Floor Statements

Madam President, I rise today to express my concern regarding

a provision included in the Intelligence authorization conference report, which has been included in the intelligence reform legislation before us. I commend the efforts of both Chairman Roberts and Vice Chairman Rockefeller for their hard work during the negotiations over this legislation. But I, like the vice chairman, do not support the continued funding of a major acquisition program which is unnecessary, ineffective, over budget, and too expensive. The easier path would be to step aside and let this program continue without dissent. In this case, however, I do not believe the continued funding of this program is the best way to secure our Nation and the safety of our troops and citizens.

The Senate Select Committee on Intelligence has raised concerns about the need and costs of this program for the past 4 years and sought to cancel this program in each of the past 2 years. This has not been a political issue, a Democratic or Republican issue, nor should it be. The members of the Senate committee have supported these efforts in a nonpartisan way with unanimous votes each time.

The Senate Intelligence Committee has determined that this program should not be funded based on firm policy judgments. Numerous independent reviews have concluded that the program does not fulfill a major intelligence gap or shortfall, and the original justification for developing this technology has eroded in importance due to the changed practices and capabilities of our adversaries. There are a number of other programs in existence and in development whose capabilities can match those envisioned for this program at far less cost and technological risk. Like almost all other acquisition programs of its size, initial budget estimates have drastically underestimated the true costs of this acquisition and independent cost estimates have shown that this program will exceed its proposed budgets by enormous amounts of money. The Senate Intelligence Committee has also in the past expressed its concern about how this program was to be awarded to the prime contractor.

I understand why funding for this program was included in the conference report. The administration requested it, the appropriators have already funded it, and the House wanted to maintain the funding. Nevertheless, I believe this issue must be highlighted because it is not going away. I wish more of my colleagues knew of the details of this program and understood why we are so convinced that it should be canceled. I encourage you to request a briefing, to come to the Intelligence Committee and let our staff explain why we believe we are right about this program. If you do, I believe my colleagues would agree with the members of the Senate Intelligence Committee and vote to stop this program next year.

I am pleased that the so-called ``lone wolf'' terrorist provision, which had passed the Senate twice since the attacks of 9/11, has been included in the intelligence reform legislation.

As all my colleagues who have read the 9/11 Commission Report know, the case of Zacarias Moussauoui--the ``twentieth hijacker''--showed that current law was insufficient to address cases in which a foreign person is suspected of terrorist involvement but had no known connection to a terrorist organization. Current law under the Foreign Intelligence Surveillance Act, or FISA, required that the FBI show that any suspected terrorist must have links to a known foreign terrorist group before the special FISA court would issue an intelligence warrant to surveil or search the suspect. The Senate passed bill made this needed change and included reporting requirements necessary to ensure proper congressional oversight of how this provision was implemented. The bipartisan effort to enact this provision was led by Senators Kyl and Schumer who proved that we can fight terrorism more effectively without giving up our privacy and cherished civil rights.

The 9/11 Commission identified the Moussaoui case as one instance where, if things had gone right and with a lucky break here or there, the disastrous attacks against the World Trade Center and the Pentagon may have been delayed, disrupted, or even stopped. I acknowledge the concerns some have expressed regarding the possibility this provision may be misused or unnecessarily extends the reach of the FISA statute. I believe that we can address these concerns with proper congressional oversight of how this authority is used and review of this provision prior to its 2005 sunset.

Mr. President, I wish to commend Senators Collins and Lieberman for their leadership in working round the clock for months to translate the key recommendations of the 9/11 Commission into reality. Thanks to their tireless and bipartisan effort, I and my colleagues today can point to a provision in the intelligence reform bill that will clear the fog of unnecessary secrecy that has for too long clouded our national intelligence picture. As the principal sponsor of this bipartisan provision, which will establish for the first time an appeals procedure that members of Congress may use regarding the classification of materials for national security purposes, I wish to explain how I envision this new process working.

The power to classify documents as secret is one of the most powerful tools in American Government, and it seems to be very much in vogue. Over-classification of documents is now the rule rather than the exception. Documents are sometimes classified for political reasons rather than to protect national security interests. Last year alone, the Federal Government spent $6.5 billion creating 14.3 million new classified documents. That is double the number of documents 10 years ago. This awesome power should be used judiciously, and it surely should not be the subject of old fashioned horse trading, as it was last summer during the preparation of the Senate Intelligence Committee's report on pre-Iraq war intelligence.

Last summer the Senate Intelligence Committee, on which I serve with my co-authors, spent more than 6 weeks arm-wrestling with the Central Intelligence Agency, CIA, over how much of the report on pre-Iraq war intelligence would be made public. Originally, the agency wanted to black out more than half of the report. In the end, ``only 20 percent'' of the report was blacked out.

At that time, there was no independent body to which the committee members could turn to find out what should and should not be classified for national security purposes. That is precisely the problem addressed by the provision crafted by Senators Lott, Bob Graham, Snowe, and myself. Our provision will give Congress for the first time a means of appealing classification decisions.

The provision gives Congress the authority to appeal classification decisions to an independent standing body, the Public Interest Declassification Board. This Board is made up of nine members with expertise in national security and related areas; five are appointed by the President and four by the bipartisan leadership of the Senate and House. Under the amendments made by section 1102, when any Member of Congress asks the Board to declassify a document or materials, the Board ``shall advise the originators of the request in a timely manner whether the Board intends to conduct such review.''

This means that if I or another Member of the Senate were to ask the Board to determine whether a document is properly classified for national security purposes, the Board must respond in a timely manner. ``Timely'' is defined as ``early'' or ``soon.'' It is my expectation that whether it is a member of Congress or a committee seeking the Board's decision on the proper classification of information, the Board will get back to the requester expeditiously.

I am of the view that the problems in our intelligence community will not be addressed until the problems in the national security classification system are addressed. Thomas Kean, who chaired the 9/11 Commission, said that three-quarters of the classified material he reviewed for the Commission should not have been classified in the first place. Now, as the Senate acts on the conference report that strongly reflects the 9/11 Commission recommendations, it only makes sense to include this provision.

I have no illusions that this classification appeals mechanism will abolish the strongly rooted institutional bias in favor of overclassification, but taken in conjunction with the overall review of the standards used to classify information contained in other sections of the conference report, it is a very sound first step.

I am grateful to Senator Lott, my principal cosponsor, for championing this matter in conference. He and his staff worked nonstop to preserve this provision. I also want to acknowledge the efforts of Senator Bob Graham, another conferee, and his staff to defend our work.

Mr. President, last May, I announced my intention to object to any unanimous consent request for the Senate to take up the nomination of Deborah Majoras to be the Chair of the Federal Trade Commission, FTC. I did so because despite several requests, I had received no assurance from Ms. Majoras that under her leadership, the FTC would take any steps to address anticompetitive practices that drive up gasoline prices nationwide and particularly in the Pacific Northwest. Oregon consumers typically pay some of the highest gasoline prices in the Nation.

Today, I received a letter from Ms. Majoras describing how she is moving forward on certain commitments she made to me concerning the FTC's policies for the oil and gasoline industry.

In particular, she committed to consult with outside experts to get to the bottom of the differences between the Government Accountability Office, GAO, and the FTC on the impacts of the FTC oil merger policies on gasoline prices. Ms. Majoras' letter states that she is working to do this by conducting a public review of the GAO report on the Effects of Mergers and Market Concentration in the U.S. Petroleum Industry. Following that review, Ms. Majoras also promises to share her views with me on the GAO report.

Ms. Majoras' letter indicates she is making a good-faith effort to take a fresh look at the issues raised by the GAO report. In light of this and the other actions Ms. Majoras has initiated to get to the bottom of the reasons why consumers in my part of the country are paying such high gasoline prices, I will no longer object to any unanimous consent request for the Senate to take up Ms. Majoras' nomination. I will, however, continue to closely monitor the FTC actions under Ms. Majoras' leadership to ensure gasoline consumers are not overpaying at the pump.

I ask unanimous consent that a copy of this statement along with Ms. Majoras' letter be printed in the Congressional Record.

Mr. President, I rise to discuss a bill I am introducing today, the Long Term Care Quality and Consumer Information Act.

I hope that this bill will spark a serious debate about how we pay for quality care. This proposal establishes a voluntary system under which nursing homes providing better quality of care would receive higher payment and in turn would provide more information about the quality of care provided. Information would include nurse staffing ratios and would be made public to consumers and their families.

Historically, Americans have been paying the same for quality health care as for mediocre care. Efforts have been made by some in the private sector to better recognize and incentivize those providers who consistently provide higher level of care. The Institute of Medicine (IOM), in its report ``Leading by Example,'' declared the government should take the lead in improving health care by giving financial rewards to hospitals and doctors who improve care for beneficiaries in six Federal programs, including Medicare and Medicaid and the Veterans Health Administration. The IOM report also said the government should collect and make available to the public data comparing the quality of care among providers. The Centers for Medicare and Medicaid Services has begun pilot programs. I think nursing homes should also be an area in which we explore payment policies that regard those providing a higher quality of care.

I look forward to continuing the discussion with all stakeholders about these concepts so we can assure a high level of care and find ways to help providers improve the level of care they provide.

Mr. President, I rise to discuss a bill I am introducing today, the Long Term Care Quality and Consumer Information Act.

I hope that this bill will spark a serious debate about how we pay for quality care. This proposal establishes a voluntary system under which nursing homes providing better quality of care would receive higher payment and in turn would provide more information about the quality of care provided. Information would include nurse staffing ratios and would be made public to consumers and their families.

Historically, Americans have been paying the same for quality health care as for mediocre care. Efforts have been made by some in the private sector to better recognize and incentivize those providers who consistently provide higher level of care. The Institute of Medicine (IOM), in its report ``Leading by Example,'' declared the government should take the lead in improving health care by giving financial rewards to hospitals and doctors who improve care for beneficiaries in six Federal programs, including Medicare and Medicaid and the Veterans Health Administration. The IOM report also said the government should collect and make available to the public data comparing the quality of care among providers. The Centers for Medicare and Medicaid Services has begun pilot programs. I think nursing homes should also be an area in which we explore payment policies that regard those providing a higher quality of care.

I look forward to continuing the discussion with all stakeholders about these concepts so we can assure a high level of care and find ways to help providers improve the level of care they provide.

Mr. President, our health care system is structured to cure but often neglects how we die and how to make dying patients and their families more comfortable. Today, I am introducing two bills which I believe will provide better care options for dying patients in our country. The Medicare Hospice Demonstration Act seeks to test ways in which to improve the Medicare hospice benefit, and the Palliative Care Training Act recognizes that we need a larger cadre of health care professionals who know how to help those with terminal illnesses have a better quality of life.

Although this Congress made improvements in the Medicare Hospice benefit last year, I believe we need to continue to test new modes of providing hospice care so that more seniors are not only aware of the benefit, but access it when needed. Medicare introduced the hospice program in 1983 as an optional benefit for achieving a ``good death''. This benefit is widely recognized as effective in improving quality of life for terminally ill patients. Hospice programs provide a range of services to control pain and provide comfort care, primarily to individuals in their own homes. In the past decade, the number of Medicare patients receiving hospice care has more than doubled. Today, about 20 percent of patients who die in the United States receive hospice care. However, average lengths of stay in hospice have been dropping. According to the GAO, twenty-eight percent of Medicare patients in the hospice program receive hospice care for one week or less. One reason for this shift in hospice use is patient unwillingness to forego curative care--or to abandon hope despite a terminal diagnosis. The Medicare hospice program pays for medical procedures necessary for pain control and other symptom management, but not those aimed at curing the patient. As a result, many seriously ill patients resist the program because it forces them to make a choice between the hope that there might be a cure and the acceptance that one's life is coming to an end.

The Medicare Hospice Demonstration Act would remove this obstacle by permitting patients to seek hospice care as they continue curative treatment. I believe more people would use the hospice benefit and use it in a timely manner so they could get the full benefit of the range of services hospice offers if they did not have to give up hope. I also believe that this concept along with counseling assistance provided by this demonstration project would help the medical community be better able to help patients accept hospice care.

The second bill I am introducing, ``The Palliative Care Training Act'', uses the model already in law for other specialities to create a Hospice and Palliative Care Academic Career Award. This award would foster the creation of faculty at our Nation's medical schools to teach palliative

care, once the specialty is recognized as a board certified specialty.

For some the term ``palliative care'' may be new. Palliative care improves the quality of life of patients and their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering by means of early identification, assessment, and treatment of pain and other problems, physical, psychosocial and spiritual. It neither hastens nor postpones death. This type of care offers a support system to help patients live as actively as possible until death and to help the family cope during their loved one's illness and in their own bereavement. In addition, palliative care is applicable early in the course of illness, in conjunction with other therapies that are intended to prolong life, such as chemotherapy or radiation therapy.

No one likes to think about what it will be like at the end of our lives. We rarely have the discussions we need to have with our medical providers about how to help us have a ``good'' death. Much of the fault lies in the way we have structured our health care system. With all that the American health system has to offer, we need to make sure resources are put in place to assure patients and their families better care in their last days. I believe these two bills provide important components to do that.

Mr. President, our health care system is structured to cure but often neglects how we die and how to make dying patients and their families more comfortable. Today, I am introducing two bills which I believe will provide better care options for dying patients in our country. The Medicare Hospice Demonstration Act seeks to test ways in which to improve the Medicare hospice benefit, and the Palliative Care Training Act recognizes that we need a larger cadre of health care professionals who know how to help those with terminal illnesses have a better quality of life.

Although this Congress made improvements in the Medicare Hospice benefit last year, I believe we need to continue to test new modes of providing hospice care so that more seniors are not only aware of the benefit, but access it when needed. Medicare introduced the hospice program in 1983 as an optional benefit for achieving a ``good death''. This benefit is widely recognized as effective in improving quality of life for terminally ill patients. Hospice programs provide a range of services to control pain and provide comfort care, primarily to individuals in their own homes. In the past decade, the number of Medicare patients receiving hospice care has more than doubled. Today, about 20 percent of patients who die in the United States receive hospice care. However, average lengths of stay in hospice have been dropping. According to the GAO, twenty-eight percent of Medicare patients in the hospice program receive hospice care for one week or less. One reason for this shift in hospice use is patient unwillingness to forego curative care--or to abandon hope despite a terminal diagnosis. The Medicare hospice program pays for medical procedures necessary for pain control and other symptom management, but not those aimed at curing the patient. As a result, many seriously ill patients resist the program because it forces them to make a choice between the hope that there might be a cure and the acceptance that one's life is coming to an end.

The Medicare Hospice Demonstration Act would remove this obstacle by permitting patients to seek hospice care as they continue curative treatment. I believe more people would use the hospice benefit and use it in a timely manner so they could get the full benefit of the range of services hospice offers if they did not have to give up hope. I also believe that this concept along with counseling assistance provided by this demonstration project would help the medical community be better able to help patients accept hospice care.

The second bill I am introducing, ``The Palliative Care Training Act'', uses the model already in law for other specialities to create a Hospice and Palliative Care Academic Career Award. This award would foster the creation of faculty at our Nation's medical schools to teach palliative

care, once the specialty is recognized as a board certified specialty.

For some the term ``palliative care'' may be new. Palliative care improves the quality of life of patients and their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering by means of early identification, assessment, and treatment of pain and other problems, physical, psychosocial and spiritual. It neither hastens nor postpones death. This type of care offers a support system to help patients live as actively as possible until death and to help the family cope during their loved one's illness and in their own bereavement. In addition, palliative care is applicable early in the course of illness, in conjunction with other therapies that are intended to prolong life, such as chemotherapy or radiation therapy.

No one likes to think about what it will be like at the end of our lives. We rarely have the discussions we need to have with our medical providers about how to help us have a ``good'' death. Much of the fault lies in the way we have structured our health care system. With all that the American health system has to offer, we need to make sure resources are put in place to assure patients and their families better care in their last days. I believe these two bills provide important components to do that.

Mr. President, in just a couple of weeks, on October 23, a memorial will be erected by villagers and family member at Suhozem, Bulgaria to honor one of our Nation's brave soldiers and one of Oregon's native sons, Lt. Kingsley. Today, I wish to take a few minutes to remember Lt. Kingsley and share his story of great courage and sacrifice.

The story of Lt. David Kingsley is emblematic of the strength and pioneering spirit of the earliest Oregonians. Lt. Kingsley was born and raised in Portland, OR and graduated from Benson High School. Prior to enlisting in the Air Force, he worked in the disaster unit of the Portland Fire Bureau--always committed to the service of his community and country. During the Second World War, he went to pilot training, and then served as a bombardier in a B-17F. He was assigned to the 341st Bomb Squadron, 97th Bombardment Group, 15th Air Force.

On June 23, 1944, he was on Mission No. 295, flying out of Amendola airfield in Foggia, Italy against the Dacia Oil Refinery in Ploesti, Romania. While on the bombing run, the right wing of his aircraft was hit by enemy fire. His aircraft took 15 strikes, crippling it as it flew over Bulgaria. The attack injured several members of the aircrew, including the tail-gunner. Lt. Kingsley had to remove the tail-gunner's damaged parachute to provide first-aid.

An order to bailout was given; the Lieutenant gave his parachute to the injured tail-gunner and reminded him to pull the ripcord. The last airman exiting the crippled aircraft remembers seeing Lt. Kingsley standing in the bomb bay of the plane, making sure all of his fellow crew were out of the plane first. Because of Lt. Kingsley's previous flying experience, he jumped into the pilot's seat and tried to regain control of the aircraft, which descended and circled the field in an attempt to land. Witnesses reported seeing the aircraft dive steeply and crash in a field just north of Plovdiv, Bulgaria. Lt. Kingsley never got out alive. For his extreme bravery he was posthumously awarded the Medal of Honor.

Today, one of the Oregon Air Guard's F-15 units is based in southern Oregon at Kingsley Field, named in Lt. Kingsley's honor. This year marked the 60th anniversary of that fateful day and of Kingsley's heroism.

At a time when so many young men and women from Oregon and all across the Nation are fighting overseas, we honor their service. And we must also remember to honor the service of these veterans--some of whom, like Lt. Kingsley, have made the ultimate sacrifice--so that we can live in freedom and continue to pursue our dreams. We do not forget and will not forget them, and we are forever grateful for their honorable service to and sacrifices for our Nation.

Sergeant Joshua J. Skvor

Mr. President, today I am introducing legislation regarding the way the trade policies of the United States affect the ability of developing countries to access to generic drugs.

The bill addresses concerns that this Administration, through the United States Trade Representative, is pursuing policies that will make it even more difficult for developing countries to gain access to the drugs they need, particularly generics, to treat their public health problems like TB, HIV/AIDS and malaria. This is just wrong.

The policies the Administration seeks to put in place are data exclusivity provisions. Such provisions tend to benefit drug manufacturers. As reported in The Wall Street Journal and elsewhere, when these provisions are included trade agreements they essentially bar countries from being able to get more affordable generic drugs for a period of time, usually five years.

Trade agreements should be about promoting trade. People in developing

nations who are suffering from such epidemic diseases should not be denied access to affordable medicines because of trade agreements.

The purpose of what is known as the Doha Declaration was to clarify that trade rules on intellectual property would not interfere with the ability of developing countries to take measures to protect public health. The legislation I am introducing today would prohibit USTR from spending any funds in order to impose data exclusivity for drugs used to treat HIV/AIDS, tuberculosis, or other epidemics, or needed in circumstances of extreme urgency, or national emergency.

I am not one to trample on the need to protect trade secrets, but I cannot condone policies that inhibit developing countries from being able to address their own public health needs. In today's world, it is shortsighted to think that infectious diseases cannot cross borders. By allowing developing countries access to generic drugs, we not only help improve health in those nations, we also help ourselves control these debilitating and often deadly diseases.

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

Mr. President, today I am introducing legislation regarding the way the trade policies of the United States affect the ability of developing countries to access to generic drugs.

The bill addresses concerns that this Administration, through the United States Trade Representative, is pursuing policies that will make it even more difficult for developing countries to gain access to the drugs they need, particularly generics, to treat their public health problems like TB, HIV/AIDS and malaria. This is just wrong.

The policies the Administration seeks to put in place are data exclusivity provisions. Such provisions tend to benefit drug manufacturers. As reported in The Wall Street Journal and elsewhere, when these provisions are included trade agreements they essentially bar countries from being able to get more affordable generic drugs for a period of time, usually five years.

Trade agreements should be about promoting trade. People in developing

nations who are suffering from such epidemic diseases should not be denied access to affordable medicines because of trade agreements.

The purpose of what is known as the Doha Declaration was to clarify that trade rules on intellectual property would not interfere with the ability of developing countries to take measures to protect public health. The legislation I am introducing today would prohibit USTR from spending any funds in order to impose data exclusivity for drugs used to treat HIV/AIDS, tuberculosis, or other epidemics, or needed in circumstances of extreme urgency, or national emergency.

I am not one to trample on the need to protect trade secrets, but I cannot condone policies that inhibit developing countries from being able to address their own public health needs. In today's world, it is shortsighted to think that infectious diseases cannot cross borders. By allowing developing countries access to generic drugs, we not only help improve health in those nations, we also help ourselves control these debilitating and often deadly diseases.

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

Mr. President, today I join Senators Dodd, Kennedy, and Johnson in introducing the Fair Access to Clinical Trials Act of 2004. This legislation is an important milestone for patients and doctors around this country because it would create a centralized clinical trials registry by expanding the current clinical trials.gov website to provide not only information about clinical trials they might want to be part of, but also the results of those trials. If information is not provided so it can be posted on the website, serious penalties could be imposed, including a researcher losing their ability to get future Federal grants.

It is vitally important that patients and their doctors have the information they need to decide upon the best treatment for them. As we all know, drugs are often the key treatment for many health problems. Good results about the safety and effectiveness of treatments are often trumpeted by drug companies and the media, but Americans are less likely to hear about clinical trial results that are not so good or truly negative. This legislation will ensure that everyone can get a fair picture of all results of clinical trials.

I believe that this legislation strikes the delicate balance needed so that companies which create breakthrough drugs can keep their trade secrets, the important process of assuring peer review in medical literature can continue, and consumers, doctors and researchers can have access to the information they need to make sound decisions about their health care.

Research is key in assuring health care improvements. Knowing the results of research is key in assuring better health care quality and improving decision-making by doctors and their patients. I believe that the expanded website created by this legislation will be an important tool in improving doctors' and patients' knowledge and decision-making that might well mean life or death for some patients.

Mr. President, today I join Senators Dodd, Kennedy, and Johnson in introducing the Fair Access to Clinical Trials Act of 2004. This legislation is an important milestone for patients and doctors around this country because it would create a centralized clinical trials registry by expanding the current clinical trials.gov website to provide not only information about clinical trials they might want to be part of, but also the results of those trials. If information is not provided so it can be posted on the website, serious penalties could be imposed, including a researcher losing their ability to get future Federal grants.

It is vitally important that patients and their doctors have the information they need to decide upon the best treatment for them. As we all know, drugs are often the key treatment for many health problems. Good results about the safety and effectiveness of treatments are often trumpeted by drug companies and the media, but Americans are less likely to hear about clinical trial results that are not so good or truly negative. This legislation will ensure that everyone can get a fair picture of all results of clinical trials.

I believe that this legislation strikes the delicate balance needed so that companies which create breakthrough drugs can keep their trade secrets, the important process of assuring peer review in medical literature can continue, and consumers, doctors and researchers can have access to the information they need to make sound decisions about their health care.

Research is key in assuring health care improvements. Knowing the results of research is key in assuring better health care quality and improving decision-making by doctors and their patients. I believe that the expanded website created by this legislation will be an important tool in improving doctors' and patients' knowledge and decision-making that might well mean life or death for some patients.

I, too, rise today to share concerns about the recent NAFTA panel decision. Today, the Canadian share of lumber in the U.S. market is reaching record highs. Canada's practice of dumping subsidized timber in our domestic market continues to wreak havoc on U.S. mills and jobs. My own State of Oregon has been hit especially hard, losing over 3000 jobs in the timber industry since 2002. For years now, my colleagues and I have worked with the International Trade Commission, the Department of Commerce, and the U.S. Trade Representative to help maintain mill operations and keep jobs in our country.

As my colleagues have made clear today, I believe the blatant disregard for U.S. law by the panel will further damage already suffering U.S. timber workers.

Moreover, I cannot refrain from adding, as I watch jobs in the timber industry continue to disappear at an

alarming rate, I find recent decisions by the administration to lower the duties, as a result of administrative reviews, to be particularly egregious and out of line. These decisions have exacerbated an already terrible crisis, and weakened my confidence in the administration's willingness to help our timber workers.

Simply put, I believe it is time to move toward a fix for a system that currently appears to be broken.

Mr. President, I express my appreciation to both the distinguished Senator from Connecticut and the chairman of the committee, Senator Collins. As I said on Monday, the Senate is well served by having this bipartisan duo that has long practiced good government steering us on this important piece of legislation.

The Senator from Connecticut is absolutely right; the three of us have worked very cooperatively over the last few days. Senator Lott also has made a valuable contribution, as well as Senator Cornyn, Senator Dayton, and Senator Snowe. A bipartisan group of Senators has been concerned about this issue. I believe the legislative counsel's office will have the actual language to bring to the Senate very shortly, probably in 10 or 15 minutes.

With the agreement of the Senator from Connecticut, I will take a few minutes to outline what the distinguished Senator from Maine, the Senator from Connecticut, myself, Senator Lott, and our group have agreed to.

The ability to stamp a Government document secret is one of the most powerful tools in our Government. The backdrop for this whole debate was best summed up by Governor Kean, who did such a good job in chairing the 9/11 Commission, who said three-quarters of all the documents he saw associated with his work on the 9/11 Commission that were classified should not have been classified. The power to stamp, in effect, Government documents secret is now a power wielded by people in the belly of 18 Federal agencies where they now classify more than 14 million new documents each year. This is a power that costs taxpayers about $6.5 billion a year, and it is a power that is simply out of control.

Senators on both sides of the aisle recognize that the system used to classify information for national security purposes is broken. It has been the premise of our bipartisan group that it is possible to fight terrorism ferociously, aggressively, and at the same time make sure that the public's right to know information the public is entitled to is addressed.

When we look, for example, at the Senate Intelligence Committee-- Senator Lott, Senator Snowe, Senator Bayh and I serve on that committee--had it not been for the exceptional work of Chairman Roberts and Senator Rockefeller, much of what we tried to do with respect to our bipartisan report on prewar intelligence would have simply been censored. It would have all been drowned in a sea of black ink. So what we need to do is bring some common sense to this area which is now a hodgepodge of laws and regulations and directives. We are now in a position to outline the changes we have agreed to in our legislation.

First--most importantly--this legislation establishes an independent body known as the independent national security classification board which would review existing or proposed classification of any document or material. They would, in effect, be part of an effort for the first time to ensure that there would be an independent board to which there can be an appeal of classification decisions. Although right now an executive agency has had an appeals body, it has been off limits to congressional requests. For the first time, there will be an independent board that will look at these classification issues and there will be a right of the Congress to appeal a decision.

The distinguished chair of the committee was not on the floor, but I want to express while she is here my appreciation to her. What this has been all about from the very beginning is not a Democratic or Republican issue.

This has been about righting the imbalance between the executive branch and the legislative branch with respect to classification decisions. That is what we have been able to do. It ensures that any President's prerogatives as Commander in Chief are maintained. That is essential with respect to national security issues.

We will also have a chance to bring some real independence to the process of how Government documents are classified by ensuring that for the first time there is an independent route to have a classification decision reviewed.

That process will come after we have had a top-to-bottom review of the standards and processes used to classify information. The chair of the committee and I have talked about this in the past. What has been striking is we have never even done a review of the processes that are now used to classify

documents. People such as those who run the National Archives have said that has been a factor in our having such a chaotic system.

So for the first time, again, Congress would have input into the scope of the review that would take place with respect to how Government documents are classified as well as the guidelines or standards that would be issued as a result of the review.

The independent national security classification board the amendment establishes would assume the duties of a group now known as the public interest declassification board. The new board would be made up of nine individuals, five of whom are appointed by the President and four of whom are appointed by the Senate and the House leadership. This is an effort to try to maintain a new kind of balance between the legislative branch and the executive branch.

In order to make sure that balance is maintained over time, the new board may recommend changes in the classification of all or portions of documents, but the President does not have to accept them. However, the key feature here is, if the President chooses not to accept a recommendation of the independent national security classification board, the President would have to submit to Congress in writing the justification for a decision not to implement the recommendation.

To reiterate, there would be an independent body to which Congress can appeal national security classification decisions, but at the same time, if the President doesn't see it in the same way the independent board does, the President, as Commander in Chief, still has the power to exercise the constitutional prerogative as the President determines, but for the first time it would have to be done in writing. I do not subscribe to the view that there is an inherent conflict between the executive branch's accountability to Congress and the American people on one hand and the constitutional role of the President as Commander in Chief. We have long needed a balance in this area, a balance between the public's need for sound, clear-eyed analysis, and the executive's desire to protect the Nation's legitimate security interests.

In my view, there is no room in this equation for the use of classification to insulate officials and agencies from politics. That was essentially the motivation that got Senator Lott and Senator Snowe and a bipartisan group of us in the first place. We have seen this abused again and again.

Senator Moynihan did exceptional work years ago, documenting how so many documents have been classified largely because they were trying to provide political cover rather than protection for this country's national security. Senator Moynihan was a mentor to me because when I came to the Senate, I said I was interested in making changes.

Senator Collins has been very helpful. She has also been helpful on some of the other issues we will take up in the course of this legislation, particularly the data mining area, where she and Senator Lieberman have a great interest as well.

But Senator Lott, Senator Bob Graham, Senator Cornyn, Senator Snowe-- the group who worked on this issue--are very appreciative of the help we received from the chair and the ranking minority member.

This amendment involves millions of Government documents. It involves more than $6 billion that is spent on the classification system each year.

I think we are starting now to lift this kind of fog of secrecy-- changing a classification system that rewards secrecy and discourages openness. We will have the amendment actually before the Senate probably in a few minutes. In the interest of time--I know the hour is late and Senators have amendments--I wanted to speak about this, and I wanted to describe what it was that we have agreed to.

Senator Collins's staff and Senator Lieberman's staff have put in a lot of hours with us over the last few days. I am very appreciative and particularly pleased that it would be possible to make these kinds of changes. Senator Moynihan was right years ago when he advocated a process that brought some real independence and a right of appeal to a classification decision. The amendment we will offer tonight does just that.

I see the distinguished chairman of the committee in the Chamber. I yield the floor at this time.

Mr. President, I will be very brief. Again, I express my appreciation to the chair and ranking minority member. The chair made an important point with respect to the executive branch. Clearly, no President, no executive branch is going to ever hold a rally in favor of this kind of idea.

I think the Senator mentioned Senator Lott. Senator Lott has been invaluable from the very beginning. He said we just have to build in-- whether it is Democrats or Republicans--a new sense of independence. I have tried to say that there is no question in my mind, whether it was a Democratic administration or a Republican administration, what you are talking about are human beings who I think inherently are going to be concerned about something coming out. So out comes the stamp and something is marked ``classified,'' and by the time the rubberstamp program is done, you have millions of documents classified in our country for reasons that have nothing to do with national security.

The Senator from Maine has summed it up very well. I am sure we are going to continue to hear from the administration as this is debated in the Senate and in the House. I do think we have struck a balance that ensures that by giving the President, in effect, the first word on a classification decision, through their appointees having the ability to classify a Government document and, in effect, the last word on a subject, because the independent board makes the recommendation to the President, if the President decides he doesn't want to go along with the independent board, they get the last word by stating in writing why they think the independent board is off base. I think that is the kind of balance between the executive branch and the legislative branch that we ought to have.

What pleases me is tonight this is the end of the line for a classification system that, in effect, encourages secrecy, discourages openness, and I am glad a bipartisan effort could have put all this time into it. I think we will have the amendment over here quickly. With the concurrence of the chair and the ranking minority member, it is not my intent to ask for a recorded vote. I think we can do it on a voice vote.

I yield the floor.

Madam President, I ask unanimous consent to set aside the pending McCain amendment.

I send an amendment to the desk on behalf of myself, Senator Lott, Senator Bob Graham, and Senator Snowe.

Without turning this into a bouquet-tossing contest, I will say how lucky I think we are to have Senator Collins and Senator Lieberman, who have long practiced good government, handling this legislation. This is going to be a long and arduous task and to have this bipartisan duet at the helm is what is going to make this possible. I have enjoyed working with them on this and so many other issues in the past. We are going to get this done. The country is going to be safer and stronger for it, and I am very grateful for the work of the Senator from Maine and the Senator from Connecticut.

Governor Kean, the chairman of the 9/11 Commission, said three- quarters of the classified material he reviewed for the Commission should not have been classified in the first place. I think Governor Kean's comments reflect the state of where we are with respect to how Government documents are classified today, and it is for that reason that a bipartisan coalition has spent a considerable amount of time on the Intelligence Committee. Senator Lott and Senator Snowe and I serve there now.

Senator Bob Graham, of course, chaired the committee, and the four of us, two Democrats, two Republicans, have teamed up so as to try to make sure that in this important reform legislation some common sense is brought to the way that information is classified for national security purposes.

The ability to make documents secret is one of the most powerful tools in our Government. It is a power wielded generously by those in 18 agencies that deal with intelligence. My concern is that the Senate could spend weeks debating flowcharts and organizational changes and moving the boxes around with respect to where people in the intelligence community sit, but if the underlying way in which information is classified is not reformed, it is going to be very hard to make information sharing throughout the intelligence community effective. Very little will have been accomplished if information continues to be classified for purposes of protecting somebody's political career rather than our national security or if classification decisions continue to deprive the American people of their ability to judge the effectiveness of their Government on national security matters.

The 9/11 Commission report says the need to restructure the intelligence community grows out of six problems. One of them, the Commission says at page 410, is that, in their words, ``The intelligence community is too complex and secret.''

The Commission states:

Over the decades, the agencies and the rules surrounding

the intelligence community have accumulated to a depth that

practically defies public comprehension. . . . Even the most

basic information about how much money is actually allocated

to or within the intelligence community and most of its key

components is shrouded from public view.

The bipartisan amendment Senator Lott, Senator Bob Graham, Senator Snowe, and I offer today is premised on the belief that it is time to clear the fog of secrecy and that it is possible to do that so as to protect this country's national security. Our legislation establishes a three-person board with the President and the bipartisan leadership in the House and Senate each recommending one member, subject to Senate confirmation. Our board would have two tasks: first, to review and make recommendations on the standards and processes used to classify information for national security purposes, and, second, to serve as a standing body to act on congressional and certain executive branch requests to reexamine how a Government document has been classified.

As entities, from the traditional intelligence community to the Environmental Protection Agency, now have the power to classify documents, the board would look at national security classification across our Government. Its creation would give the Congress, for the first time, an independent body to which it can appeal a national security classification decision.

President Truman noted that the Nation's primary intelligence agency, the CIA, was created, ``for the benefit and convenience of the President.'' But the United States cannot preserve an open and democratic society when one branch of Government has a totally free hand to shut down access to information. The lack of an independent appeals process for Congress, in terms of the view of the four of us, two Democrats and two Republicans, tips the scale too far toward secrecy for any administration, and our bipartisan group of four Senators seeks to correct that imbalance.

The 1946 Atomic Energy Act established the principle that some information is born classified. There are certainly important sources and pieces of information that must never be compromised. But over the years, millions and millions of documents that weren't born classified have inherited or adopted or married into a classification. Keeping information secret for political purposes or horse trading intelligence data, especially during this critical time, a time of heightened security, is unacceptable.

Our Government must begin to be more accountable to its citizens. Having all appropriate information about national security is essential to Congress's congressionally prescribed oversight role. Access to information about their own security is the people's right. It is time to stop hiding the facts they deserve to know. Our bipartisan proposal does just that in a fashion that protects America's national security.

According to the late Senator Moynihan, who was an expert on secrecy in Government:

. . . much of the structure of secrecy now in place in the

U.S. Government took shape in just 11 weeks, in the spring of

1917, while the Espionage Act was debated and signed into

law.

Eighty years later, Senator Moynihan would note that 6,610,154 secrets were created in just 1 year alone. In fact, only a small portion, or 1.4 percent, was created pursuant to statutory authority, the Atomic Energy Act. Senator Moynihan labeled the other 98.6 percent ``pure creatures of bureaucracy,'' created via Executive orders.

The Secrecy Report Card issued in August by a coalition of groups including the American Society of Newspaper Editors found the American Government spent $6.5 billion last year creating 14 million new classified documents. This is a 60-percent increase in secrets since 2001. These numbers do not even include CIA documents. The Secrecy Report Card also points out that agencies are becoming more creative in their classification systems.

In addition to the traditional ``Limited Official Use,'' ``Secret'' and ``Top Secret,'' some agencies now have something called ``Sensitive Security Information,'' ``Sensitive Homeland Security Information,'' ``Sensitive But Unclassified,'' or ``For Official Use Only.'' It has gotten to the point where Mr. William Leonard of the National Archives Information Security Office--the gentleman who oversees classification and declassification policies; he is known to some as the secrecy czar--believes that the system defies logic in many respects. He has called today's classification system ``a patchwork quilt'' that is a result of ``a hodgepodge of laws, regulations and directives.'' In reality, the Federal Government has so many varieties of classification that it can make Heinz look modest.

In Mr. Leonard's view, the classification system for national system has lost touch with the basics to the point that some agencies don't know how much information they classify or whether they are classifying more or less than they once did or whether they are classifying too much or too little.

The executive branch exerts almost total control over what should or should not be classified. The Congress has no ability to declassify material. So there is no self-correcting mechanism in the system. Even if Members of Congress wish to share information with constituents, it is so complicated for the Congress to release information to the public that no one has ever tried to use this convoluted process. The executive branch has a little-known group that can review classification issues, but it is seldom used and open only to executive branch employees and not to Members of Congress.

What all this means in practice is that with the thump of a stamp marked ``Secret'' some unelected person in the belly of a Federal building has prevented Americans from gaining access to information. That decision cannot be appealed, even by the Congress. There is no independent review of classification decisions by the executive branch. With no chance of unbiased review, classification decisions are ready and ripe for abuse. Agencies wishing to hide their flaws and politicians--and I emphasize this, Mr. President--of both political parties who wish to make political points can abuse the classification guidelines to their advantage. And four Senators, two Democrats and two Republicans, wish to change that.

I, for one, do not subscribe to the view that there is an inherent conflict between the executive branch's accountability to Congress and the American people on the one hand and the constitutional role of the President as Commander in Chief on the other. I believe that a balance can and must be struck between the public's need for sound, clear-eyed analysis and executive desire to protect the Nation's legitimate security interests.

I believe we can fight terrorism ferociously without limiting the rights of our citizens to information. That is what the sponsors of this legislation seek to do.

There should be no room in this equation I have described for the use of

classification to insulate officials and agencies from political pressure. As a member of the Senate Intelligence Committee, I have had lengthy discussions with my colleagues on a bipartisan basis about how to strike such a balance. It is the view of Senator Lott, Senator Graham, Senator Snowe, and I that in proposing this amendment we have an opportunity to make the broad overhaul of the national security classification system and to do it in a way that will strengthen the overall reform effort that the Senate is working on.

Finally, the independent board would review and make recommendations on overhauling the standards and process used in the classification system for national security information. The board then submits proposed new standards and processes to both Congress and the executive branch for comment and review. It would then implement the new standards and processes once there has been full opportunity by the executive branch to comment. The board would then begin on an ongoing basis to implement a system, continue to review and make recommendations on current and new national security classifications subject to executive branch veto that must be accompanied by a public, written explanation.

The balance in this legislation ensures that the public and the Congress have access to an independent board for national security matters while ensuring that the Commander in Chief maintain the constitutional prerogative that the Commander in Chief must have with respect to military and foreign policy matters.

For far too long, the executive branch has adhered to the motto, ``When in doubt classify.'' Withholding information to protect political careers and entrenched bureaucracies is a disservice to the American people. It is a perversion of a policy intended to save lives, a perversion that weakens our democracy, and one that could even endanger our people. It is time to throw open the curtains and let the sun shine on American democracy and on the governmental processes we utilize today.

That is what this amendment does.

I see both the chairman and ranking member in the Chamber. Both of them have had an opportunity to see this amendment. I know both of them have a lot on their plates as we try to deal with this important legislation.

I think I can speak for Senator Lott, Senator Bob Graham, and Senator Snowe in saying we are anxious to work with the two of them. I know staff has some ideas, some of which strike me as very good, for ways in which we can improve this legislation. I wrap up only by way of saying that I think, with the excellent work they have already done as relates to the organizational structure and the flowcharts and all of the things that we are going to be debating over the next, I hope, few weeks rather than months--but I only say that to maximize the changes which will be made organizationally--we need to find a new way to strike a balance between protecting the country's national security and the people's right to know. I think that balance is out of whack today.

If you look, for example, even at the exceptional work done by Senator Roberts and Senator Rockefeller with our committee's report on the Iraq situation with respect to intelligence, had Senator Roberts and Senator Rockefeller not dug in as aggressively as they have, my sense is that well over 50 percent of that report would have been classified. In fact, the most important sections would literally receive black ink. We have to do better. I think we can do it on a bipartisan basis. I think doing it will ensure that the important work Senator Collins and Senator Lieberman are steering the Senate to will be better. I am anxious to work with both of them and staff. They have both been very gracious as always. I know my cosponsors join me in saying that as we look at various ways to refine this, we are anxious to continue to work in a bipartisan way.

I yield the floor.

Mr. President, if I could take perhaps an additional 2 minutes to make a quick comment.

And then one of our cosponsors, the former chairman of the Intelligence Committee, wants to speak on behalf of the bill, as well.

Mr. President, I ask unanimous consent Senator Cornyn of Texas be added as a cosponsor to the amendment.

Mr. President, very briefly, first I express my thanks to Senator Collins and Senator Lieberman for their help. They always go out of their way to help me and I am very appreciative of it.

My only substantive point, because we are going to work very closely, touches on the matter that our distinguished Chair made with respect to the executive branch having concerns about this issue. Every executive branch, whether it be controlled by Democrats or Republicans, will be concerned about this issue. What troubles the four of us is, whether a Democrat is President or a Republican is President, is that there are employees who can take a big old stamp, mark something ``secret,'' and then there is no independent review at all. That has been abused, in our view, on a bipartisan basis. It has been abused by administrations when they were run by Democrats. It has been abused when there have been administrations run by Republicans.

What the four Senators seek to do--now five, with the gracious help of the distinguished Senator from Texas--we seek to strike a balance between the President and the Congress.

What I say to the distinguished chairman of the committee, who makes a good point as to the executive branch, as the four of us talked about this issue--Senator Lott, Senator Snowe, Senator Graham, and myself--we felt we would give the President, the executive branch, the first word and the last word on an issue with respect to classification. It is possible under our bipartisan proposal for a President to have the last word with respect to whether a document is classified. What we do, consistent with that principle, is allow for a broad swath of congressional involvement in between the President having the first word and the last word.

I only say to the distinguished chair of the committee, I will work very closely with you and Senator Lieberman. My guess is we can never make the executive branch completely happy on this issue, whether it is controlled by a Democrat or controlled by a Republican. It is in the public interest now to strike a better balance with respect to how Government documents are classified with respect to the Congress and the President. We do that by giving the President the first word and the last word. But without any opportunity for congressional appeal, what we will have is what Senator Moynihan started talking about years ago, which is that in every executive branch, whether controlled by Democrats or Republicans, people in these agencies in the belly of some building somewhere will keep stamping stuff secret because there is no independent review. It is just in the political interests of those people to do it.

I look forward to working with my colleagues. They have been very kind.

I see the former chairman of the Intelligence Committee. My involvement in this issue really stems from the superb work Senator Graham has done. I hope everyone buys his book in hardback. It is a wonderful piece of scholarship with respect to intelligence.

I yield the floor.

Madam President, I think if you walked down the streets of the small towns in North Carolina or Oregon and asked people what the ``secret hold'' is in the Senate, my guess is you would not find one out of a thousand people who would have any idea what this extraordinarily important rule is here in the Senate. As the President knows, it is possible for any Member of this body to put a hold on a bill or nomination, and do it in secret. It is one of the most extraordinary powers a Member of the Senate has.

Senator Grassley and I have led, over more than 5 years, a bipartisan effort to try to change it, to have some sunlight over the secret hold. We have been fortunate to have the support of Senator Lott and Senator Dodd. Senator Byrd has been exceptionally helpful on it. I am very hopeful that we will finally get this changed when the Senate resumes in January, after the election.

Senator Frist has been very kind meeting with us. He, of course, became the leader and had a lot on his plate besides the question of reform of Senate rules. But we saw again last week why this is so important. Right in front of the desks here in the front of our Chamber, we saw Senators scurrying around, trying to figure out who had a hold on their bill; who, in effect, was using in these last few days of our proceeding with our work before the election, who was holding up legislation they had worked on for months, and in a couple of cases, for years.

I think this is fundamentally wrong. The rules of this body and the precedents established, as Senator Byrd has taught us so well, make so much sense. But this is a flagrant example of abuse of the rules, to have in the last few days of a Senate session Senators scurrying about here in the front of the Chamber, trying to figure out who is objecting to something they have worked on.

I think we all ought to be held accountable. If you object to a nomination or a piece of legislation, fine. But with that right should come accountability. I am very hopeful we can get those rules changed. And in the spirit of changing those rules, Senator Grassley and I have said we are in effect going to jump-start the process by making it clear that if we have an objection to the consideration of a nomination or a bill, we are going to come to the floor and announce it.

For that reason, I want to take a few minutes and outline why I publicly have placed a hold on the nomination of Deborah Majoras to chair the Federal Trade Commission. She now serves in a recess capacity. Of course, the FTC is the agency that is in a very strong position to protect the American consumer from price gouging at the gas pumps. But instead of doing its job, the Federal Trade Commission, in my view, has chosen to waste the taxpayers' money by very recently issuing a self-serving report that they use to justify their lack of enforcement action to block oil companies from merging.

In making these comments, I want to make it clear that there are a host of reasons why gasoline prices are going up. Worldwide demand is certainly a big factor. We see that higher demand is contributing to higher prices, particularly in the case of China. Certainly the mischief of OPEC is a very significant factor. Certainly the inability to put in place the kind of conservation practices our country needs in the transportation sector. There are a host of reasons why gasoline prices have soared. But the U.S. General Accounting Office (GAO), our independent body that audits these kinds of issues, said in an important recent study that the oil industry mergers the Federal Trade Commission keeps approving are a significant factor in why gasoline prices are so high.

In fact, the GAO found that the oil industry mergers that went through in the 1990s increased concentration in the oil industry significantly and increased gasoline prices for consumers by as much as 7 cents per gallon on the west coast of the United States.

Let us acknowledge there are a variety of reasons that gasoline prices have soared. But the GAO has found in an independent review that the policies of the Federal Trade Commission with respect to mergers have hammered the consumer, especially on the west coast of the United States, and in effect caused a shift of dollars out of the pockets of the consumer and into the pockets of those oil companies that benefit from these mergers.

In effect, the Federal Trade Commission again and again has tried to offer excuses for their inaction on this oil company merger issue. In their recent report, the Federal Trade Commission tries to excuse their inaction by claiming that gasoline prices at the pump are determined by world oil prices.

Again, no one disputes that can be a factor. But the record shows there is a lot more to this than the Federal Trade Commission's simplistic analysis.

Yesterday, for example, the price of a barrel of oil soared to $49 per barrel, just short of the all-time highest price on record. Yesterday's price is 15 percent higher than the price of oil was just before the Memorial Day weekend.

In effect, there is a 25-percent difference in recent gasoline prices that cannot be explained by the Federal

Trade Commission's simplistic analysis. Clearly, there is a lot more going on in U.S. gasoline markets than can be accounted for by world oil prices alone.

In the hearings we held in the Commerce Committee, I have repeatedly cited the need on a bipartisan basis to make the case for why we need the Federal Trade Commission to do a better job of watchdogging these oil company mergers and protecting the consumer against anticompetitive practices.

I have asked repeatedly about this new study from the GAO. I have asked about the fact that the FTC issued a report which I think vastly oversimplifies the reasons why gasoline prices are so high and is an excuse to look the other way on this issue of oil company mergers. But the GAO is not alone in documenting how the Federal Trade Commission regulators have been missing in action when it comes to protecting the American consumer at the gas pump.

Since 2001, according to Bloomberg News, oil industry mergers totaling $19.5 billion have been unchallenged by the Federal Trade Commission. Bloomberg reports also that these unchecked mergers have played a role in contributing to the highest gasoline prices in the past few decades.

According to our review and the Federal Trade Commission's own records, the agency imposed no conditions on 28 of 33 oil mergers since 2001.

You can see the result of the Federal Trade Commission's inaction on this issue at gas stations in Oregon and across the country.

Nationwide, the GAO found that between 1994 and 2002, gasoline market concentration increased in all but four States. As a result of Federal Trade Commission merger policies, 46 State gasoline markets now face significant concentration which is almost double what we faced in 1994.

The Federal Trade Commission, oil industry officials, and consumer groups in effect now agree that in concentrated gasoline markets--and there are 46 gasoline markets, and I represent one of those markets-- the oil companies do not need to go out and directly collude in order to raise prices. They don't need to go off to a steakhouse somewhere and sit down and in effect set the prices. The Federal Trade Commission's own general counsel said recently:

It may be possible in selected markets for individual firms

to unilaterally increase their prices.

So what you have is the Federal Trade Commission's general counsel in effect admitting that the oil companies in these concentrated markets have so much clout that in specific instances, they can price gouge with impunity.

Despite all of the evidence that gasoline markets around the country have become concentrated, and in these concentrated markets, individual firms can raise prices and extract monopoly profits, the Federal Trade Commission sits on its hands.

The General Accounting Office, in a May 2004 report, identified two major changes that even occurred in the gasoline market as a result of the wave of oil industry mergers and increased concentration during the 1990s.

First, the availability of generic gasoline, which is

generally lower priced than branded gasoline, had decreased

substantially. Second, refiners now preferred to deal with

large distributors and retailers which has motivated further

consolidation in distributor and retail markets. The net

results of these changes are likely to be higher prices and

fewer choices for consumers when they purchase gasoline,

especially in the concentrated markets. We have seen almost a

doubling of the markets that are concentrated in recent

years.

Despite the troubling findings of the General Accounting Office's report, Deborah Majoras has given no indication that she would in any way change the Federal Trade Commission's review of oil mergers. My sense is that Ms. Majoras hopes the General Accounting Office report disappears, that somehow Members of the Senate, who are busy and have lots of assignments, are going to go on to other things and are going to forget about this report which documents that the policies of the Federal Trade Commission are hammering the people I represent in Oregon and up and down the west coast.

As far as I could tell, when she is not trying to ignore the General Accounting Office report, she has taken steps to discredit the work of the General Accounting Office as she did in a letter to me.

An additional reason for my concern is that at virtually every opportunity, Deborah Majoras passes on the opportunity to even use her office as a bully pulpit to say that she is concerned about this issue. When she came for her confirmation hearings, she didn't even mention high gasoline prices among the issues she thought warranted consideration in her opening statement.

She didn't provide one significant new action she would take to address this urgent consumer issue. On August 16, Ms. Majoras received a recess appointment, and in the weeks since her recess appointment, there is no evidence that anything is going to change. As far as I can tell, the evidence indicates the campaign of inaction on competitive prices in the gasoline markets will continue. For example, Deborah Majoras announced that her priority as Federal Trade Commissioner is going to be involved in the national campaign on obesity. Well, I don't take a back seat to anybody in terms of fighting this problem. In fact, Senator Frist and I have introduced legislation directed at the growing problem of childhood obesity. I hope Deborah Majoras will testify at the hearing to be held the first week in October on the Frist-Wyden legislation to tackle this serious problem of obesity.

But I come to the floor to say one reason I will continue the public hold I have on the Majoras appointment is that as she works on the important issue of obesity, she also needs to turn her attention to those oil companies feeding off American consumers' hard-earned money. As far as we know today, on her watch it is going to be business as usual in the gasoline market, with more oil company mergers, more concentration of oil and gas industries and higher gasoline prices for consumers at the pump. In my view, it is hard to find a more important consumer protection issue that the Federal Trade Commission has a responsibility for than overseeing competitive prices in our gasoline markets. High gasoline prices act like a tax on the consumers that reduces their purchasing power.

On average, gasoline prices are 20 cents a gallon higher than they were at this time last year. These higher prices mean a typical family is spending $600 more this year to fill the gas tanks in their car than they were a year ago.

Despite the urging that I and other colleagues have done, it has been hard to see the administration take any action to give the consumer a break from these record-high gasoline prices they have been paying throughout the year. I think it is interesting that there was a new development with respect to the Strategic Petroleum Reserve in the last 24 hours. In the last 24 hours, the administration announced it is negotiating to provide loans of oil from the Strategic Petroleum Reserve at the request of oil refiners to help keep their refineries supplied because of shortages of crude oil supplies in the Gulf of Mexico following the recent hurricanes.

I want to be clear. If there are significant supply shortages that can be relieved by the release of Strategic Petroleum Reserve oil, then I am all for making that oil available. That is what the Strategic Reserve was created to address. But I think it needs to be pointed out that this administration has a double standard with respect to using the Strategic Petroleum Reserve. They are willing to use the Strategic Petroleum Reserve to help big companies when they are in a jam, but they are not willing to use the Strategic Petroleum Reserve to help the little guy when the little guy is getting clobbered.

So I very much hope we will see a change in the administration's policies with respect to the Strategic Petroleum Reserve. Let's use it when we need to help companies, which seems to be the case with respect to the situation in the Gulf following the recent hurricanes. But let us not have a double standard that says we will use the Strategic Petroleum Reserve to help the big and powerful and sit on our hands when the little guy is getting hammered.

Let me close simply with one last point with respect to the role of the Federal Trade Commission. I intend to keep the public hold on the Majoras appointment for as long as it takes, until

that time when we see changes at the agency that will promote competition in our gasoline markets. Ms. Majoras has given no indication at her confirmation hearing or since then that she is going to change the Federal Trade Commission's oil companies' merger policies, which the GAO found in an independent review have increased gasoline prices for consumers.

Ms. Majoras didn't even believe high gasoline prices were enough of a problem for consumers to mention them in her opening statement at the confirmation hearings. When I and others pressed her at the hearing to say what she would do to protect consumers from higher gasoline prices, we were not given one example of how to address this urgent issue. She subsequently offered the committee a blueprint for inaction. Out of seven so-called commitments she wanted to make, three are a continuation of the status quo, and three essentially are public relations activities. Only one would involve something new--an investigation of a refinery closure using a subpoena, which is sort of like sending a search party after a horse that was turned loose years ago.

Since her recess appointment more than 4 weeks ago, Ms. Majoras has made it clear that protecting consumers from getting gouged at the gas pump is simply not a priority.

For these reasons, I have placed a public hold on the Majoras nomination. I intend to continue to object to any unanimous consent request for the Senate to consider this nomination, until we see that there are going to be some changes at the Federal Trade Commission to protect gasoline consumers, particularly the ones I represent on the west coast of the United States, who are now getting mugged at the gas pump.

I yield the floor.