed Services Committee included my bill to restrict retirement of any Nighthawks in fiscal year 2006 in the committee passed bill.

We must maintain the ability to deliver precision munitions onto time sensitive, high value targets, wherever and whenever the need arises. And I am so proud of the men and women from New Mexico that take on this very dangerous but important mission in service to their country. They are all superstars that deserve the heartfelt appreciation of a grateful Nation.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Rail Crossing Safety Funding

Mr. President, I rise today in support of the highway bill. I want to first applaud the bill manager, my good friend Senator Inhofe for all of his hard work on this important legislation. I also want to thank the ranking member of the EPW committee, Senator Jeffords, for his work on the bill.

Mr. President, the highway bill is one of the most important pieces of legislation that the Senate undertakes. This bill makes it possible to construct and repair vital transportation arteries that crisscross this great Nation. As our country grows we must be conscious of our transportation needs. Accordingly, this bill increases funding for road construction that will substantially reduce traffic delays that plague the country. Additionally, this bill substantially increases transit funding further reducing congestion and pollution caused by over- populated highways.

My home state of New Mexico is one of the most rural states in the country. However, our population is on the rise and it is vitally important to ensure New Mexicans have the transportation infrastructure they need to be competitive with the rest of the country. This bill will provide roughly $1.7 billion in funding for New Mexico specific projects.

This bill also increases funding for the Indian roads program. I have advocated for increased Indian roads funding for a number of years and while this increase only begins to address the need, it will help immensely in addressing the economic development problems facing Indian Country.

Once again, I would like to thank the chairman and ranking member of the EPW Committee and their staff for doing a great job in getting this bill completed.

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

Madam President, how much time remains on the minority side?

Madam President, do I understand that the Senator from New Mexico has up to 10 minutes at this point in morning business?

Thank you very much.

Madam President and fellow Senators, I want to start by submitting a couple of editorials from papers in the State of New Mexico.

First of all, I want to start with an editorial from a paper in New Mexico called the Santa Fe New Mexican. I do not want to editorialize too much about this paper, but I think it is fair to say this is not a conservative newspaper. I believe it is fair to say it is a pretty liberal paper. It is probably even more than mildly liberal, very liberal. But I was impressed by their grasp of this issue and a statement that was in their editorial.

Madam President, I ask unanimous consent that these editorials be printed in the Record.

Madam President, I want to read the operative paragraph from the Santa Fe New Mexican:

With this spiteful behavior toward Bush appointees, the

Dems aren't exactly gaining goodwill.

If they find [these nominees] so repugnant, let 'em vote

against [them]; at least they'll be putting their ideals--or

their party colors--on display. But this is no Mr. Smith

against some diabolical establishment; it's a bunch of sore

losers making themselves even more so. . . .

This is not Pete Domenici speaking. I am reading from this editorial:

The last thing our justice system needs is an ongoing feud

over appointments to district and appellate judgeships.

Now, yesterday, or maybe a day before, the major paper in the State, the Albuquerque Journal, had an editorial with a very interesting title: ``Filibuster Puts Bar [B-A-R] Too High for Judges.''

It is a very interesting editorial, with a play on words: ``Bar'' meaning the bench; and ``Bar,'' with the idea that you have to have 60 votes, is disavowed by this editorial. There is some nice recognition and discussion about the fact that a number of the Senators on the other side who are talking about this issue as if there was a filibuster allowed for judges--which I do not believe there is--the editorial explains that a number of Democrats were for doing away with the filibuster in its entirety about 10 years ago. At a point, that was a very major discussion here, and it was principally motivated by the Democratic Party, to get rid of the filibuster in its entirety. The editorial says how interesting and paradoxical it is that some of those who did not, at the time, want the filibuster around at all are arguing about it existing for judges--this is not conclusive but is interesting.

So I am here because I would like to make my case and explain to the Senate why this Senator from New Mexico thinks we should have an up-or- down vote on the circuit court judicial nominees of the President who are pending.

First, I want to make the point that I am not trying to change anything. So when people say, Republican Senators want to change the filibuster rule, I am for changing nothing.

What does that mean? That means I am for leaving the rule as it is. What does that mean? That means there is no filibuster rule relating to judges now. All the discussion about why should we change the rule is not the issue. The issue is, why are we denying circuit court judges an up-or-down vote--that is, majority rule--when that is what the precedent of the Senate has been for the last 200-plus years?

For anybody who thinks the filibuster rule is absolutely inherent in anything the Senate does, that the rule came down from the Constitution to the Senate as: Thou shalt have a filibuster rule, that is not so. Look in the Constitution. There is no mention of filibusters. As a matter of fact, the document is filled with references to majority rule. And where the Constitution requires that we have more than a majority, it says so. So look to the Constitution to see if there are any times when our Founding Fathers said a two-thirds vote or more than a simple majority are necessary, and you will find there are few occasions and they are mentioned specifically. Therefore, I would assume the Constitution does not require super-majorities for judicial nominees. If we tried to say otherwise, I assume it would be thrown out in a minute.

The question then is, what do we Republicans want? What do--maybe it won't all be Republicans in the end--we want now? We want judges who were nominated by this President for the circuit courts of appeal over a long period of time--and I will cite an example shortly--to have an up-or-down vote. I hope people understand, all these other questions that are asked of them, they beg the issue. The issue is, should a circuit court nominee who is otherwise qualified, meaning the American Bar Association and the people who work with them believe they are qualified, have a vote. That is the issue.

I cannot believe the majority of Americans, given that set of facts, would say no, you need to get two-thirds of the vote under those circumstances. What are those circumstances? Those circumstances are that some in this body don't like the

nominees. The Constitution didn't say this is an issue of whether you like the nominees. It said, you are voting advice and consent for the nominee. So the point is, you exercise your right by saying: I don't consent. In advising, I withhold my consent and say no. The Constitution doesn't say two-thirds of you must say you have advised and you consent. That is the issue.

As I see it on television and read about it, we can see people arguing that we shouldn't change. The filibuster is part of the fiber of the Senate. We should not alter it.

I have explained that it isn't part of the fiber of the Senate with regards to judicial nominees. As a matter of fact, even on other issues besides judges, it is not certain that it existed when we were founded. There is a long period of history when we are not even sure the filibuster existed. But I am not here saying the filibuster does not now exist. In fact, I am for the filibuster. I didn't vote in favor of getting rid of the filibuster. Half of my service in this body has been as a minority Senator. So I know what it is to be a minority Member who appreciates the filibuster. But I also don't like the filibuster sometimes. I get upset. I wonder why it holds up so much legislation.

I might add parenthetically that I don't like the way the filibuster is used around here now because it is used all the time for anything. Thirty times a year we have to have cloture filed. We didn't do that for 25 of the 30 years I have been here. It was very rare. In its earliest vintage, it was on matters of monumental importance to Senators, regions, or to Americans. Now every time we have a bill, if a few people say, we don't want to let that pass, you have a filibuster.

I am not for changing the filibuster because of irreverence toward the Senate's right to vote. I don't think I am voting to change it when I talk about judges, because you don't change if you are trying to say, do what we have been doing. I have tried my best to read, first, what is a filibuster. I have checked and I have read. I understand.

How do you get rid of it? I checked and I understand how you get rid of a filibuster. But I have also tried to find out when are filibusters used, and I have found that in the Senate it is not generally used with reference to voting on a nominee for Federal judgeships in the United States.

I am not in favor of our leadership pursuing a process that gives us an up-or-down vote, if that process gets rid of the filibuster for everything. I have already inquired. I am assured that is not the case. I have been assured we won't be voting on that. It will be only regarding judges.

So have we in the past filibustered judges? By that I mean, had a judge come down to the floor out of committee ready to be voted on and have we killed that judge's chance by filibustering? No, no. Never, never. One case is cited, and it is Abe Fortas.

Abe Fortas was a Lyndon Johnson appointee who was on the bench, already confirmed. The issue was, President Johnson wanted to put him in a vacancy that occurred for Chief Justice which you know we have to vote on. And the Senate got into a debate about whether he should get it, and there was great consternation on the floor of the Senate as to whether he should be confirmed for that. The truth is, he was not killed by filibuster. His name was voluntarily withdrawn. He later even left the Supreme Court. But the record is pretty certain that he was not killed by filibuster. That wasn't a judicial appointment, anyway. But even if you want to tie that in, that did not happen.

What have Senators around here said about this? I understand each can come down here and put it in whatever context they would like. My good friend, Senator Kennedy from Massachusetts, said on February 3, 1998, page S295 of the Congressional Record:

We owe it to Americans across the country to give these

nominees a vote. If our Republican colleagues don't like

them, vote against them. But give them a vote.

That is not me. That is Senator Kennedy.

Senator Leahy said, June 8, 1998, page S6521 of the Congressional Record:

I would object and fight against any filibuster on a judge,

whether it is somebody I opposed or supported . . .

Interesting. I have seen the distinguished Senator from New York--I haven't heard him personally, but I have seen him and heard him on television with his right fist like this saying: We don't need any right wing judges or we don't need the right wing pushing us to appoint radical judges.

I could as well put up my left hand, but I won't, and say we don't need anybody telling us to appoint liberal judges. But the distinguished Senator from New York said:

This delay makes a mockery of the Constitution, makes a

mockery of the fact that we are here working, and makes a

mockery of the lives of very sincere people who have put

themselves forward to be judges and then they hang out there

in limbo.

That is dated March 7, 2000, page S1211 of the Congressional Record. I also told you about the New Mexico editorials.

So people will understand how gross this abuse of the filibuster is and how it is prompted by personal angst, not qualifications, I am going to refer to one judge as an example. Let's take the nominee Priscilla Owen, Fifth Circuit, and let's look at her in comparison with judges who are on that court who have come before the Senate. Let's look at the first one, Patrick Higginbotham, nominated by Ronald Reagan, graduate of the University of Alabama, University of Alabama Law School. How long did it take to get through here? Twenty-six days. Nominee Emilio Garza, President Bush appointee, University of Notre Dame, University of Texas Law School, judicial experience, Bexar County Texas District Court.

I am sure controversial people had a thing to say, but I am also sure this and the previous nominee were recommended or were certified to be qualified by the American Bar which, incidentally, most of the time this Senator has been here, that was the sine qua non. If you didn't have that, you were in trouble. And if you had it, conversely, that was pretty good. You must be qualified. That is what the old rule was. I am sure they had that. Forty-three days for him to be confirmed.

Here we have Fortunato Benavides, nominated by President Clinton, University of Houston, University of Houston Law School, previous experience, 13th Court of Appeals for Texas, Texas Criminal Court of Appeals, 99 days to be confirmed. He got nominated and confirmed in 99 days. There was a lot of commotion about him. He got here for a vote.

Now we have Priscilla Owen, George W. Bush's nominee, Baylor University, Baylor University School of Law, Texas Supreme Court, 1994 to the present. Both of these nominees were qualified, according to the American Bar, both of these, Mr. Benavides, Judge Owen, a lot of letters of commendation from those who know about their judicial temperament, their qualifications. I told you where she came from, where she was educated, where she served. Look at the time she's been waiting for a vote--I know Americans will better understand our dilemma--1,450 days waiting for us to say what the American people I believe would like us to say, and what I think the Constitution says we ought to say, and that is yes or no. Not maybe; not, ``well, I don't like their ideals so you need 60 votes.'' That is a pretty long time to leave a qualified judge hanging here unless you are absolutely certain that person is not qualified to be a judge.

There is a lot more one can say about this, but I believe, as one who has been here a long time--I think right now there are only four people here sitting longer than I in the Senate--we should get this over with.

This is hanging over the Senate in a very damaging way. With the passing of each day, more and more is said, more and more joining sides is taking place, digging in your feet, more and more groups outside are adding to the vitriolic nature of the debate. The talking heads--the news people who talk all the time on TV and speak on radio and write all the time--are choosing sides. They are feeding a frenzy, and we are suffering. But most of all, the American people are suffering because if we keep on, it is going to be hard to get our work done.

I close by saying that our friends on the other side are led by a Senator whom I honestly and sincerely say is a good leader for the minority, Senator

Harry Reid, an excellent Senator--I believe he is fair and honest. I believe he would like to get this issue out of his mind and out of here. But he has suggested that if the majority party insists on doing what we are entitled to do--voting for these judges up or down by a majority vote--if we do that, which, I repeat, is not changing anything, the business of America will stop. We will pass nothing here. The Senate will be dead. America's business will go nowhere; it will disappear. That is an extraordinary threat, a threat that those who are making it better clearly understand.

Does that really mean that we won't get a highway bill, an energy bill, an appropriations bill that pays for education, a bill that pays for the operation of our military, that we won't get an appropriations bill through here that pays for our parks, for the Indian schools of our country, and on and on? Have we really reached a point where the minority is saying, we are going to insist on enforcing a rule that doesn't exist, that denies an up-or-down vote on judges who are qualified, and if we don't get our way, Government stops?

You know, I hope everybody understands that. I hope it doesn't happen. I think that editorial I read from suggests that those who do that are not going to come out of this with any accolades--nobody is going to be proud of that. I believe that is almost a minimum way of saying it. I think that will inure to the minority party being considered to be irresponsible on behalf of the people of this country.

I thank the Senate for listening, and I yield the floor.

Mr. President, on April 6, 2005, I voted against a motion to table amendment, No. 309, otherwise known as the Schumer amendment, to the fiscal year 2006-2007 Foreign Affairs authorization bill. Upon careful consideration of this issue I have come to the conclusion that this amendment will be ineffective at best and harmful at worst. As it is currently written, the Schumer amendment will impose a tariff on all Chinese imports. Sponsors of the amendment claim this measure is necessary in order to compel the Chinese Government to revalue its currency.

I am a supporter of free trade. I also believe that the benefits of free trade must be weighed against any harm that could be done to vital American interests. Understandably, there is considerable angst over the expanding trade deficit between the United States and China. Still, this body should not be hasty to repeat a mistake of the 106th Congress when it acted to support a similar amendment to the 2000 China trade bill.

Similar to what the Schumer amendment proposes, provisions in the China trade bill allowed the Federal Government to impose a de facto tariff in the form of dumping penalties against foreign companies. The collected penalties were distributed to the companies that filed complaints in the U.S. It should be noted that the WTO defines ``dumping'' as a situation where goods are sold below price normally charged in home market. By contrast, and to the consternation of our trade partners, domestic American companies have thought of dumping as goods being sold below price normally charged in the U.S. market. Over the past 4\1/2\ years since the bill was enacted, American companies have collected over $1 billion in penalties from suits filed in the United States.

While that might not seem like such a bad thing, other governments have been busy filing complaints with the World Trade Organization. They are now determined to impose 15 percent tariffs against American exporters as punishment for the American ``dumping'' penalties. The costs of these tariffs will be borne by all sorts of American manufacturers and exporters. These tariffs will also punish American workers by making their work products uncompetitive in the global market.

I raise this parallel because it reveals to us the dangers of not seeking resolution through an agreed-to and effective framework provided by the WTO. The strength of the American economy has always been based on the openness of our markets. Unilaterally imposing tariffs on Chinese imports will act as an unfair tax on American exporters and that is a price we cannot afford to pay.

Mr. President, I rise today to introduce legislation creating the Bridge Research Center at New Mexico State University. I would also like to thank my good friend Senator Bingaman for cosponsoring this important bill.

New Mexico State University (NMSU) is uniquely qualified to be the home of the Bridge Research Center. For over three decades NMSU has applied its considerable talents to solving technological problems related to bridge systems. It makes sense that we capitalize on NMSU's history and expertise in this field by establishing the bridge research center.

The Bridge Research Center will develop smart bridge evaluation techniques using advanced sensors and instrumentation. Additionally, the NMSU Bridge Center will improve bridge design methodologies, create new inspection techniques for bridges, and find better ways to conduct nondestructive evaluation and testing. Finally, the Bridge Center will conduct research into high performance materials to address durability and retrofit needs.

I have no doubt that NMSU will apply its extensive capability to develop theoretical concepts into practical solutions for bridge problems all across our country.

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

Mr. President, I rise today to introduce legislation creating the Bridge Research Center at New Mexico State University. I would also like to thank my good friend Senator Bingaman for cosponsoring this important bill.

New Mexico State University (NMSU) is uniquely qualified to be the home of the Bridge Research Center. For over three decades NMSU has applied its considerable talents to solving technological problems related to bridge systems. It makes sense that we capitalize on NMSU's history and expertise in this field by establishing the bridge research center.

The Bridge Research Center will develop smart bridge evaluation techniques using advanced sensors and instrumentation. Additionally, the NMSU Bridge Center will improve bridge design methodologies, create new inspection techniques for bridges, and find better ways to conduct nondestructive evaluation and testing. Finally, the Bridge Center will conduct research into high performance materials to address durability and retrofit needs.

I have no doubt that NMSU will apply its extensive capability to develop theoretical concepts into practical solutions for bridge problems all across our country.

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

Mr. President, I would like to announce for the information of the Senate and the public that a hearing has been scheduled before the Committee on Energy and Natural Resources on Wednesday, May 11, at 10 a.m. in Room SD-366 of the Dirksen Senate Office Building in Washington, DC.

The purpose of the hearing is to receive testimony on S. 895, a bill to direct the Secretary of the Interior to establish a rural water supply program in the Reclamation States to provide a clean, safe, affordable, and reliable water supply to rural residents.

For further information please contact Nate Gentry at 202-224-2179 or David Marks at 202-228-6195.

Mr. President, in the 1746 Poor Richard's Almanac, Benjamin Franklin wrote, ``When the well is dry, we learn the worth of water.'' Nowhere is the bottom of the well approaching more quickly than in western United States. Nearly depleted aquifers and deteriorated infrastructure on which our small and rural communities rely coupled with their inability to raise large amounts of capital to afford water infrastructure has resulted in substantial want. When the water dries up, so will many of our communities. As such, the scarcity of water in rural western communities is a dire situation.

An article appearing on April 15, 2005 in the Wall Street Journal elucidates the breadth of our Nation's water infrastructure need. The article states that most water infrastructure and water treatment plants in the U.S. are more than 50 years old and, in many cases, are more than 100 years old. The huge capital outlays needed to rehabilitate this aging and, in many cases, deteriorated infrastructure far exceeds the ability of many rural communities to pay. Neither can these communities accommodate the costs in their rate structures nor are the necessary capital outlays within their bonding capacity. Exacerbating this problem is that, in many western states such as

my home state of New Mexico, ground water supplies for which many communities have relied on for water are nearly depleted. In many cases, the only practicable alternative for providing water to these communities is to build public works projects to transport water from other sources. This, too, requires large sums of money which rural and small communities can ill-afford.

Today, I rise to introduce the Rural Water Supply Act of 2005. This bill would begin the process of providing for the essential water needs of rural communities in the western United States. It establishes a federal loan guarantee program within the Bureau of Reclamation that would allow rural communities to obtain loans at interest rates far lower than had the loans not been guaranteed by the Federal Government. This allows rural communities access to the large sums of money required to construct water infrastructure while recognizing the significant demand on the Bureau's budget. The bill also expedites the appraisal and feasibility studies which allow these communities to assess how best to address their water supply needs and act accordingly. At present, rural communities have to wait for Congress to direct the Bureau of Reclamation to proceed with appraisal and feasibility studies. This bill expedites the appraisal and feasibility level process by requiring that, upon request of the community, the Bureau perform a study, provide funds to a rural water community to perform them, or accept and review studies undertaken independently by a community. This bill will provide much needed assistance to struggling communities.

I would like to thank Senator Bingaman, the ranking member of the Committee of Energy and Natural Resources who I have had the great pleasure of serving with for over two decades for being an original co- sponsor of this bill. In addition, I very much appreciate the willingness of the Bureau of Reclamation to work with my staff on this important matter.

Preserving our rural communities in the west requires that we address this instantly and vigorously. The U.S. Congress cannot sit idly by as water shortages cause death to our rural communities. I assure you that this bill will receive prompt consideration in the Energy and Natural Resources Committee and it is my sincere hope that the Senate will give this legislation its every consideration.

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

Mr. President, in the 1746 Poor Richard's Almanac, Benjamin Franklin wrote, ``When the well is dry, we learn the worth of water.'' Nowhere is the bottom of the well approaching more quickly than in western United States. Nearly depleted aquifers and deteriorated infrastructure on which our small and rural communities rely coupled with their inability to raise large amounts of capital to afford water infrastructure has resulted in substantial want. When the water dries up, so will many of our communities. As such, the scarcity of water in rural western communities is a dire situation.

An article appearing on April 15, 2005 in the Wall Street Journal elucidates the breadth of our Nation's water infrastructure need. The article states that most water infrastructure and water treatment plants in the U.S. are more than 50 years old and, in many cases, are more than 100 years old. The huge capital outlays needed to rehabilitate this aging and, in many cases, deteriorated infrastructure far exceeds the ability of many rural communities to pay. Neither can these communities accommodate the costs in their rate structures nor are the necessary capital outlays within their bonding capacity. Exacerbating this problem is that, in many western states such as

my home state of New Mexico, ground water supplies for which many communities have relied on for water are nearly depleted. In many cases, the only practicable alternative for providing water to these communities is to build public works projects to transport water from other sources. This, too, requires large sums of money which rural and small communities can ill-afford.

Today, I rise to introduce the Rural Water Supply Act of 2005. This bill would begin the process of providing for the essential water needs of rural communities in the western United States. It establishes a federal loan guarantee program within the Bureau of Reclamation that would allow rural communities to obtain loans at interest rates far lower than had the loans not been guaranteed by the Federal Government. This allows rural communities access to the large sums of money required to construct water infrastructure while recognizing the significant demand on the Bureau's budget. The bill also expedites the appraisal and feasibility studies which allow these communities to assess how best to address their water supply needs and act accordingly. At present, rural communities have to wait for Congress to direct the Bureau of Reclamation to proceed with appraisal and feasibility studies. This bill expedites the appraisal and feasibility level process by requiring that, upon request of the community, the Bureau perform a study, provide funds to a rural water community to perform them, or accept and review studies undertaken independently by a community. This bill will provide much needed assistance to struggling communities.

I would like to thank Senator Bingaman, the ranking member of the Committee of Energy and Natural Resources who I have had the great pleasure of serving with for over two decades for being an original co- sponsor of this bill. In addition, I very much appreciate the willingness of the Bureau of Reclamation to work with my staff on this important matter.

Preserving our rural communities in the west requires that we address this instantly and vigorously. The U.S. Congress cannot sit idly by as water shortages cause death to our rural communities. I assure you that this bill will receive prompt consideration in the Energy and Natural Resources Committee and it is my sincere hope that the Senate will give this legislation its every consideration.

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