Floor Statements

Mr. Chairman, the proposed Treasury regulation ``safe harbor'' in the Pension Security and Transparency Act of 2005 states:

The accrued benefit determined under this subparagraph

shall be determined under regulations prescribed by the

Secretary which are consistent with the purposes of this

paragraph and which may require a plan to provide a credit of

additional amounts or increases in additional account

balances in amounts substantially equivalent to the benefits

that would be required to be provided to meet the

requirements of subparagraphs (B) or (C).

Mr. Chairman, am I correct in my understanding that the intention of this provision authorizing Treasury regulations is that the Secretary be given the widest latitude possible to approve cash balance conversions falling within the spirit of the conversion requirements?

Mr. Chairman, do you agree that the provision is intended to allow Treasury to consider for purposes of the regulatory safe harbor cash balance plan conversions that are announced 5 or more years in advance, allow employees to continue to accrue benefits under the old formula until the conversion date and thereafter provide full protection for previously accrued benefits as well as the opportunity to ``grow into'' early retirement subsidies under the old formula; and that provide full cash balance plan accruals after conversion without wear away?

I thank the distinguished chairman for this important clarification and for his hard work in developing this important legislation.

Mr. President, I rise today to speak on the pension reform legislation we have been working on for months. Many have said that the policy goal of any major reform to the current pension system is to ensure that the defined benefit system remains a viable option for companies and that employers keep the retirement promises they have made to their employees. In these discussions, one often hears about the proposed new rules and mandates concerning funding rules or asset and liability valuations. Given that the pension statute has not received a major overhaul since the 1970s, new rules are certainly necessary to ensure that past and present employees and the American taxpayer are protected from financial loss.

Nevertheless, what is often left unsaid in our discussions is the fact that the defined benefit system is a voluntary, not a mandatory, system. While rules and mandates exist for companies that choose to participate in the defined benefit system, no such rules or mandates exist requiring companies to participate. Thus, if strengthening the defined benefit system is the basic premise behind this proposed legislation, it is critical that we ask ourselves if the proposed rules and mandates might have the unintended consequence of driving companies out of the voluntary defined benefit system once and for all.

Alternatives to the voluntary defined benefit system do exist. For many companies and employees, they are good alternatives, such as the defined contribution system and its 401(k)s. However, the personal savings rate of

Americans remains one of the lowest among the industrialized nations, and the average balances in 401(k) accounts are quite modest. There is no question that without defined benefit plans, fewer Americans would be able to retire comfortably. Further, the disappearance of defined benefit plans, including hybrid defined benefit plans, could very well result in increased pressure on Federal entitlement and income maintenance programs, not to mention an increase in old-age poverty.

Given these troubling facts, the value of defined benefit plans to many American families is clear. Sadly, we have seen a decline in defined benefit plan sponsorship, and these are perilous times for the defined benefit system. Employers are leaving the system for many reasons. Among these are uncertainty about how future pension liabilities will be measured, new pension funding rules that are complicated and unpredictable, the worry over new and more onerous pension funding and premium requirements, upcoming changes to the pension accounting rules, and, of course, legal questions regarding hybrid pension plans.

I appreciate the efforts of my Senate colleagues to craft meaningful defined benefit pension reform legislation. The proposed legislation, however, will have the unintended consequence of driving away company after company from the defined benefit system and further exacerbate the looming deficit of the Pension Benefit Guarantee Corporation, PBGC, thereby passing an unnecessary financial risk on to the American taxpayer. Rather than strengthening the defined benefit system, this proposed legislation contains elements that could negatively affect the retirement security of the current 44 million participants in defined benefit plans. Further, workers coming behind them are at risk if the legislation is not done in a way that encourages plan sponsors to stay in the voluntary defined benefit plan system. I wish to highlight a few of the provisions contained in the proposed legislation I believe will lead employers to opt out of the voluntary defined benefit system.

To plan business investment and operations, employers must be able to anticipate required pension contributions several years into the future. Required contributions cannot be too volatile; otherwise, they will be too difficult to accommodate in cash flow operations of the business. To determine the amount of money an employer must contribute to its pension plan, assets in the plan are compared to the liabilities of the plan. Under the bill, plans would determine the amount of their funding liability using an interest rate averaged over only a 12-month period and asset values also averaged over just a 12-month period. This will make it very difficult for businesses to plan and will force them to set aside assets in the event they are needed for liabilities due to spikes in interest rates. The alternative is to force companies to shift assets out of the equity markets and into fixed income markets which could hike costs and discourage plan sponsorship. This is bad policy.

The proposed legislation also sets a new target liability--100 percent of liabilities promised under the plan. This is a significant increase from the current law target--90 percent. If companies must meet this new target too quickly, sharp upticks in contributions may be required for many companies that are currently considered well-funded. Because the new interest rates will adjust liabilities for some companies, companies that are currently at their maximum funding level could be facing very large contributions. Since obligations are due over a very long period in many instances, these contributions will be unnecessary. Pensions could be frozen, other benefits could be frozen, costs of goods and services could increase, and jobs could be lost as a result. The 3-year phase-in of the new target is insufficient to avoid harmful consequences to American workers and the economy.

Another very troubling provision of the proposed legislation relates to credit ratings. A company's credit rating, determined by private ratings agencies and not the Federal Government, should not determine a pension plan's liability. The credit rating of a company does not determine the funded status of a plan. A company can have a below investment grade credit rating and pose absolutely no risk to the PBGC. It serves no policy goal to impose new liabilities on a company because it is financially weak. That will simply make it more difficult for a company to recover, leading to potentially lower credit ratings, and could result in death-spirals and plan terminations that the legislation seeks to avoid. Furthermore, the credit rating provision would introduce a whole new concept--credit rating of private companies by the Government. If an at-risk liability is to be imposed, it should be based solely on the funded status of the plan.

A final concern I wish to raise relates to one of the most urgent crises in retirement security--clarifying the outstanding issues regarding hybrid pension plans. Hybrid defined benefit pension plans such as cash balance and pension equity plans were developed to meet the needs of our highly mobile workforce by combining the features of both traditional defined benefit plans and defined contribution plans, such as 401(k) and other individual account plans. Traditional defined benefit plans are most effective for employees with long careers with only one employer. Yet, according to the Bureau of Labor Statistics, very few employees are spending a full career with just one company. Today's workers need a pension benefit that is portable and that will produce meaningful benefits, even if they don't stay with one employer for their entire career. In light of these facts, nearly 30 percent of the Nation's largest companies with defined benefit plans have moved to a cash balance or other hybrid plan design. As of 2003, the PBGC reported that there are estimated to be between 1,200 and 1,500 of these plans providing benefits to around 8 million Americans and their families.

Employees know that cash balance and other hybrid plans contain many of the positive features of traditional defined benefit plans such as the safety of an employer-funded, PBGC-insured benefit where the company bears the risk of the investment, while at the same time providing defined contribution plan features such as individual account balances, portability, and a more even benefit accrual pattern. Many people who criticize hybrid plans do not realize that they are defined benefit plans, and as such, they provide a tremendous benefit to Americans, helping them achieve better retirement security.

Hybrid plans also provide greater benefits than traditional pensions for the majority of employees. This is because hybrid plans accrue benefits ratably, rather than toward the end of a long career, which is typical in a traditional pension plan design. For the minority of workers for whom a conversion from a traditional defined benefit plan to a hybrid plan design may result in future benefits that could be less generous than under the old plan, employers have employed a variety of transition assistance techniques to boost their benefit formulas. And of course, benefits earned by employees for service they have already put in are fully protected under the law.

Despite the value that hybrid plans provide to workers, current legal risks threaten their continued existence. One court case has placed all hybrid pension plans, both cash balance and pension equity plans, into doubt. Three other courts have found to the contrary, that hybrid pension plans do not violate the age act and are permissible under law. Yet it is this one single decision on which opponents of the hybrid pension plan hang their arguments. To preserve the retirement security of millions of Americans, it is essential that Congress comprehensively clarify for existing and future plans that the design of hybrid plans is not age discriminatory.

In Cooper v. IBM--274 F. Supp. 2d 1010, S.D. Ill. 2003--a District Court judge held, in the face of legal authority to the contrary, that cash balance and pension equity plans are age discriminatory. This decision was based on the fact that younger workers have more time to earn compound interest on their pension benefit than older workers. Compound interest is a feature of all defined contribution plans and of all savings plans. The logic behind declaring compound interest age discriminatory in defined benefit plans is seriously faulty and would nullify many longstanding defined benefit pension plan designs, including contributory defined benefit plans common in

the Federal, State, and local government sectors.

As a result of the Cooper decision, every hybrid pension plan sponsor today finds itself in potential financial and legal jeopardy. It is a pity that we have come to this state. I say this because policymakers should be working to create an environment that promotes hybrid plans-- not subjects them to greater risk. I had hoped that Congress would have responded to the Cooper case by providing legislative certainty and clarity for hybrid pension plans, both retrospectively and prospectively, to prevent widespread abandonment of these programs by employers.

I do not want my colleagues to think that I have not heard the critics of hybrid plans. I have. However, I believe that the majority of the criticisms of the plans are unfair. Let me review some of these criticisms and rebut them.

Some critics of hybrid plans have claimed that the plans are discriminatory on the basis of age. It is true that there has been one single court case that found that compound interest is age discriminatory in the hybrid plan context. As I said, three other courts have found to the contrary, yet critics give credence to this odd case. Hybrid plans provide the same or greater wage and interest credits for older participants than for young participants. Because older workers under these plans are treated the same as or better than similarly situated younger workers, the plans cannot possibly be in violation of the Age Discrimination in Employment Act, ADEA.

Others have criticized the ``wear away'' or benefit plateau that occurs in some hybrid plans. This has generated numerous questions and concerns through the congressional review of the hybrid plan issue. It is important to understand that parallel rules in ERISA and the Internal Revenue Code protect all benefits that an employee has already earned for service, to date. Thus, despite assertions to the contrary, existing benefits are not reduced in a hybrid conversion. ``Wear away'' is the term used for the benefit plateau effect that some employees can experience in conjunction with a cash balance conversion.

Still others criticize hybrid plan conversions because they frequently eliminate an early retirement subsidy, although they do so only prospectively. Some have complained about allowing employers to eliminate any benefits in their retirement plans. My own feeling is that employers must be able to maintain their flexibility to eliminate early retirement subsidies, but only on a prospective basis, as is the case under current law.

Early retirement subsidies are a better alternative to layoffs in many workplaces and they can help a company to manage its workforce. On the other hand, if an employer's right to eliminate early retirement subsidies on a prospective basis is not protected, no employer would ever adopt such an early retirement program in the first place. It makes no sense for employers to encourage highly productive workers to take retirement in their fifties by paying a premium for them to leave the workforce. While current law protects any subsidy that employees have already earned for their service to date, it allows employers to remove those incentives from their plans going forward.

The conclusion that all hybrid plan designs are inherently age discriminatory also raises the question why the Internal Revenue Service, IRS, issued determination letters for many years specifically permitting the hybrid designs and why it issued proposed regulations providing that the cash balance plan design is not inherently age discriminatory. The Cooper decision completely ignored this regulatory history. Of even more interest is that the Cooper decision disregarded the legislative history of the pension age discrimination laws adopted in 1986. That conference report made it clear that intent of Congress was limited to prohibiting the practice of ceasing pension accruals once participants reached normal retirement age, i.e. the so-called post-65 pension accrual.

The Cooper decision emboldened cash balance critics to demand an appropriations rider that prohibited the Treasury Department from finalizing its age regulations addressing hybrid plan designs and conversions. At that time, Congress directed the Treasury Department to publish a legislative proposal regarding conversions from traditional to cash balance plans. In the legislative history, the conference report did state that ``[t]he purpose of this prohibition is not to call into question the validity of hybrid plan designs (cash balance and pension equity). The purpose of the prohibition is to preserve the status quo with respect to conversions through the entirety of fiscal year 2004 while the applicable committees of jurisdiction review the Treasury Department's legislative proposals.''

While the Cooper case is a rogue decision, there is significant authority to the contrary concluding that hybrid plans are age- appropriate. Unfortunately, the Cooper case has led to what are called copycat lawsuits both in the Southern District of Illinois and elsewhere in the Nation. The Cooper case has also had a chilling effect on the plan sponsor community. Concerns over potential damages from these cases are causing CEOs and CFOs to have very sober discussions regarding the future of their plans. There seems to be a slow, but steady, domino effect of freezing hybrid pension plans as a result of concerns over potential liability from fallout of the Cooper case. This is occurring despite a general belief that the Cooper case could be overturned on appeal. I fear that if Congress fails to bless the hybrid pension plan design in short order, these voluntary plans could all become frozen.

If we can conclude that the design of these plans is consistent with the ADEA, but the conversions to hybrid plans raise questions, why can't we legislate in this area to simply bless the hybrid plan design? Clarifying only the legality of prospective plans does not address any of these problems; it does nothing to eliminate the potential for devastating suits directed at the prior operation of hybrid plans. Retroactive legislation is needed because the consequences of inaction or prospective-only legislation could be disastrous. If retroactive legislation is not adopted and the Cooper case is decided adversely on appeal, the liabilities of hybrid plans would triple if companies are forced to pay the enormous windfalls created under Cooper. This would impose such enormous costs on employers that large numbers of them would have no choice but to eliminate future benefits in their defined benefit plans. Many companies will not be able to absorb those additional liabilities, causing business declines and bankruptcies, as well as widespread damage to the economy.

Many have ignored the taxpayer interest in the outcome of retroactivity legislation. As we contemplate the precarious state of the PBGC, it is important to consider the potential impact of failing to provide retroactive relief on that troubled agency's solvency. Conservative estimates of the national liability attributable to the Cooper theory of age discrimination are well in excess of $100 billion. Many employers would undoubtedly be forced into distress plan terminations by this liability, shifting the liability to the PBGC. Other employers would simply terminate their plans, resulting in a precipitous contraction of the PBGC's premium base. The PBGC reports that for 2004, 24.6 percent of the participants in covered single employer plans are in hybrid plans; this means that such plans generate almost a quarter of the single-employer flat-rate premiums. Both developments would make a taxpayer bailout of PBGC far more likely.

I must also raise an additional issue regarding the hybrid pension plan provisions of the bill before us. As you know, it is the cash balance pension design that has been at the center of the congressional discussion about the need to provide legislative clarity for hybrid plans. Yet, another leading variety of hybrid plan, called the pension equity plan, is in equal need of congressional attention. In a pension equity plan, employers provide credits for each year of employee service and these credits are multiplied by an employee's final pay to produce a lump sum figure. Typically, the benefit credits given to employees increase with age and/or years of service, making this design an attractive one for older and long-service workers. Dozens of large employers around the country offer pension equity plans, including a

number of very large employers in my state.

Pension equity plan sponsors and participants face the same risks and are in need of the same legislative clarification as cash balance plans--that their basic design is not, in fact, illegal and does, in fact, satisfy our age discrimination rules. To achieve this objective, the legislative provision clarifying the age discrimination rules for hybrid plans must specifically reference pension equity plans in the statutory language. The legislation before us does not do this. Rather, it leaves the issue of whether pension equity plans receive the same beneficial clarification as cash balance plans up to the Treasury Department in later administrative guidance. This will simply prolong the legal uncertainty that is driving many employers to consider ending their pension equity plans altogether. I believe this must be remedied--that we must give pension equity plans the same explicit statutory treatment as cash balance plans. I hope that, along with applying the clarification of the hybrid designs to existing plans under current law, we can explicitly address pension equity plans as we move toward conference on this pension bill.

I likewise hope that we can make several other refinements to the bill's hybrid provisions so that these provisions more appropriately address some of the unique issues surrounding pension equity plans. For example, the bill currently has a requirement that hybrid plans pay certain minimum interest rates. Yet, unlike in cash balance plans, the benefits in pension equity plans grow with pay increases, as traditional defined benefit plans do, rather than with interest, so this requirement really does not make sense in the pension equity context. In addition, conversions to pension equity plans are typically handled differently than conversions to cash balance plans, and this needs to be acknowledged in the legislation. Finally, just as there are unique differences between cash-balance and pension equity hybrid plans that we must acknowledge, we must also recognize and support unique differences among cash-balance and pension equity plans respectively. No two plans are identical, nor should they be. Congress should not be so overly prescriptive in the rules for hybrid pension plans that it prohibits sponsors from adding unique features that may better serve their employees in retirement. I hope that during the conference on this bill, for example, we can recognize that there are cash balance plans that have returns based on equity indices. Such plans may provide returns that do not fall within the interest rate corridor established in this bill because their returns may be greater or lesser than required under this bill for the plan to be considered a qualified cash balance plan. While I do believe it is good policy for these plans to have a principal protection feature, to ensure workers are guaranteed upon retirement to receive the investment credits they have earned, I also believe that we should not discourage plans which provide participants the opportunity to receive higher returns that are attainable through the equity markets.

I would like to finish my statement by thanking the chairmen and ranking members for their work on the prospective hybrid language. While the bill does not address existing plans, serious discussions have begun to do so. It is imperative that these discussions continue so that we can clarify the validity of the hybrid pension designs, both cash-balance and pension equity, under current law.

Hybrid defined benefit plans play an invaluable role in delivering retirement security to millions of Americans and their families. To prevent total abandonment of hybrid plans by employers and the resulting harm to employees, I hope Congress will quickly provide legislative certainty and clarity for existing cash balance and other hybrid pension plans such as pension equity plans. Waiting for the Cooper case to be resolved on appeal is not the answer; as time goes by, more companies are reacting to the current uncertainty and potential liability by freezing or terminating their plans. At the same time, more and more companies are being dragged into copycat litigation. The losers in this terrible failure to act are my constituents in North Carolina and workers across America who will lose the opportunity to be covered by an employer-provided pension plan. Failure to resolve the status of hybrid defined benefit plans comprehensively is a betrayal of employers who are trying to do the right thing by their employees and the millions of workers who are counting on a pension for their retirement.

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

Mr. President, I ask unanimous consent to address the Senate as in morning business.

Mr. President, I rise today to honor our Nation's veterans for their service and their sacrifice. We will celebrate Veterans Day tomorrow, and I am proud of the improvements we have made in providing benefits and care to our country's heroes.

In the past 10 years, since I first came to Congress, the veterans budget has increased by 77 percent, an annual average increase of over 7 percent. The VA's health care budget has increased over 85 percent during this time. We have also enacted a fix to the concurrent receipt problem and made groundbreaking progress with computerized health records at the Veterans Department. I am proud of these efforts, but I certainly understand the need to do more to stay ahead of the curve.

I also want to detail the recent growth in the veterans population in North Carolina. Our State's veteran population has increased by over 100,000, to 780,000 veterans since 1980.

This growth rate comes at a time when the number of veterans in the United States is decreasing. Veterans are moving to the State because many of them were stationed there while on active duty, and they have moved back because of the quality of life in North Carolina.

I have two bills I have introduced today that I believe will improve the services we currently provide to our veterans. The first is the Services to Prevent Veterans Homelessness Act which makes grants to nonprofit and faith-based organizations to provide services to extremely low-income veterans who are in permanent housing. The goal is to keep them from becoming homeless. The services provided for in this bill--from vocational counseling and personal finance planning to health and rehabilitation--were designed to address the root causes of homelessness.

The VA estimates on any given night as many as 200,000 veterans are homeless and as many as 400,000 are homeless at some point during the year. We also know that 45 percent of the homeless veterans have a mental illness, and 50 percent have some sort of addiction.

The cost of this bill is $25 million annually, a small sum to help the poorest of our veterans. In North Carolina alone, over 43,000 veterans live below the poverty line. This bill would allow the VA to partner with nonprofits in order to help poor veterans escape the root causes of homelessness. I urge the Senate to consider whether we are doing enough on this issue. More importantly, I invite my colleagues to study this bill and to become a cosponsor.

Next, I introduced the Veterans Outreach Improvement Act which authorizes the Secretary of Veterans Affairs to partner with State and local governments for outreach to veterans. This bill provides grants to State veterans agencies and county veterans service offices to help them with outreach and claims development and to provide education and training of officers. The bill would also authorize $25 million annually for this outreach program.

County veterans service officers are charged with assisting veterans and their dependents in seeking benefits as a supplement to the work being performed by the Department of Veterans Affairs. They are overseen by the Division of Veterans Affairs in North Carolina and receive accreditation from organizations approved by the Secretary of Veterans Affairs. Many veterans need assistance in filing claims in order to make sure that the claim is accurate and complete. County veterans service officers and officials from State veterans agencies are often the officials who can actually sit down face to face with a veteran to develop a claim and to send it to the VA. This bill makes the VA a partner in that outreach process.

On the eve of Veterans Day this year, I join my colleagues in honoring veterans across this country for their heroic service to our Nation.

Mr. President, I rise today to honor our Nation's veterans for their service and their sacrifice. We will celebrate Veterans Day tomorrow, and I am proud of the improvements we have made in providing benefits and care to our country's heroes.

In the past 10 years, since I first came to Congress, the veterans budget has increased by 77 percent, an annual average increase of over 7 percent. The VA's health care budget has increased over 85 percent during this time. We have also enacted a fix to the concurrent receipt problem and made groundbreaking progress with computerized health records at the Veterans Department. I am proud of these efforts, but I certainly understand the need to do more to stay ahead of the curve.

I also want to detail the recent growth in the veterans population in North Carolina. Our State's veteran population has increased by over 100,000, to 780,000 veterans since 1980.

This growth rate comes at a time when the number of veterans in the United States is decreasing. Veterans are moving to the State because many of them were stationed there while on active duty, and they have moved back because of the quality of life in North Carolina.

I have two bills I have introduced today that I believe will improve the services we currently provide to our veterans. The first is the Services to Prevent Veterans Homelessness Act which makes grants to nonprofit and faith-based organizations to provide services to extremely low-income veterans who are in permanent housing. The goal is to keep them from becoming homeless. The services provided for in this bill--from vocational counseling and personal finance planning to health and rehabilitation--were designed to address the root causes of homelessness.

The VA estimates on any given night as many as 200,000 veterans are homeless and as many as 400,000 are homeless at some point during the year. We also know that 45 percent of the homeless veterans have a mental illness, and 50 percent have some sort of addiction.

The cost of this bill is $25 million annually, a small sum to help the poorest of our veterans. In North Carolina alone, over 43,000 veterans live below the poverty line. This bill would allow the VA to partner with nonprofits in order to help poor veterans escape the root causes of homelessness. I urge the Senate to consider whether we are doing enough on this issue. More importantly, I invite my colleagues to study this bill and to become a cosponsor.

Next, I introduced the Veterans Outreach Improvement Act which authorizes the Secretary of Veterans Affairs to partner with State and local governments for outreach to veterans. This bill provides grants to State veterans agencies and county veterans service offices to help them with outreach and claims development and to provide education and training of officers. The bill would also authorize $25 million annually for this outreach program.

County veterans service officers are charged with assisting veterans and their dependents in seeking benefits as a supplement to the work being performed by the Department of Veterans Affairs. They are overseen by the Division of Veterans Affairs in North Carolina and receive accreditation from organizations approved by the Secretary of Veterans Affairs. Many veterans need assistance in filing claims in order to make sure that the claim is accurate and complete. County veterans service officers and officials from State veterans agencies are often the officials who can actually sit down face to face with a veteran to develop a claim and to send it to the VA. This bill makes the VA a partner in that outreach process.

On the eve of Veterans Day this year, I join my colleagues in honoring veterans across this country for their heroic service to our Nation.

Mr. President, I thank my colleague from Colorado. It is seldom we have an opportunity to effect a change for a specific individual. We have an opportunity to do that today for an individual we will never meet, an individual who might be placed in the same situation as Candace. In fact, in 2001, Candace Newmaker, the granddaughter of David and Mary Davis of Vale, NC, was killed. She was killed during a so-called rebirthing therapy session. This dangerous practice involves therapists, as my colleague said, wrapping sheets and towels and pillows around a patient who almost always is a young child, who is curled in a fetal position. The therapists attempt to recreate the child's birth by physically restraining and pushing against the child, urging the child to escape.

The stories are horrendous. Rebirthing has resulted in numerous injuries as well as the suffocation and death of five children. If there was ever a time that called out for us to act on a resolution like this, this is it; to reach out to States and say: Do what North Carolina did, do what Colorado did--outlaw this practice.

In 2003, North Carolina did outlaw this unsafe therapy, largely due to the Davises' efforts. Today, Senator Salazar and I urge other States to do exactly that. The Candace Newmaker resolution encourages States to examine the rebirthing technique and enact laws prohibiting this dangerous practice. Organizations such as the American Psychological Association fully support the ban of this technique. The possible loss of another child to this harmful therapy should be enough reason for the Senate to pass this resolution; if we can affect one child with our action, a child we have not met who might be exposed to this, we should do so.

The House of Representatives, led by my colleague, Representative Sue Myrick, passed a similar resolution on December 17, 2002. The Davises are here today, and I thank them personally for their passion and for their commitment to have rebirthing outlawed. Their dedication to this cause is a reflection of the amount of love and loss they feel toward Candace.

Mr. President, I proudly join my colleague, Senator Salazar, to raise awareness of this resolution and to urge our colleagues in this body for a quick consideration.

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

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

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

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

Mr. President, I rise to commend my colleague from Iowa. My colleague recognizes the need for this country to prepare for a possible influenza pandemic. I am not here to be a historian, to determine what has happened in the past on Defense appropriations bills. I will share that disease surveillance is not something new. It occurs day in and day out. The Centers for Disease Control is an active participant in the surveillance efforts for a potential global outbreak of avian flu. Post-9/11, this country became not only concerned but began actively preparing for consequences of chemical, biological, and radiological threats that could be used by terrorists.

We should pause and remind ourselves these potential acts can be deliberate, accidental, or natural. Clearly, the threat of avian flu is a natural occurrence. The Centers for Disease Control, the World Health Organization, all participate in preventing the spread of avian flu and work to make us better understand when that threat may affect us here at home.

The Senator from Iowa targets a number of things that are very appropriate and important: stockpiles, global surveillance, a national investment in domestic vaccine infrastructure, additional grant moneys for local public health agencies. But clearly, the chairman of the Appropriations Committee is right; the majority of these need to be considered in and appropriated from the committees that have jurisdiction over the relevant agencies--the National Institutes of Health, the Centers for Disease Control.

We are all alarmed about any of these threats, whether it is deliberate, accidental, or natural. This year the Subcommittee on Bioterrorism and Public Preparedness has held six hearings and/or roundtables on this subject. We have examined the infrastructure we currently have to research, develop, and approve countermeasures against all of these threats. These countermeasures can be antivirals, as the Senator spoke of, for avian flu. They could be vaccines, as we have already purchased with BioShield, for anthrax for example. We are committed to ensure that we have the right kinds of countermeasures to protect the American public.

But we have a fiduciary responsibility to the American people, too. That is to make sure that we do not invest billions and billions and billions of dollars into a stockpile that, in fact, has a life expectancy shorter than the threat.

I have come to plead with my colleagues, let's approach this in a comprehensive way. Let's, in fact, put together a plan that addresses not only avian flu but all of those chemical, biological, radiological threats that exist today. I remind you of the threat from anthrax and smallpox we have debated in this building before this date. I remind my colleagues that we have currently invested some $800 million for anthrax vaccines for the national stockpile. We have this week received a briefing from the Secretary of Health and Human Services, as Senator Harkin said, and the Director of the CDC and the head of National Institute for Allergies and Infectious Diseases during which they talked about their initial approach to the threat of avian flu. I stress the word ``initial'' because it is yet to have the input of this body, of the committees, and the subcommittees that have held hearings, that have met with representatives from industry, that understand the deficiencies in our infrastructure to confront this and other similar threats.

Vaccine shortages are not just an infrastructure deficiency for avian flu. There is a deficiency across the board for vaccines in this country, in large part because of the policies we have adopted. I suggest this is not an issue we can just throw money at. This is an

issue that needs a comprehensive plan and approach as to how we set up a structure and mechanism so we are not on this floor in the future talking about further deficiencies. In many cases, everything Senator Harkin lists will be components of comprehensive legislation that we plan to deal with how much and what we should stockpile. It will deal with global surveillance and whether we can do it better than we do today. It will deal with the vaccine infrastructure and our reliance on having the manufacturing, research, and development capabilities on the shores of the United States and not have us reliant on a company that might have a facility outside of the United States.

Once again, I urge my colleagues, let's do it in a comprehensive way so we are prepared to move forward in an expedited process that would answer all these questions before we adjourn this calendar year.

I am happy to yield.

Will the Senator from Iowa allow me to yield to the minority leader?

Mr. President, let me try to connect the logic with the reality, that if the Senator permits me, I will sit down with him next week. I believe I can show him at least the initial language that puts this altogether in a comprehensive way and in fact addresses not only the deliberate and accidental biological, chemical, and radiological threats but also includes the natural threat that avian flu clearly emanates from. I believe there is a new structure, not an existing structure, within the framework that will work, and if the Senator will work with me next week, I think his comfort level would be as great as mine today that we can address this threat in a comprehensive way, and that is a pledge that we will do it expeditiously, this year.

I would be happy to yield time to the minority leader.

Does the Senator need time before 2:30?

If the minority leader will allow me a few more minutes, I will conclude my comments as they relate to the amendment by the Senator from Iowa.

Let me say, if I can, for the purposes of what the Senator raised with me, there is a willingness on the part of Members on both sides of the aisle that this body move expeditiously to address this threat. I don't believe the timing is going to be a problem as we move through this year. I think it is a question of whether we sufficiently construct a mechanism to assure us that we have done the right thing; that just to dump money into any system that might be deficient today would be a mistake. I truly believe that with the support on both sides of the aisle and both bodies of leadership, this is an issue we can sufficiently resolve and we can do it in an expeditious way.

With that, I yield back my time.

Mr. President, we have several minutes remaining before we move on. I take this opportunity to assure the minority leader that I was in the same briefing. I think all Members were somewhat shocked at some of the things we heard. This is a Member who was not shocked because I have been charged as a subcommittee chairman since the beginning of the year with looking at all the aspects of this. I read daily the international press reports of how many new cases of avian flu, in what country, how many humans have contracted it from an animal source, how many humans potentially have contracted it from another human. The reality is this is something that from a committee standpoint we keep up with. We understand the sense of urgency. I plead with my colleagues that the answer is not to throw money at the threat. It is to have a comprehensive plan where research and the investment for that research pays off in countermeasures to protect the American people.

Senator Harkin described very well that what is H5N1 avian flu in most of Southeast Asia today, by the time it travels, whether it is by humans or potentially by wild birds, the mutations that may take place might make irrelevant any vaccine that is produced today and antivirals that exist today, used to treat it might have potentially less than a satisfactory effect. Without a system that invests in research and development, how in the world do we expect new antiviral drugs and new vaccines to be produced?

To suggest that we put all our eggs into this limited approach--let's put this money up, and let's buy whatever is available on the marketplace--is comforting if, in fact, we believe this is a threat for tomorrow or next week or next month. The reality is this pandemic may occur next year or 3 years or 5 years down the road, and if we want to protect the American people, if we want to do our job, then you have to set up a comprehensive mechanism for that research, that development, and whatever product is needed to address the threat we may face.

Again, I commend those Members who have come to the floor and proposed the appropriations for this item. I disagree that this is the appropriate bill. I disagree that you should appropriate this much money or any money without a comprehensive plan as to how we produce countermeasures that continue past this one appropriations.

I pledge to the minority leader and to Senator Harkin, but more importantly to every Member of this body, to work with them aggressively over the next 60 days to not only produce legislation out of the subcommittee, but to work with my chairman, Chairman Enzi, and to work with both leaders and all 100 Senators to make sure this legislation is passed in this body and by the House of Representatives, and signed into law by this President. I believe that it is that urgent. But, there is also a requirement for us to do it right, in fact, that is the single most important factor that we should consider.

I yield the floor.

Mr. President, I rise today, like my colleague who spoke just before me, to support the nomination of John Roberts to be the Chief Justice of the U.S. Supreme Court. To those who know me, to those who have heard me talk on this subject, this is no great surprise. But voting on a Supreme Court nomination is a very rare task. It is more historic now, as the Senate will consider a nominee for the top job of the Court.

The question I ask today is, Why should America care about this debate? This debate is more significant than a lifetime appointment of Chief Justice of the Supreme Court.

This debate is more significant than the influence that one single individual brings who is chosen. This debate is about future decisions that will affect the lives of every American, that will affect our children and our children's children. From our civil liberties, to property rights, to questions of life and death, to safety in communities, to the very basic freedoms, there is no area in our daily lives that is not somehow affected by the judicial decisions of the U.S. Supreme Court. The decisions made by the Court today will have a lasting effect long after we have gone from this institution. It is essential, absolutely essential, that we confirm not only competent, impartial judges, but those who are the very brightest and those who are good citizens and understand the task for which they have been nominated and confirmed.

Over the course of the last several weeks we have all had the opportunity to hear from legal experts, from political analysts, about Judge Roberts and the chances of the success of his nomination and his confirmation. We have had a process of very detailed hearings where our colleagues, many of whom are lawyers, have asked the most appropriate questions, with a lot of thought, a lot of time to deliver the questions, and we have seen the response of a brilliant lawyer, with no notes, quote case law from years past that appropriately answered the questions that did not affect future cases the Court might hear.

Now, I am not a lawyer and perhaps I do not judge Judge Roberts' legal background the same way lawyers might judge it, but I do understand people. I understand when I meet somebody who is a good person. I have met Judge Roberts. This is a good person. This is an individual in whom America can be proud when they refer to him as Chief Justice.

A couple weeks ago I had the opportunity to have Judge Roberts in my office. We talked about his background, his life experiences, we talked about our families. I did not quiz him about legal precedent or court rulings. I did not present him with hypothetical cases or his position on hot topics of the day. That, quite frankly, was not the ground I was focused to go on. Personally, as a husband and a father, I wanted to know where Judge Roberts truly stood and if he understood the job he has been asked to do. I wanted to know if he understood the responsibilities not just as a lawyer, not just as a Justice, but as a husband and as a father, and the implications of the decisions he would rule on and how they would affect not just his family but in a real way the people of North Carolina.

As Senators, we are all responsible for constituencies. I am responsible for more than 8\1/2\ million individuals in North Carolina, and I wanted to know, quite frankly, if Judge Roberts intends to preserve our Nation's constitutional principles by interpreting law, not by making law. I am proud today to tell you, based upon the answers he gave to me in his testimony in front of the Judiciary Committee, I am confident he will do just that--interpret the law, not write the law. Judge Roberts, as every person has heard, has the academic and the professional credentials to serve not only as a Supreme Court Justice but as Chief Justice.

There is something that concerns me today. It concerns me, and it should concern the American people: This vote will not be unanimous. This vote will be far from unanimous based upon the reports from Senators. Why? Politics. I am not sure it has ever permeated the process to the degree it has in this. As we stand here today, with one of the brightest nominees, ready to confirm, some in this institution are already suggesting the next nominee has no chance. There is not a person who has been nominated. There is a group of names that has been talked about. I might remind Senators that Judge Roberts was never talked about in the group that was purported to come up in the President's first nomination. Yet some suggest we are going to move the bar even farther for the next nominee who comes through.

The divisiveness has to stop in this institution. We choose the best and the brightest to serve this country. If we consistently move that bar, if we consistently dig to find things that no other Congress has looked for, if we are not careful, no one will want that job. If we are not careful, the best and the brightest legal minds in this country who would serve on the bench and serve with distinction, regardless of the party they are from, when they get that call, will say, Mr. President, I want to pass. I can't put my family through it. I can't put myself through it. The risk of doing it is too great to everything around me, to make a commitment to serve my country.

I ask all of us, what message are we sending to our children when the best and the brightest pass, when they elect not to go through the process we in this body have control of?

This is a defining time for the Senate. This will determine who is willing in the future to actually serve their country and to serve in one of the single most important areas, the U.S. Supreme Court.

I am confident Judge Roberts holds the academic credentials, he holds the professional credentials but, more importantly, I am confident today that Judge Roberts is a good man. He deserves the support of every Member of the Senate to become the Chief Justice of the U.S. Supreme Court.

Mr. President, I yield the floor.

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Wednesday, September 28, 2005, at 10 a.m., on S. 1114--Professional Athletes Drug Testing bill and S. 1334--Professional Sports Integrity and Accountability Act, in Hart 216.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Wednesday, September 28, at 11:30 a.m. to consider pending calendar business.

Agenda

Agenda Item 3: S. 166--To amend the Oregon Resource Conservation Act of 1996 to reauthorize the participation of the Bureau of Reclamation in the Deschutes River Conservancy, and for other purposes.

Agenda Item 4: S. 206--To designate the Ice Age Floods National Geologic Trail, and for other purposes.

Agenda Item 5: S. 213--To direct the Secretary of the Interior to convey certain Federal land to Rio Arriba County, NM.

Agenda Item 6: S. 242--To establish four memorials to the Space Shuttle Columbia in the State of Texas.

Agenda Item 7: S. 251--To authorize the Secretary of the Interior, acting through the Bureau of Reclamation, to conduct a water resource feasibility study for the Little Butte/Bear Creek Sub-basins in Oregon.

Agenda Item 8: S. 592--To extend the contract for the Glendo Unit of the Missouri River Basin Project in the State of Wyoming.

Agenda Item 9: S. 652--To provide financial assistance for the rehabilitation of the Benjamin Franklin National Memorial in Philadelphia, PA, and the development of an exhibit to commemorate the 300th anniversary of the birth of Benjamin Franklin.

Agenda Item 11: S. 761--To rename the Snake River Birds of Prey National Conservation Area in the State of Idaho as the Morley Nelson Snake River Birds of Prey National Conservation Area in honor of the late Morley Nelson, an international authority on birds of prey, who was instrumental in the establishment of this National Conservation Area, and for other purposes.

Agenda Item 12: S. 777--To designate Catoctin Mountain Park in the State of Maryland as the ``Catoctin Mountain National Recreation Area,'' and for other purposes.

Agenda Item 13: S. 819--To authorize the Secretary of the Interior to reallocate costs of the Pactola Dam and Reservoir, SD, to reflect increased demands for municipal, industrial, and fish and wildlife purposes.

Agenda Item 14: S. 891--To extend the water service contract for the Ainsworth Unit, Sandhills Division, Pick-Sloan Missouri Basin Program,

Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet Wednesday, September 28, 2005, at 9:30 a.m. to conduct a hearing to discuss the role of science in environmental policy making.

Mr. President I ask unanimous consent that the Committee on Finance be authorized to meet during the session on Wednesday, September 28, 2005, at 10 a.m., to hear testimony on ``Hurricane Katrina: Community Rebuilding Needs and Effectiveness of Past Proposals.''

Mr. President, I ask unanimous consent that the Committee on

Foreign Relations be authorized to meet during the session of the Senate on Wednesday, September 28, 2005, at 9:30 a.m. to hold a hearing on Darfur Revisited: The International Response.

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet on Wednesday, September 28, 2005, at 9:30 a.m. for a hearing titled, ``Recovering from Hurricane Katrina: Responding to the Immediate Needs of Its Victims.''

Mr. President, I ask unanimous consent that the Committee Indian Affairs be authorized to meet on Wednesday, September 28, 2005, at 2:30 p.m. in Room 485 of the Russell Senate Office Building to conduct an oversight hearing on Indian Housing.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on ``Protecting Copyright and Innovation in a Post-Grokster World'' on Wednesday, September 28, 2005 at 9:30 a.m. in the Dirksen Senate Office Building Room 226.

Witness List

Panel I: The Honorable Mary Beth Peters, U.S. Register of Copyrights, Copyright Office, Washington, DC; and the Honorable Debra Wong Yang, U.S. Attorney for the Central District of California and Chair of the Attorney General's Advisory Committee on Cyber/Intellectual Property Subcommittee, Los Angeles, CA.

Panel II: Marty Roe, Lead Singer, Diamond Rio, Nashville, TN; Cary Sherman, President, Recording Industry Association of America, Washington, DC; Gary Shapiro, President and Chief Executive Officer, Consumer Electronics Association, Arlington, VA; Mark Lemley, William H. Neukom, Professor of Law, Stanford University Law School and Director Stanford Program in Law, Science and Technology Stanford, CA; Ali Aydar, Chief Operating Officer, SNOCAP, San Francisco, CA; and Sam Yagan, President, MetaMachine, Inc. (developer of eDonkey and Overnet) New York, NY.

Mr. President, I ask unanimous consent that the Subcommittee on Public Lands and Forests be authorized to meet during the session of the Senate on Wednesday, September 28, at 2:30 p.m.

The purpose of the hearings is to review the Grazing programs of the Bureau of Land Management and the Forest Service, including proposed changes to grazing regulations, and the status of grazing regulations, and the status of grazing permit renewals, monitoring programs and allotment restocking plans.

Mr. President, I rise today to discuss a North Carolinian who passed away on June 12, 2005, but will always be dear to our hearts. Jim Bernstein's work ended as it began--in selfless service to underserved communities in need. A career arc that began with volunteer service with the U.S. Peace Corps in Morocco ended with post- retirement volunteer service to the North Carolina Department of Health & Human Services' rural health initiatives. In between, Jim provided the Nation and the State of North Carolina with more than 30 years of distinguished leadership in a variety of health and social policy arenas, including rural health, health care finance, public health, social service delivery, medicaid, nonprofit management and health care system innovation.

After earning a bachelor of arts degree in political economy from John Hopkins University in 1964 and a masters of hospital administration from the University of Michigan in 1968, Jim began his lifelong health care service as the director of Indian Health Services for Northern New Mexico. In 1970, he was awarded a 3-year fellowship in the U.S. Public Health Service, and relocated to North Carolina to concentrate his studies on rural health and fuel a passion that would serve as the basis for the next 35 years of his career.

In 1973, while still in his 20's, Jim became the director of the Nation's first Office of Rural Health, located in North Carolina. In that role--which he held for nearly 30 years--Jim spearheaded the development and implementation of a medical recruitment service designed to help rural and medically underserved communities recruit physicians and other health care providers. Since then, more than 2,500 physicians, nurse practitioners, physicians' assistants, dentists and other health care professionals have been recruited to North Carolina. He also directed the development of 83 community-owned health centers, and led the creation of Community Care of North Carolina, a care management program that today provides access to high-quality, cost- effective care to more than 643,000 North Carolinians. Those efforts-- and countless others--have positioned the State's rural health function as a nationally recognized model of excellence.

Throughout his career, Jim served as a director, chairman or consultant to more than two dozen professional organizations, including: National Rural Health Association, where he was president from May 1994 to May 1995; National Advisory Committee on Rural Health--U.S. Public Health Service, Office of Rural Health Policy, 1994 to 1995; Institute of Medicine--Committee for Guidance in Designing a National Health Care Disparities Report, Washington, DC 2001 to 2005; Commissioner, Prospective Payment Assessment Commission, where he was selected by the U.S. Congress to advise the body on Medicare finance; 1990 to 1996; chairman, Advisory Panel to the Office of Technology Assessment's Study on Rural Health Care, U.S. Congress; 1988; Delegate, National Medical Tour to the People's Republic of China, 1978; Consultant, National Academy of Sciences/Institute of Medicine--Task Force on Study of Health Needs in Egypt, Cairo, Egypt; 1978. His extraordinary commitment to lifelong community service to these and dozens of other organizations garnered him the North Carolina Order of the Long Leaf Pine in 2005.

In 1982, upon the recommendation of a State legislative study commission, Jim helped establish the North Carolina Foundation for Advanced Health Programs, Inc, NCFAHP. From 1982 to 2005, he served as the foundation's president, helping it spearhead projects targeting the health care needs of low-income underserved communities. Under Jim's leadership, NCFAHP secured more than 40 grants totaling more than $17 million, allowing it to

implement dozens of programs for enhancing health care delivery across the State. He also served as national director of the Robert Wood Johnson Foundation's Practice Sights Program through NCFAHP.

Before retiring in 2005, Jim had, since 2001, served as assistant secretary for Health at the N.C. Department of Health and Human Services. In that role, he oversaw the North Carolina Departments of Facility Services, Medical Assistance, Mental Health, Minority Health, Public Health and Rural Health. He also served as an adjunct professor at the University of North Carolina at Chapel Hill School of Medicine, Department of Social and Administrative Medicine; 1979 to 2005 and as an adjunct assistant professor at the School of Medicine at Duke University in Durham, NC, Department of Community and Family Medicine; 1978 to 2005.

Jim's impact on North Carolina will never be forgotten. He was a champion for rural health car and the belief that every individual should have access to high-quality health care.

Mr. President, I also thank my colleagues for bringing the

important work of the Afghan Medical Relief Foundation to the attention of the chairman. The AMRF has successfully trained 16 health care professionals to diagnose and treat diabetes, developed a uniform patient management model, and increased knowledge of diabetes among the diabetic and general population.

Mr. President, I rise today to offer my thanks and appreciation, and those of all North Carolinians, to Colonel Charles ``Ray'' Alexander, Jr., Commander of the Army Corps of Engineers Wilmington, NC district. Today is Colonel Alexander's last day as commanding officer of the district. While we celebrate his retirement with his family, we will miss the impact he has had on North Carolina and the Nation.

Colonel Alexander has distinguished himself with exceptionally meritorious service as district commander since 2002. Under his command, the district continued construction of the Wilmington Harbor deepening project and met the target for delivering deep water to the State port docks in January 2004 despite numerous fiscal challenges. The Wilmington Harbor deepening is the largest civil works project in the district's history and a very important navigation project, providing economic benefit to the State. Additionally, the deeper channel has been an asset to the local military installations in support of the global war on terror.

Under Colonel Alexander's direction, the district has been involved and successful in protecting the Nation's environment. Numerous environmental enhancement projects, including the Roanoke Island Festival Park aquatic habitat restoration and protection project, are testament to this highly successful program.

This and many other projects earned the district the 2004 Coastal America Partnership Award and North Carolina Coast Federal Pelican Award, the 2003 Chief of Engineers' Environmental Award for product delivery team design and construction of an island estuarine habitat, and nomination and subsequent recognition as the North Carolina Conservationist Partner of 2003 by the North Carolina Land Trust Council. A district project delivery team under Colonel Alexander's command also earned an environmental award from the Environmental Protection Agency for its work cleaning up EPA facilities in the Research Triangle Park.

Colonel Alexander also executed a systematic plan to improve relationships with local, State, and Federal entities. Locally, we completed renourishment of Kure, Carolina, and Bald Head Island Beaches and a project to reinstitute the use of dredged materials on Bogue Banks. Additionally, the district created a water management committee to meet the needs of over 40 agencies and many private citizens.

Colonel Alexander also led the efforts in 2003 to provide exceptionally responsive emergency management services during Hurricane Isabel in North Carolina, including the highly successful reconstruction of vital road infrastructure for the Cape Hatteras breach. He also led the Wilmington effort in aiding the recovery from the recordbreaking 2004 hurricane storm season.

I would also like to commend Colonel Alexander for his support of the Army Corps outside his district and in the war on terror. His selflessness was exhibited by his leadership for the $84 million recovery effort in 2004 after Hurricane Ivan devastated Alabama. This highly complex operation included providing emergency power, ice, water, housing, debris collection and reduction, roofing, and technical assistance to the citizens of Alabama following the storm, which made landfall 700 miles from the district headquarters. Hundreds of Corps of Engineers employees from all over the Nation were brought in to this well executed operation.

Colonel Alexander's leadership and commitment in the global war on terror is evident in his ability to motivate more than 20 team members to volunteer to serve abroad as members of South Atlantic Division's Forward Engineer Support Teams, Task Force Restore Iraqi Electricity, the Gulf Region Division, and the Afghanistan District. The number continues to grow and several members have served on multiple deployments.

In closing, generations of North Carolinians who have never met Colonel Alexander will benefit from the results of his work. At this special time in his career, I wish him all the best and thank him for a job well done.