Floor Statements

Mr. President, I am pleased today to introduce the Federal Agency Data-Mining Reporting Act of 2005. I want to thank Senator Sununu for cosponsoring this bill. He has consistently been a leader on privacy issues, and I am very pleased to work with him on this effort. I also want to thank Senators Leahy, Akaka, Jeffords and Wyden for their support of the bill.

The controversial data analysis technology known as data-mining is capable of reviewing millions of both public and private records on each and every American. The possibility of government law enforcement or intelligence agencies fishing for patterns of criminal or terrorist activity in these vast quantities of digital data raises serious privacy and civil liberties issues--not to mention questions about the effectiveness of these types of searches. But more than two years after Congress first learned about the Defense Department's program called Total Information Awareness, there is still much we do not know about the Federal government's other work on data-mining., We found out last year from a GAO report that there are 199 Federal data-mining programs, 122 of which rely on personal information and 29 of which are for the purpose of investigating terrorists or criminals, but we don't know the details of those programs. This is information we need to have. Congress should not be learning the details about data-mining programs after millions of dollars are spent testing or using data-mining against unsuspect- ing Americans.

Coupled with the expanded domestic surveillance already undertaken by this Administration, the unchecked, secret use of data-mining technology threatens one of the most important values that we are fighting for as we combat terrorism--freedom. My bill would require all Federal agencies to report to Congress within 90 days and every year thereafter data-mining programs developed or used to find a pattern indicating terrorist or other criminal activity and how these programs implicate the civil liberties and privacy of all Americans. If necessary, information in the various reports could be classified.

Let me clarify what this bill does not do. It does not have any effect on the government's use of commercial data to conduct individualized searches on people who are already suspects. It does not end funding for any program, determine the rules for use of data-mining technology, or threaten any ongoing investigation that uses data-mining technology.

My bill would simply provide Congress with information about the nature of the technology and the data that will be used. The Federal Agency Data-Mining Reporting Act would require all government agencies to assess the efficacy of the data-mining technology and whether the technology can deliver on the promises of each program. In addition, my bill would make sure that Congress knows whether the Federal agencies using data-mining technology have considered and developed policies to protect the privacy and due process rights of individuals.

With complete information about the current data-mining plans and practices of the Federal government, Congress will be able to conduct a thorough review of the costs and benefits of the practice of data- mining on a program-by-program basis and make considered judgments about which programs should go forward and which should not. Congress will also be able to evaluate whether new privacy rules are necessary.

Data-mining could rely on a combination of intelligence data and personal information like individuals' traffic violations, credit card purchases, travel records, medical records, communications records, and virtually any information contained in commercial or public databases. Congress must

conduct oversight to make sure that government agencies like the Department of Homeland Security, the Department of Justice, and the Department of Defense use these types of sensitive personal information appropriately.

Furthermore, data-mining is unproven in this area. The government argues that data-mining can help locate potential terrorists before they strike. But we do not, today, have evidence that data-mining will prevent terrorism. In fact, some technology experts have warned that data-mining is not the right approach for the terrorism problem. The financial world has successfully used data-mining to identify people committing fraud because it has data on literally millions, if not billions, of historical financial transactions. And the banks and credit card companies know, in large part, which of those past transactions have turned out to be fraudulent. So when they apply sophisticated statistical algorithms to that massive amount of historical data, they are able to make a pretty good guess about what a fraudulent transaction might look like in the future.

We do not have that kind of historical data about terrorists and sleeper cells. We have just a handful of individuals whose past actions can be analyzed, which makes it virtually impossible to apply the kind of advanced statistical analysis required to use data-mining in this way. That doesn't mean we should stop the Federal government from attempting to solve that problem, but it raises serious questions about whether data-mining will ever be able to locate an actual terrorist. Before the government starts reviewing personal information about every man, woman and child in this country, we should learn what data-mining can and can't do--and what limits and protections are needed.

We must also bear in mind that there will inevitably be errors in the underlying data. Everyone knows people who have had errors on their credit reports--and that is the one area of commercial data where the law already imposes strict accuracy requirements. Other types of commercial data are likely to be even more inaccurate. Even if the technology itself were effective, I am very concerned that innocent people could be ensnared because of mistakes in the data that make them look suspicious. The recent rise in identity theft, which creates even more data accuracy problems, makes it even more important that we address this issue.

Most Americans believe that their private lives should remain private. Data-mining programs run the risk of intruding into the lives of individuals who have nothing to do with terrorism or other criminal activity and understandably do not want their credit reports, shopping habits and doctor visits to become a part of a gigantic computerized search engine operating without any controls or oversight.

The Administration should be required to report to Congress about the impact of the various data-mining programs now underway or being studied, and the impact those programs may have on our privacy and civil liberties, so that Congress can determine whether the proposed benefits of this practice come at too high a price to our privacy and personal liberties.

I urge my colleagues to support this bill. All it asks for is information to which Congress and the American people are entitled.

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

Mr. President, I am pleased today to introduce the Federal Agency Data-Mining Reporting Act of 2005. I want to thank Senator Sununu for cosponsoring this bill. He has consistently been a leader on privacy issues, and I am very pleased to work with him on this effort. I also want to thank Senators Leahy, Akaka, Jeffords and Wyden for their support of the bill.

The controversial data analysis technology known as data-mining is capable of reviewing millions of both public and private records on each and every American. The possibility of government law enforcement or intelligence agencies fishing for patterns of criminal or terrorist activity in these vast quantities of digital data raises serious privacy and civil liberties issues--not to mention questions about the effectiveness of these types of searches. But more than two years after Congress first learned about the Defense Department's program called Total Information Awareness, there is still much we do not know about the Federal government's other work on data-mining., We found out last year from a GAO report that there are 199 Federal data-mining programs, 122 of which rely on personal information and 29 of which are for the purpose of investigating terrorists or criminals, but we don't know the details of those programs. This is information we need to have. Congress should not be learning the details about data-mining programs after millions of dollars are spent testing or using data-mining against unsuspect- ing Americans.

Coupled with the expanded domestic surveillance already undertaken by this Administration, the unchecked, secret use of data-mining technology threatens one of the most important values that we are fighting for as we combat terrorism--freedom. My bill would require all Federal agencies to report to Congress within 90 days and every year thereafter data-mining programs developed or used to find a pattern indicating terrorist or other criminal activity and how these programs implicate the civil liberties and privacy of all Americans. If necessary, information in the various reports could be classified.

Let me clarify what this bill does not do. It does not have any effect on the government's use of commercial data to conduct individualized searches on people who are already suspects. It does not end funding for any program, determine the rules for use of data-mining technology, or threaten any ongoing investigation that uses data-mining technology.

My bill would simply provide Congress with information about the nature of the technology and the data that will be used. The Federal Agency Data-Mining Reporting Act would require all government agencies to assess the efficacy of the data-mining technology and whether the technology can deliver on the promises of each program. In addition, my bill would make sure that Congress knows whether the Federal agencies using data-mining technology have considered and developed policies to protect the privacy and due process rights of individuals.

With complete information about the current data-mining plans and practices of the Federal government, Congress will be able to conduct a thorough review of the costs and benefits of the practice of data- mining on a program-by-program basis and make considered judgments about which programs should go forward and which should not. Congress will also be able to evaluate whether new privacy rules are necessary.

Data-mining could rely on a combination of intelligence data and personal information like individuals' traffic violations, credit card purchases, travel records, medical records, communications records, and virtually any information contained in commercial or public databases. Congress must

conduct oversight to make sure that government agencies like the Department of Homeland Security, the Department of Justice, and the Department of Defense use these types of sensitive personal information appropriately.

Furthermore, data-mining is unproven in this area. The government argues that data-mining can help locate potential terrorists before they strike. But we do not, today, have evidence that data-mining will prevent terrorism. In fact, some technology experts have warned that data-mining is not the right approach for the terrorism problem. The financial world has successfully used data-mining to identify people committing fraud because it has data on literally millions, if not billions, of historical financial transactions. And the banks and credit card companies know, in large part, which of those past transactions have turned out to be fraudulent. So when they apply sophisticated statistical algorithms to that massive amount of historical data, they are able to make a pretty good guess about what a fraudulent transaction might look like in the future.

We do not have that kind of historical data about terrorists and sleeper cells. We have just a handful of individuals whose past actions can be analyzed, which makes it virtually impossible to apply the kind of advanced statistical analysis required to use data-mining in this way. That doesn't mean we should stop the Federal government from attempting to solve that problem, but it raises serious questions about whether data-mining will ever be able to locate an actual terrorist. Before the government starts reviewing personal information about every man, woman and child in this country, we should learn what data-mining can and can't do--and what limits and protections are needed.

We must also bear in mind that there will inevitably be errors in the underlying data. Everyone knows people who have had errors on their credit reports--and that is the one area of commercial data where the law already imposes strict accuracy requirements. Other types of commercial data are likely to be even more inaccurate. Even if the technology itself were effective, I am very concerned that innocent people could be ensnared because of mistakes in the data that make them look suspicious. The recent rise in identity theft, which creates even more data accuracy problems, makes it even more important that we address this issue.

Most Americans believe that their private lives should remain private. Data-mining programs run the risk of intruding into the lives of individuals who have nothing to do with terrorism or other criminal activity and understandably do not want their credit reports, shopping habits and doctor visits to become a part of a gigantic computerized search engine operating without any controls or oversight.

The Administration should be required to report to Congress about the impact of the various data-mining programs now underway or being studied, and the impact those programs may have on our privacy and civil liberties, so that Congress can determine whether the proposed benefits of this practice come at too high a price to our privacy and personal liberties.

I urge my colleagues to support this bill. All it asks for is information to which Congress and the American people are entitled.

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

Mr. President, I rise to oppose the confirmation of John

Bolton to be the next U.S. ambassador to the United Nations. I do not take this decision lightly. As the Senator from Virginia just pointed out, when Mr. Bolton's nomination was first announced, my vote was by no means a foregone conclusion. In fact, in 2001, when the Senate Foreign Relations Committee considered the nomination of Mr. Bolton to be the Under Secretary of State for Arms Control and International Security, I parted company from my Democratic colleagues on the committee to vote in favor of his nomination both in committee and on the floor.

I did so because I generally believed, as the Senator from Virginia said, that the President has the right to choose executive branch nominees who share his overall world view, even when I do not share that world view. Barring serious ethical lapses or a clear lack of appropriate qualifications for a given job, I tend to give the President a great deal of latitude in making these appointments.

But after examining the record, I have concluded that Mr. Bolton is fundamentally unsuited for the job to which he has been nominated. His blatant hostility toward the institution at which he would serve and his history of pursuing his personal policy agenda while holding public office lead me to question whether Mr. Bolton's appointment as our ambassador to the United Nations would serve the interests of the United States.

I share the views of many who are insisting on reform at the U.N. The U.N. must become more effective and more accountable and, as stewards of the American taxpayers' dollars, we must insist on this point. But Mr. Bolton's record suggests that his personal animosity toward the United Nations is so great that he cannot effectively lead the charge for reforms that can make this vital, but deeply flawed, institution stronger and more effective.

He seems to view the U.N. as an instrument to be used when it suits only our immediate interests but one best ignored or even undermined the rest of the time. His failure to grasp the give and take required for effective multilateralism makes him a real obstacle to any hope of pursuing vital long-term U.S. interests and increasing burden sharing and marshaling a global force strong enough to defeat the terrorist networks that seek to do us harm.

Mr. Bolton's record also reveals many instances of intemperance and rash decisionmaking. At least two senior intelligence officials told committee staff that Bolton's draft testimony prepared for a House hearing on Syria in 2003 went well beyond what the intelligence community would clear or could clear. This wasn't a case in which State Department intelligence analysts alone had concerns about Bolton's proposed language. The CIA, the Department of Energy, and the Defense Intelligence Agency all objected. According to interviews conducted by the committee staff, Bolton's office pushed back, resisting the intelligence community's efforts to alter problematic provisions. Bolton was determined to be such a loose cannon that the Deputy Secretary of State instituted an extraordinary policy to address the problem, requiring all of Mr. Bolton's public presentations to be cleared by Larry Wilkerson, Secretary Powell's Chief of Staff, or Deputy Secretary Armitage himself.

Regrettably, I do not have confidence that his personal agenda would always, as it must be, subordinated to that of the Secretary of State who, in testimony before this committee in her first days in office, has placed such a premium on restoring frayed diplomatic ties.

In addition, information that came to light during the Senate Foreign Relation Committee's consideration of this nomination indicates that John Bolton has sought to punish intelligence analysts whose assessments did not support what Mr. Bolton wanted to say or wished to say. After all that has happened to our country's reputation and credibility in recent years, we cannot afford to tolerate, let alone promote, a policymaker who seeks to silence dissent from the intelligence community. What the committee found was not that Mr. Bolton made careless remarks in the heat of a tough bureaucratic dispute; the evidence shows that over a period of many months, Mr. Bolton repeatedly sought the removal of a respected intelligence analyst at the State Department who had raised concerns about language Mr. Bolton wished to use publicly, in the course of the standard clearance process, a process that is there to protect against misleading or inaccurate public characterizations of important security issues. And Mr. Bolton repeatedly sought the removal of the National Intelligence Officer for Latin America, again pursuing this vendetta for months, not heated minutes, and going so far as to consider blocking country clearance for Mr. Smith to travel abroad. In both cases, the offense that so incensed Mr. Bolton appears to be that the analysts did their jobs--they presented the facts as they saw them, and declined to keep silent when the facts did not support what Mr. Bolton wished to say. And in both cases, senior officials with decades of experience in government who were involved in these episodes told committee staff that Bolton's actions--his attempts to retaliate against these analysts--were absolutely extraordinary.

In addition to these disturbing incidents, other interviews conducted by committee staff revealed a broader pattern of attempting to simply cut those who disagreed with his policy views, or those who he believed disagreed with his policy views, out of the policy-making process entirely. John Wolf, the former Assistant Secretary of State for Non- Proliferation, told committee staff that Bolton attempted to retaliate against at least two public servants in the non-proliferation bureau because of differences in their policy views. Mr. Bolton tried to remove a State Department attorney from a case relating to a sanctions issue because of perceived policy disagreements--the record suggests that Mr. Bolton actually misunderstood where the lawyer in question stood--and went so far as to suggest that he would not work with the State Department's entire legal bureau on the matter from that point on--a declaration quickly negated by Deputy Secretary Armitage, who felt compelled to remind Bolton that as a State Department official, he would indeed be working with the State Department's lawyers. This kind of tunnel-vision, everyone-else-out-of-the-room approach was summed up by Secretary of State Powell's Chief of Staff Larry Wilkerson, who told the committee staff, ``when people ignore diplomacy that is aimed at dealing with [North Korea's nuclear weapons development] in order to push their pet rocks in other areas, it bothers me, as a diplomat, and as a citizen of this country.'' When asked specifically if he thought that Mr. Bolton had done that, Wilkerson said, ``Absolutely.'' Mr. Wilkerson ended his interview with the committee with the following:

I would like to make just one statement. I don't have a

large problem with Under Secretary Bolton serving our

country. My objections to what we've been talking about

here--that is, him being our ambassador at the United

Nations--stem from two basic things. One, I think he's a

lousy leader. And there are 100 to 150 people up there that

have to be led; they have to be led well, and they have to be

led properly. And I think, in that capacity, if he goes up

there, you'll see the proof of the pudding in a year. Second,

I differ from a lot of people in Washington, both friend and

foe of Under Secretary Bolton, as to his, ``brilliance''. I

didn't see it. I saw a man who counted beans, who said, ``98

today, 99 tomorrow, 100 the next day,'' and had no

willingness--and, in many cases, no capacity--to understand

the other things that were happening around those beans. And

that is just a recipe for problems at the United Nations. And

that's the only reason that I said anything.

Some have suggested that, because Mr. Bolton did not succeed in his attempts to end the careers of analysts whose dissenting views angered him, and because he did not succeed in his attempts to manipulate the government's processes to shut out voices of disagreement, caution, or dissent, there is no problem here. I cannot believe that any of my colleagues actually believes that is true--not after all that we have learned about the vital importance of dissent in the intelligence community from the 9/11 Commission, the Silberman-Robb Commission, and numerous other investigations into the major intelligence failures that have gravely harmed our credibility and our security over the past years. Why would we choose to promote to a position of prominence and trust an individual who has repeatedly tried to suppress inconvenient

analysis? As the former Chairman of the National Intelligence Council told the committee staff, politicization ``even when it's successfully resisted, it doesn't mean that there hasn't been an effect, because it creates a climate of intimidation and a culture of conformity that is damaging.'' Carl Ford told this committee about his concerns of a ``chilling effect'' that Bolton's actions with regard to Mr. Westermann could have on all of the analysts in the department's intelligence analysis bureau. And Mr. Westermann told the committee staff that in the wake of his run in with Mr. Bolton, ``I was concerned that I had to spend time thinking about how I was approaching issues so that I didn't step on a landmine.'' Attempting to undermine important clearance processes, attempting to run roughshod over the safeguards in place to protect U.S. credibility, is an awfully big problem, whether or not the attempt was successful. It is, in my view, a disqualifying problem.

Finally, Mr. President, I urge my colleagues to examine the record of the Foreign Relations Committee's consideration of this nomination. It raises very serious concerns regarding Mr. Bolton's understanding of his obligations to be forthcoming with this committee. Several of Mr. Bolton's answers to Senators' questions were misleading at best, and several were quite blatantly non-responsive. A number of these instances relate to Mr. Bolton's efforts to retaliate against intelligence analysts, and these are detailed in the minority report on this nominee. But others relate to more general foreign policy issues. The Bush administration's first Ambassador to South Korea, Tom Hubbard, was so troubled by Mr. Bolton's misleading characterization of Mr. Hubbard's role in approving a controversial speech that Mr. Bolton gave in Seoul that he felt obligated to contact the committee to correct the record.

In light of the evidence this committee has seen in recent weeks, most of us can probably agree that if Mr. Bolton does end up being our next Ambassador to the UN, extremely careful oversight will be required. But our oversight responsibilities depend, in many instances, on the executive branch officials who come before us understanding that they have a constitutional obligation to be forthcoming with Congress. The record that he has amassed during this confirmation process gives me no confidence that Mr. Bolton intends to adhere to this obligation.

Mr. Bolton's nomination raises fundamental questions regarding both credibility and accountability. The credibility of our representation at the UN, the credibility of intelligence, the credibility of the oversight process are at stake. And the question of whether or not this committee will hold officials who seek to suppress dissent accountable for their actions is before us today as well.

I deeply appreciate the extraordinary courage of the many people who came forward to share with the Foreign Relations Committee their own concerns about Mr. Bolton's fitness for the UN post or to correct inaccuracies in the record--in some cases at real risk to their own careers. I am grateful for their efforts, and deeply appreciate their honesty. I hope that my colleagues will consider their words carefully. Their statements came at a price to them, and they should not be ignored.

In contrast to these admirable public servants--many of whom, by the way, I would likely disagree with on any number of important policy issues--the administration has failed to be forthcoming in this process. Mr. President, I share the concerns that have been expressed by some of my colleagues on the Committee regarding the administration's failure to respond satisfactorily to requests for documents and information relating to this confirmation. The administration declined to produce requested documents and information, apparently because they do not believe the requested information is relevant. Quite frankly, that is not for the administration to determine. Not only does the administration's rationale fail to respect the Congress as a co-equal branch of Government, it also speaks of bad faith and contempt for the role of Congress in the confirmation process.

Finally, Mr. President, during the committee's consideration of this nomination, Senator Sarbanes reminded all of us of the history of the position of the United States Ambassador to the United Nations. He listed the names of all 24 public servants who have held the office. Twenty-two of those twenty four were confirmed by unanimous consent, or with unanimous votes, or with voice votes. One was confirmed by a vote of 89 to 3. The most controversial Ambassador in our history was confirmed by a vote of 81-16. We have been represented by some very direct, opinionated, colorful characters at the United Nations. But we have never sent a figure so polarizing, or one with credibility so tattered, as the nominee before us today. John Bolton does not have the support of a single Democrat on the Senate Foreign Relations Committee. He does not have the support of a majority of that committee. I do not understand why the administration is insisting upon thrusting such a troubled nominee into such a sensitive and important post. From achieving real reform of the UN to rebuilding US credibility to creating a solid global coalition to combat terrorism, the stakes at the UN are as high as they have ever been. If the President had chosen a public servant of impeccable judgment, the committee and the Senate would have rallied around that selection, eager to work in partnership with a nominee capable of, and committed to, mending frayed relationships, encouraging real burden-sharing, and nurturing a strong international coalition to fight terrorism and the proliferation of weapons of mass destruction. John Bolton is not that nominee. I urge my colleagues to reject this nomination, and let us work together to quickly confirm a different nominee--one who represents the President's views but also has the skills, the record, and the confidence of the Senate required to be an effective ambassador. We can do, and we should do, much better than John Bolton.

I yield the floor.

Mr. President, today I am introducing a measure aimed at curbing wasteful spending. In the face of our ever growing Federal deficit, we must prioritize and eliminate programs that can no longer be sustained with limited Federal dollars, or where a more cost- effective means of fulfilling those functions can be substituted. The measure that I introduce today establishes a means test for large agribusinesses receiving subsidized water from the Bureau of Reclamation.

The irrigation means test provision is drawn from legislation that I have sponsored in previous Congresses to reduce the amount of Federal irrigation subsidies received by large agribusiness interests. I believe that reforming Federal water pricing policy by reducing subsidies is important as a means to achieve our broader objectives of achieving a truly balanced budget. This legislation is also needed to curb fundamental abuses of reclamation law that cost the taxpayer millions of dollars every year.

In 1901, President Theodore Roosevelt proposed legislation, which came to be known as the Reclamation Act of 1902, to encourage development of family farms throughout the western United States. The idea was to provide needed water for areas that were otherwise dry and give small farms, those no larger than 160 acres, a chance, with a helping hand from the Federal Government, to establish themselves. According to a 1996 General Accounting Office report, since the passage of the Reclamation Act, the Federal Government has spent $21.8 billion to construct 133 water projects in the west to provide water for irrigation. Agribusinesses, and other project beneficiaries, are required under the law to repay to the Federal Government their allocated share of the costs of constructing these projects.

As a result of the subsidized financing provided by the Federal Government, however, some of the beneficiaries of Federal water projects repay considerably less than their full share of these costs. According to the 1996 GAO report, agribusinesses generally receive the largest amount of federal financial assistance. Since the initiation of the irrigation program in 1902, construction costs associated with irrigation have been repaid without interest. The GAO further found, in reviewing the Bureau of Reclamation's financial reports, that $16.9 billion, or 78 percent, of the $21.8 billion of Federal investment in water projects is considered to be reimbursable. Of the reimbursable costs, the largest share, $7.1 billion, is allocated to irrigation interests. GAO also found that the Bureau of Reclamation will likely shift $3.4 billion of the debt owed by agribusinesses to other users of the water projects for repayment.

There are several reasons why large agribusinesses continue to receive such significant subsidies. Under the Reclamation Reform Act of 1982, Congress acted to expand the size of the farms that could receive subsidized water from 160 acres to 960 acres. The RRA of 1982 expressly prohibits farms that exceed 960 acres in size from receiving federally subsidized water. These restrictions were added to the Reclamation law to close loopholes through which Federal subsidies were flowing to large agribusinesses rather than the small family farmers that Reclamation projects were designed to serve. Agribusinesses were expected to pay full cost for all water received on land in excess of their 960 acre entitlement.

Despite the express mandate of Congress, regulations promulgated under the Reclamation Reform Act of 1982 have failed to keep big agricultural water users from receiving Federal subsidies. The General Accounting Office and the Inspector General of the Department of the Interior continue to find that the acreage limits established in law are circumvented through the creation of arrangements such as farming trusts. These trusts, which in total acreage well exceed the 960 acre limit, are comprised of smaller units that are not subject to the reclamation acreage cap. These smaller units are farmed under a single management agreement often through a combination of leasing and ownership.

The Department of the Interior has acknowledged that these trusts exist. Interior published a final rulemaking in 1998 to require farm operators who provide services to more than 960 nonexempt acres westwide, held by a single trust or legal entity or any combination of trusts and legal entities, to submit RRA forms to the district(s) where such land is located. Water districts are now required to provide specific information about farm operators to Interior annually. This information is an important step toward enforcing the legislation that I am reintroducing today.

A recent report by the Environmental Working Group examined water

subsidies in the Central Valley Project (CVP) of California and it provides further evidence that this legislation is long overdue. According to EWG, in 2002, the largest 10 percent of the farms in the area got 67 percent of the water, for an average subsidy worth up to $349,000 each at market rates for replacement water. Twenty-seven large farms received subsidies each worth $1 million or more at market rates. Yet, the median subsidy for a Central Valley farmer in 2002 was $7,076 a year, almost 50 times less than the largest 10 percent of farms. One farm in Fresno County received more water by itself than 70 CVP water user districts. Its subsidy alone was worth $4.2 million a year at market rates.

This analysis is significant because the Bureau of Reclamation program is supposed to help small farmers, not large agribusinesses. The CVP analysis is also important because CVP farmers get about one- fifth of all the water used in California, at rates that by any measure are far below market value. In 2002, for example, the average price for irrigation water from the CVP was less than 2 percent what Los Angeles residents pay for drinking water, one-tenth the estimated cost of replacement water supplies, and about one-eighth what the public pays to buy its own water back to restore the San Francisco Bay and Delta. Meanwhile, many citizens in living in the CVP do not have access to clean, safe drinking water. Unfortunately, this situation is pervasive in many other Western communities.

My legislation combines various elements of proposals introduced by other members of Congress to close loopholes in the 1982 legislation and to impose a $500,000 means test. This new approach limits the amount of subsidized irrigation water delivered to any operation in excess of the 960 acre limit that claimed $500,000 or more in gross income, as reported on its most recent IRS tax form. If the $500,000 threshold were exceeded, an income ratio would be used to determine how much of the water should be delivered to the user at the full-cost rate, and how much at the below-cost rate. For example, if a 961 acre operation earned $1 million, a ratio of $500,000, the means-test value, divided by its gross income would determine the full cost rate. Thus the water user would pay the full cost rate on half of their acreage and the below-cost rate on the remaining half.

This means-testing proposal was featured in the 2000 Green Scissors report. This report is compiled annually by Friends of the Earth and Taxpayers for Common Sense and supported by a number of environmental, consumer and taxpayer groups. The premise of the report is that there are a number of subsidies and projects that could be cut to both reduce the deficit and benefit the environment. The Green Scissors recommendation on means-testing water subsidies indicates that if a test is successful in reducing subsidy payments to the highest grossing 10 percent of farms, then the federal government would recover between $440 million and $1.1 billion per year, or at least $2.2 billion over 5 years.

When countless Federal programs are subjected to various types of means tests to limit benefits to those who truly need assistance, it makes little sense to continue to allow large business interests to dip into a program intended to help small entities struggling to survive. Taxpayers have legitimate concerns when they learn that their hard- earned tax dollars are being expended to assist large corporate interests in select regions of the country, particularly in tight budgetary times.

I urge Congress to act swiftly to save money for the taxpayers.

Mr. President, today I am introducing a measure aimed at curbing wasteful spending. In the face of our ever growing Federal deficit, we must prioritize and eliminate programs that can no longer be sustained with limited Federal dollars, or where a more cost- effective means of fulfilling those functions can be substituted. The measure that I introduce today establishes a means test for large agribusinesses receiving subsidized water from the Bureau of Reclamation.

The irrigation means test provision is drawn from legislation that I have sponsored in previous Congresses to reduce the amount of Federal irrigation subsidies received by large agribusiness interests. I believe that reforming Federal water pricing policy by reducing subsidies is important as a means to achieve our broader objectives of achieving a truly balanced budget. This legislation is also needed to curb fundamental abuses of reclamation law that cost the taxpayer millions of dollars every year.

In 1901, President Theodore Roosevelt proposed legislation, which came to be known as the Reclamation Act of 1902, to encourage development of family farms throughout the western United States. The idea was to provide needed water for areas that were otherwise dry and give small farms, those no larger than 160 acres, a chance, with a helping hand from the Federal Government, to establish themselves. According to a 1996 General Accounting Office report, since the passage of the Reclamation Act, the Federal Government has spent $21.8 billion to construct 133 water projects in the west to provide water for irrigation. Agribusinesses, and other project beneficiaries, are required under the law to repay to the Federal Government their allocated share of the costs of constructing these projects.

As a result of the subsidized financing provided by the Federal Government, however, some of the beneficiaries of Federal water projects repay considerably less than their full share of these costs. According to the 1996 GAO report, agribusinesses generally receive the largest amount of federal financial assistance. Since the initiation of the irrigation program in 1902, construction costs associated with irrigation have been repaid without interest. The GAO further found, in reviewing the Bureau of Reclamation's financial reports, that $16.9 billion, or 78 percent, of the $21.8 billion of Federal investment in water projects is considered to be reimbursable. Of the reimbursable costs, the largest share, $7.1 billion, is allocated to irrigation interests. GAO also found that the Bureau of Reclamation will likely shift $3.4 billion of the debt owed by agribusinesses to other users of the water projects for repayment.

There are several reasons why large agribusinesses continue to receive such significant subsidies. Under the Reclamation Reform Act of 1982, Congress acted to expand the size of the farms that could receive subsidized water from 160 acres to 960 acres. The RRA of 1982 expressly prohibits farms that exceed 960 acres in size from receiving federally subsidized water. These restrictions were added to the Reclamation law to close loopholes through which Federal subsidies were flowing to large agribusinesses rather than the small family farmers that Reclamation projects were designed to serve. Agribusinesses were expected to pay full cost for all water received on land in excess of their 960 acre entitlement.

Despite the express mandate of Congress, regulations promulgated under the Reclamation Reform Act of 1982 have failed to keep big agricultural water users from receiving Federal subsidies. The General Accounting Office and the Inspector General of the Department of the Interior continue to find that the acreage limits established in law are circumvented through the creation of arrangements such as farming trusts. These trusts, which in total acreage well exceed the 960 acre limit, are comprised of smaller units that are not subject to the reclamation acreage cap. These smaller units are farmed under a single management agreement often through a combination of leasing and ownership.

The Department of the Interior has acknowledged that these trusts exist. Interior published a final rulemaking in 1998 to require farm operators who provide services to more than 960 nonexempt acres westwide, held by a single trust or legal entity or any combination of trusts and legal entities, to submit RRA forms to the district(s) where such land is located. Water districts are now required to provide specific information about farm operators to Interior annually. This information is an important step toward enforcing the legislation that I am reintroducing today.

A recent report by the Environmental Working Group examined water

subsidies in the Central Valley Project (CVP) of California and it provides further evidence that this legislation is long overdue. According to EWG, in 2002, the largest 10 percent of the farms in the area got 67 percent of the water, for an average subsidy worth up to $349,000 each at market rates for replacement water. Twenty-seven large farms received subsidies each worth $1 million or more at market rates. Yet, the median subsidy for a Central Valley farmer in 2002 was $7,076 a year, almost 50 times less than the largest 10 percent of farms. One farm in Fresno County received more water by itself than 70 CVP water user districts. Its subsidy alone was worth $4.2 million a year at market rates.

This analysis is significant because the Bureau of Reclamation program is supposed to help small farmers, not large agribusinesses. The CVP analysis is also important because CVP farmers get about one- fifth of all the water used in California, at rates that by any measure are far below market value. In 2002, for example, the average price for irrigation water from the CVP was less than 2 percent what Los Angeles residents pay for drinking water, one-tenth the estimated cost of replacement water supplies, and about one-eighth what the public pays to buy its own water back to restore the San Francisco Bay and Delta. Meanwhile, many citizens in living in the CVP do not have access to clean, safe drinking water. Unfortunately, this situation is pervasive in many other Western communities.

My legislation combines various elements of proposals introduced by other members of Congress to close loopholes in the 1982 legislation and to impose a $500,000 means test. This new approach limits the amount of subsidized irrigation water delivered to any operation in excess of the 960 acre limit that claimed $500,000 or more in gross income, as reported on its most recent IRS tax form. If the $500,000 threshold were exceeded, an income ratio would be used to determine how much of the water should be delivered to the user at the full-cost rate, and how much at the below-cost rate. For example, if a 961 acre operation earned $1 million, a ratio of $500,000, the means-test value, divided by its gross income would determine the full cost rate. Thus the water user would pay the full cost rate on half of their acreage and the below-cost rate on the remaining half.

This means-testing proposal was featured in the 2000 Green Scissors report. This report is compiled annually by Friends of the Earth and Taxpayers for Common Sense and supported by a number of environmental, consumer and taxpayer groups. The premise of the report is that there are a number of subsidies and projects that could be cut to both reduce the deficit and benefit the environment. The Green Scissors recommendation on means-testing water subsidies indicates that if a test is successful in reducing subsidy payments to the highest grossing 10 percent of farms, then the federal government would recover between $440 million and $1.1 billion per year, or at least $2.2 billion over 5 years.

When countless Federal programs are subjected to various types of means tests to limit benefits to those who truly need assistance, it makes little sense to continue to allow large business interests to dip into a program intended to help small entities struggling to survive. Taxpayers have legitimate concerns when they learn that their hard- earned tax dollars are being expended to assist large corporate interests in select regions of the country, particularly in tight budgetary times.

I urge Congress to act swiftly to save money for the taxpayers.

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

Mr. President, I voted no on cloture, and I will vote no on the nomination of Priscilla Owen to be a judge on the U.S. Circuit Court of Appeals for the Fifth Circuit Court. I would like to take a few minutes today to explain my votes. I also would like to make a few comments on the events that led up to these votes.

I strongly oppose the threat of the nuclear option. I believe this was an illegitimate tactic, a partisan abuse of power that was a threat to the Senate as an institution and to the country. Attempting to blackmail the minority into giving up their rights that have been part of the Senate's traditions and practices for centuries was a new low for a majority that has repeatedly been willing to put party over principle. Unfortunately, the blackmail was partially successful. While I do applaud the efforts of the Senators who worked hard to broker an agreement, the end result is that three nominees who do not deserve lifetime appointments to the judiciary will now be confirmed.

The agreement reached by our colleagues states that filibusters should be reserved for extraordinary circumstances. For me, that has always been the test. I think Democrats have stuck to that standard in blocking just 10--just 10--out of the 218 nominations of President Bush that have been brought to the floor. A number of very conservative and very controversial nominees have been confirmed by the Senate. Jeffrey Sutton, now a judge on the Sixth Circuit, was confirmed by a vote of 52 to 41. No filibuster was used there. Jay Bybee, the author of the infamous torture memo, now sits on the Ninth Circuit. He was not filibustered. Michael McConnell, a very conservative and anti-choice law professor, often mentioned as a possible Supreme Court nominee, was confirmed for the Tenth Circuit. He was not filibustered. Dennis Shedd was confirmed to the Fourth Circuit by a vote of 55 to 44. He could have been filibustered, but he was not filibustered.

The idea that the filibuster has been used over the past several years as a tool to block all the nominees that the minority opposed is ludicrous. There were, and there continue to be, very good reasons to block a certain small number of nominees. Nothing that occurred last night changed that one iota. I will continue to vote against cloture only in extraordinary circumstances. I did that when we voted on cloture on the Owen nomination in 2003 and each subsequent time, and I have done that again today. For the majority to have created this constitutional crisis over what came down to five nominees was wrong, was an abuse of power. The American people did not support it, and I do not think they will support it in the future.

With respect to the Owen nomination, there are a number of factors that I believe require us to give this nomination very careful consideration. First, we should consider that judges on our courts of appeal have an enormous influence on the law. Whereas, decisions of the district courts are always subject to appellate review, the decisions of the courts of appeals are only subject to discretionary review by the Supreme Court. The decisions of the courts of appeal are, in almost all cases, final, as the Supreme Court agrees to hear only a very small percentage of the cases on which its views are sought. That means that the scrutiny we give to circuit court nominees must be greater than that we give to district court nominees. And then, of course, the scrutiny we give to Supreme Court nominees will even be greater.

Another important consideration is the ideological balance of the Fifth Circuit. The Fifth Circuit is comprised of Texas, Louisiana, and Mississippi. The Fifth Circuit contains the highest percentage of minority residents, over 40 percent of any circuit other than the DC Circuit. It is a court that, during the civil rights era, issued some of the most significant decisions supporting the rights of African- American citizens to participate as full members of our society.

As someone who believes strongly in freedom, liberty, and equal justice under law and the important role of the Federal courts to defend these fundamental American principles, I am especially concerned about the makeup of our circuit courts and their approaches to civil rights issues.

Even after 8 years of a Democratic President, the Fifth Circuit had twice as many Republican appointees as Democratic appointees. That is because during the last 6 years of the Clinton administration, the Judiciary Committee did not report out a single judge to the Fifth Circuit Court of Appeals. As we all know, that was not for a lack of nominees to consider. President Clinton nominated three well-qualified lawyers to the Fifth Circuit--Jorge

Rangel, Enrique Moreno, and Alston Johnson. None of these nominees even received a hearing before the committee.

Then-Chairman Leahy held a hearing in July 2001 on the nomination of Judge Edith Brown Clement for a seat on the Fifth Circuit only a few months after she was nominated and less than 2 months after Democrats took control of the Senate. It was the first hearing in the Judiciary Committee for a Fifth Circuit nominee since September 1994. And Judge Clement, of course, was confirmed later in the year.

The fact is, there is a history here and a special burden on President Bush to consult with our side on nominees for this circuit; otherwise, we will be simply rewarding the obstructionism that the President's party engaged in over the last 6 years of the Clinton administration by allowing him to fill, with his choices, seats that his party held open for years, even when qualified nominees were advanced by President Clinton.

I say, once again, my colleagues on the Republican side bear some responsibility for this situation. There was a time when I thought they might help resolve it by urging the administration to address the Senate's failure to take up Clinton nominees. This entire controversy over judges that has come to a head over the last several weeks could have been avoided if our Republican colleagues had convinced the President to renominate even a few of those Clinton nominees who never received a hearing or vote in the committee, including nominees to the Fifth Circuit. But, of course, that did not happen. There was no effort to reach a real compromise to take into account the concerns of all parties.

A compromise at the point of a gun is not a compromise. That, I'm afraid, is what we had last night.

With that background, let me outline the concerns that have caused me to reach the conclusion that Justice Owen should not be confirmed.

Justice Owen has had a successful legal career. She graduated at the top of her class from Baylor University Law School, worked as an associate and partner at the law firm of Andrews and Kurth in Houston, and has served on the Texas Supreme Court since January 1995. These are great accomplishments.

But Justice Owen's record as a member of the Texas Supreme Court leads me to conclude that she is not the right person for a position on the Fifth Circuit. I am not convinced that Justice Owen will put aside her personal views and ensure that all litigants before her on the Fifth Circuit received a fair hearing. Her decisions in cases involving consumers' rights, worker's rights, and reproductive rights suggest that she would be unable to maintain an open mind and provide all litigants a fair and impartial hearing.

Justice Owen has a disturbing record of consistently siding against consumers or victims of personal injury and in favor of business and insurance companies. When the Texas Supreme Court, which is a very conservative and pro- business court, rules in favor of consumers or victims of personal injury, Justice Owen frequently dissents. According to Texas Watch, during the period 1999 to 2002, Justice Owen dissented almost 40 percent of the time in cases in which a consumer prevailed. But in cases where the consumer position did not succeed, Justice Owen never dissented.

At her first hearing, Senator Kennedy and then-Senator Edwards asked Justice Owen to cite cases in which she dissented from the majority and sided in favor of consumers. Justice Owen could cite only one case, Saenz v. Fidelity Guaranty Insurance Underwriters. But Justice Owen's opinion in this case hardly took a pro-consumer position since it still would have deprived the plaintiff of the entire jury verdict. She did not join Justice Spector's dissent, which would have upheld the jury verdict in favor of Ms. Saenz.

Also during that first hearing, Senators Feinstein and Durbin questioned Justice Owen about Provident American Ins. Co. v. Castaneda. In that case, the plaintiff sought damages against a health insurer for denying health care benefits, after the insurer had already provided pre-operative approval for the surgery. Justice Owen, writing for the majority, reversed the jury's verdict in favor of the plaintiff and rejected the plaintiff's claim that the health insurer violated the Texas Insurance Code and the Deceptive Trade Practices Act. At the hearing, Justice Owen defended her opinion by saying that she believed that the plaintiff was seeking extra-contractual damages and that the plaintiff had already received full coverage under the policy and statutory penalties. But, in the words of her colleague, Justice Raul Gonzalez, who wrote a dissent, Justice Owen's opinion ``may very well eviscerate the bad-faith tort as a viable case of action in Texas.'' The cause of action for bad faith is designed to deter insurers from engaging in bad faith practices like denying coverage in the first place.

In addition, with respect to several decisions involving interpretation and application of the Texas parental notification law, I am deeply troubled by Justice Owen's apparently ignoring the plain meaning of the statute and injecting her personal beliefs concerning abortion that have no basis in Texas or U.S. Supreme Court law. In 2000, the Texas legislature enacted a parental notification law that allows a minor to obtain an abortion without notification of her parents if she demonstrates to a court that she has complied with one of three ``judicial bypass'' provisions: (1) that she is ``mature and sufficiently well informed'' to make the decision without notification to either of her parents; (2) that notification would not be in her best interest; or (3) that notification may lead to her physical, sexual, or emotional abuse.

During Justice Owen's first confirmation hearing, Senator Cantwell questioned Justice Owen about her positions in cases interpreting this law, focusing on Justice Owen's insistence in In re Jane Doe. In that case, a teenager is required to consider ``philosophic, social, moral, and religious'' arguments before seeking an abortion. In her opinion, Justice Owen cited the Supreme Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey to support her contention that States can require minors to consider religious views in their decision to have an abortion. But, as Senator Cantwell noted, Casey in no way authorizes States to require minors to consider religious arguments in their decision on whether to have an abortion. Upon this further questioning, Justice Owen then said that she was referring to another Supreme Court case, H.L. v. Matheson, even though her opinion only cited Casey for this proposition. And even Matheson does not say that minors can be required by State law to consider religious arguments. It is my view that Justice Owen was going beyond not only a plain reading of the Texas statute, but Supreme Court case law, and inappropriately injecting her own personal views to make it more difficult for a minor to comply with the statute and obtain an abortion.

I was also not satisfied with Justice Owen's responses to my questions about bonuses to Texas Supreme Court law clerks. I asked her at the hearing whether she saw any ethical concerns with allowing law clerks to receive bonuses from their prospective employers during their clerkships. I also explored the topic further with her in followup written questions. Justice Owen stated repeatedly in her written responses to my questions that she is not aware of law clerks actually receiving bonuses while they were employed by the court. She reaffirmed that testimony in her second hearing. This seems implausble given the great amount of publicity given to Ian investigation pursued by the Travis County attorney of exactly that practice and the well publicized modifications to the Texas Supreme Court's rules that resulted from that investigation and the accompanying controversy.

Even more disturbing, Justice Owen took the position, both at the first hearing and in her responses to written questions, that because the Texas Supreme Court Code of Conduct requires law clerks to recuse themselves from matters involving their prospective employers, there really is no ethical concern raised by law clerks accepting bonuses while employed with the court. I disagree. It is not sufficient for law clerks to recuse themselves from matters involving their prospective employers if they have received thousands of dollars in bonuses while they are working for the court. The appearance

of impropriety and unfairness that such a situation creates is untenable. As I understand it, the Federal courts have long prohibited Federal law clerks both from receiving bonuses during their clerkships and from working on cases involving their prospective employers. I am pleased that the Texas Supreme Court finally recognized this ethical problem and changed its code of conduct for clerks. Justice Owen, in contrast, seems intent on defending the prior, indefensible, practice.

Finally, I want to note the unusual nature of this particular nomination. Unlike so many nominees during the Clinton years, Justice Owen was considered in the Judiciary Committee under Senator Leahy's leadership in 2002. She had a hearing, and she had a vote. Her nomination was rejected. This has been the first time in history that a circuit nominee who was formally rejected by the committee, or the full Senate for that matter, has been renominated by the same President to the same position. I do not believe that defeated judicial nominations should be reconsidered like legislation that is not enacted. After all, legislation can be revisited after it is enacted. If Congress makes a mistake when it passes a law, it can fix that mistake in subsequent legislation. Let us all remember that judicial appointments are for life. Confirmations cannot be taken back or fixed. A vote to confirm a nominee is final. A vote to reject that nominee should be final as well. For the President to renominate a defeated nominee and the Senate to reconsider her simply because of the change of a few seats in an election cheapens the nomination process and the Senate's constitutional role in that process.

I believe Justice Owen is bright and accomplished, but I sincerely believe that based on her judicial record, Justice Owen is not the right choice for this position.

Mr. President, I ask unanimous consent that Avery Wentzel, a legal intern on my Senate Judiciary Committee staff, be granted the privilege of the floor during the debate on Justice Owen.

Mr. President, today the Senate will vote on final passage on the Senate version of H.R. 3, the SAFETEA bill. As we all know, the country has important transportation needs that Congress must address and I commend the managers of the bill for working hard to address highway construction, mass transit, highway safety and other important programs.

This is a very important bill and I am not taking my vote lightly. I have heard from numerous individuals and groups across Wisconsin who are opposed to another temporary extension and eager to have the certainty for planning purposes that comes with a full reauthorization. I understand their concerns and I share their desire that Congress provide necessary transportation funding. That is why I voted in favor of the motion to proceed to the bill and the motion to invoke cloture on the bill--because Congress needs to act on the country's transportation priorities. I wish I could vote for the bill. I would have voted for a bill that was equitable, even if it was not perfect. However, the current bill is far from equitable--in fact, it makes Wisconsin a double loser, both under the funding formula's rate of return and in the level of overall funding relative to the last bill, TEA-21. The bill does not

do nearly enough to help meet the transportation needs of my constituents in Wisconsin and, for that reason, I will vote against the bill.

Let me take a little time to explain my concerns with the bill, starting with the funding formula this bill would establish. Under that formula, certain States would continue to receive significantly more money than they pay into the highway trust fund, while other States continue to be denied their fair share. In fact, the number of donor States--or those who receive less than their fair share--would actually increase under this bill compared to the final year of TEA-21. In 2004 there were 27 donor States, while by the end of the new bill in 2009 there would be 31 States that pay more into the highway trust fund than they receive back. Six States--Iowa, Maine, Minnesota, New Hampshire, Oregon and Wisconsin--would become donors, while only Arkansas and Nebraska would leave that category.

I worked hard with the rest of the Wisconsin delegation during the last successful authorization to make sure that our State finally got a fair rate of return. Let me tell my colleagues, that change was long overdue. According to numbers from the Department of Transportation, from 1956 through 2000, Wisconsin got back just 90 cents on every dollar it paid into the trust fund.

In TEA-21, Wisconsin at last received a fair return. Unfortunately, this bill will take us back to where we were for the previous four decades--in the hole. Under the new formula, Wisconsin will once again be a donor State in 2006 and receive the bare minimum rate of return of 92 percent by the final year of the bill. I have spoken to other members of our State's delegation, and I think I can safely say we agree that Wisconsin deserves better.

It is bad enough that the bill would return Wisconsin to donor status. Adding insult to injury is the level of funding that this bill would provide for my State. This bill provides almost flat funding for Wisconsin, which we all know in real terms is a cut. In 2004 under TEA- 21, Wisconsin received $635 million, while the average spending under the current bill would only be $642.8 million per year. When these figures are adjusted for inflation, in real terms the bill means a reduction of over $35 million each year for Wisconsin, reducing our ability to meet our transportation needs--all while we become a donor State and again subsidize other States' transportation projects.

I cannot support a bill that treats Wisconsin so poorly with respect to both overall funding and the formula's rate of return. Fortunately, today's vote is not the final word on this bill. I will continue to work hard with the senior Senator from Wisconsin and the rest of the State's delegation to do everything that we can to produce a final transportation bill that is fair for our constituents.

Mr. President, I ask unanimous consent to speak such time as I may require.

Mr. President, I further ask that following my remarks, the Senator from Louisiana be recognized for her remarks.

Mr. President, it is not uncommon for Senators to stand in the Senate and tell their colleagues and the American people that an upcoming vote is one of the most important the Senate will ever take. We are the masters of hyperbole in this body, forever standing on the precipices and poised on the brink of momentous decisions.

But today, I think most will agree with me: We truly are at such a moment. The Senate is on the verge of making a decision with potentially enormous consequences for this institution and for the country and the people we serve. At stake is not just the fate of a handful of judicial nominations or of a future Supreme Court nomination, as important as they may be. No, the decisions made this week will resonate far beyond this Chamber and far beyond the current controversy.

I will speak today about how we arrived at this moment of great peril and how we might step back from the brink. I will speak about the consequences of the question that will apparently be put before the Senate prior to our next recess. I will speak today about principle and about power.

While they do not always attract a lot of public attention, traditional nominations are very important. We all know that. The judicial branch is a coequal branch of Government. The interpretation and enforcement of the laws we pass in Congress depend greatly on the men and women who serve as judges, and, of course, Federal judges serve lifetime appointments. Decisions made by the President and the Senate on judicial nominations have a long-term and long-lasting impact on the Nation.

Disputes over how the Senate should exercise its constitutional power of advice and consent on such nominations are as old as the Republic itself. Nominations have led to some of the most historic and divisive debates in this body, dating back to efforts to pack the courts with Federalist judges in the waning days of John Adams' Presidency. More recently, we had debates about Franklin Delano Roosevelt's court- packing plan in the late 1930s, the Abe Fortas nomination in the late 1960s, and Robert Bork in the late 1980s, to give a few examples.

Debate, even bitter partisan debate, over judicial nominations is nothing new. What is new is that the Senate is now poised to break with its rules and traditions. For the first time, the desire of one side to win nomination battles has become so intense and so unyielding that it threatens the very rules by which this Senate has operated for centuries.

In all of the previous controversies I have mentioned, which I think most serious students of Congress and the courts would agree were more significant than the current debate over a handful of circuit court judges, the rules of the Senate have allowed the battles to be fought fairly.

Only today, apparently, must those rules give way so one side can have its way. The majority leader and those who support his extraordinary plan to change the Senate rules by fiat seek to cloak their grab for power in the source of our Nation's loftiest principles, and that source is the Constitution.

This is not just a silly public relations effort to change the name of their plan from the nuclear option--the term coined by the majority leader's predecessor--because that term obviously fares rather poorly in the public opinion polls. It is actually a cynical effort to distract the public from the extraconstitutional nature of the plan by invoking the Constitution itself.

In the last Congress, as in this one, I served as the ranking member of the Senate Subcommittee on the Constitution. The subcommittee held a hearing in May 2003 with the grandiose title: ``Judicial Nominations, Filibusters, and the Constitution, When a Majority is Denied Its Right to Consent.'' The hearing was certainly interesting and provocative. I was there the whole time. No one made a convincing case that there is any such right in the Constitution anywhere.

Article II, section 2 spells out the Senate's role in nominations. It states, in relevant part, that the President ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.'' That is it. That is all it says. Some have managed to find in those few words a requirement that the Senate give all judicial nominees up-or-down votes. Even if someone isn't a strict constructionist, I can't for the life of me understand where they get that from. Where is it? Where is it in the language? Where is it in the Constitution?

It may be the policy they prefer, but it is not a constitutional argument. It is not a constitutional requirement. In fact, the only language in the Constitution that directly addresses the issue we are faced with today is the following from Article I, clause 5:

Each House may determine the Rules of its Proceedings . . .

The Senate has determined its rules, and its rules also provide the means for changing the rules, of course. The Senate is now being asked to change the rules by breaking the rules. There is no principle involved here. There is just power.

It is a shame that those who support the President's nominees have inflated what is essentially a political dispute to a constitutional debate. For those of us who take the Constitution seriously, it is jarring to hear colleagues suggesting that one is violating one's oath of office by voting not to end debate on a nomination.

As my colleagues know, I spent 7 years in this body fighting to pass a campaign finance reform bill. We had a majority here on that bill after a couple of years. That wasn't the issue. For years that effort had the support of a bipartisan majority of Senators, but it was stymied by filibusters. Senators who supported reform had many spirited, sometimes even bitter, debates with Senators who opposed our bill. But never did we contend our opponents on campaign finance reform were violating their oath of office by using every tool available to oppose a bill with which they strongly disagreed.

The Constitution does not prohibit opponents of a judicial nominee-- or any nominee, for that matter--from using a filibuster to block a final vote on the nominee. The majority does not have a constitutional right to confirm a nominee, and the nominee has no constitutional right to a vote. As the senior Senator from West Virginia said the other day: The Senate has often denied consent to a nominee in the past by simply refusing to schedule a final vote.

I have not always supported those actions, but I have not pretended they are unconstitutional.

If the arguments being advanced today by the Republican majority are correct, then the Republicans acted unconstitutionally in 1995 when they defeated the nomination of Henry Foster to be Surgeon General by using a filibuster. They violated the Constitution when they required cloture votes before ultimately confirming Stephen Breyer, Rosemary Burkett, H. Lee Sarokin, Richard Paez, and Marsha Berzon to circuit court judgeships, David Sacher to the Surgeon General's office, and Ricki Tigert to the FDIC, Walter Dellinger to the DOJ's Office of Legal Counsel, and the current Governor of Arizona, Janet Napolitano, to be U.S. Attorney. If the arguments being advanced today are correct, they violated their oaths of office when they forced the ambassadorial nomination of Sam Brown to be withdrawn because they refused to end debate on his nomination.

These are just the cases where a cloture vote was required to get a nomination through. I won't even start on the list of nominees who never even got a hearing or a vote in the Judiciary Committee or any kind of debate on the floor if they cleared committee. But there are dozens of them. Wasn't the majority denied its right to consent just as much in those cases? Is there any meaningful constitutional difference between a filibuster on the one hand and on the other hand a hold on the Senate floor or a wink and a nod between a committee chairman and a Member who just doesn't like a nominee? One could certainly argue the denial of consent by failing to schedule a hearing or a vote in committee is on even less firm constitutional ground than a filibuster because it allows just one Senator, the chairman of Judiciary Committee, to make the decision that the Senate's consent on a nominee will be withheld, whereas if all the Senators vote, a filibuster can be sustained only with 41 or more votes.

But there is no real argument that filibusters of judicial nominations are unconstitutional, just as blocking nominations in committee is not unconstitutional. There is no principle here that justifies eliminating the filibuster for judicial nominees who have lifetime appointments but leaves it intact for nominees to the executive branch who can only serve until the term of the appointing President ends at the latest.

There is no principle that can distinguish judicial nominations from legislation, which may also be passed by a majority, but can be amended or revoked by a majority in the same or later Congress as well. Again, the effort we are facing here is not based on principle, it is based on power. The lack of a constitutional basis for it is made even more clear by the specific plan that the majority leader spelled out in his press release last week.

He intends, according to that release, to ``seek a ruling from the Presiding Officer regarding the appropriate length of time for debate on such nominees.'' Seeking a ruling on how long we should debate? Surely the Presiding Officer cannot make that ruling on constitutional grounds, the idea of a constitutional time limit. What is the constitutional basis for ruling that the Senate can debate a nomination only for a particular length of time? Is the Presiding Officer going to opine that it is constitutional to debate a nomination for 100 hours, but unconstitutional for us to have 101 hours of debate? That would be absurd.

No, it appears that instead of following the existing precedents of the Senate, which state there is no dilatory rule except after cloture has been invoked, the Presiding Officer will just announce a new rule and the Senate will then debate and vote on an appeal of that ruling. If this happens, the rules of the Senate will be changed by fiat, by breaking the rules--not principle, power, the power of majority rule.

The Constitution did not set up the Senate to be a majoritarian body. That is why renaming the nuclear option as the constitutional option is so wrong. The Constitution allows citizens from smaller States who could be easily outvoted in a majoritarian legislature such as the House to have the same power in the Senate as citizens of larger States. This is not a minor provision, as the Presiding Officer knows. The Founders clearly didn't think so because--this is amazing--they made it the only provision in the Constitution that cannot be amended. No State can give up its equal representation in the Senate without its consent. You can't do a constitutional amendment to change that. They designed the Senate to be an important bulwark against majoritarian pressure.

The Senate rules from the very beginning, of course, have granted protections for the minority. There was no cloture rule at all until this century. The rule didn't cover nominations until 1949. While the cloture rule has changed over time--sometimes offering more protection to the minority and sometimes less--those rule changes have always been accomplished in accordance with the Senate rules until now, until the demand for power trumped principle.

The Framers intended the Senate to act as a check on the whims of the majority, not to facilitate them. I will not pretend the Senate has always been on the right side of history. At times, most notably during the great civil rights debates of the 1950s and 1960s, Senators used the powers given them to block vital, majority-supported legislation. But notwithstanding those dark moments, the Senate has also served throughout the history of this Republic as a place where individuals with different beliefs and goals were forced to come together to work for the common good.

By empowering the minority, the Framers created a body that has served this country well. To continue down the road we are on now will be to irretrievably change the very character of the Senate and irretrievably weaken the institution. Without the unique feature of extended debate, the Senate will be much less able to stand up to the President or to cool the passions of the explicitly majoritarian House.

I know my colleagues see themselves as guardians of this remarkable institution, as I do. When we leave the Senate--and some day, somehow or another, all of us will--it is our responsibility to ensure we do not leave this institution weakened. As Senators, we tend to see ourselves as pretty important, but none of us--and certainly no judicial nomination--is more important than the institution of the U.S. Senate itself.

Why is this extreme course necessary? Why are so many of our colleagues prepared to sacrifice the Senate's character and its special power? Why are they bent on giving up their own power as Senators?

Let me take a minute to respond to some of the charges made about the behavior of the minority that supposedly has given the majority no choice but to use this nuclear option. First, we are told using the filibuster to block a judicial nomination is unprecedented. As anyone who has studied the record knows, that is nonsense.

Most famously, the Fortas nomination was filibustered. The Senator who led that filibuster, Robert Griffin of Michigan, has tried to claim in recent days that it really wasn't a filibuster at all. But he said at the time:

It is important to realize that it has not been unusual for

the Senate to indicate its lack of approval for a nomination

by just making sure that it never came to a vote on the

merits. As I said, 21 nominations to the court have failed to

win Senate approval. But only nine of that number were

rejected on a direct, up-and-down vote.

We are told, however, that the Fortas nomination was different because there were Southern Democrats opposed to the nomination as well as Republicans. But what difference does that make? This debate is not about the rights of the minority party; it is about the rights of a minority of Senators. Does anyone really think that if one or a few of our Republican colleagues joined a filibuster against one of the handful of circuit court nominees that have been blocked, it would make a difference to the Senators who support the nominations and want to change the rules?

Fortas, of course, was a Supreme Court nominee, while the handful of nominees that have been blocked so far have been nominated to circuit courts. But there have been filibusters of circuit court nominees in the past as well, indeed in the very recent past. In 2000, cloture votes were held on two Clinton nominees to the Ninth Circuit, Marsha Berzo, and Richard Paez. The current majority leader himself voted against cloture on Judge Paez's nomination on March 8, 2000.

Apparently, these filibusters were different because they were unsuccessful. The handful of Democratic filibusters of President Bush's nominees are unprecedented, we are told, because the Republican filibusters of Richard Paez and Marsha Berzon didn't prevent them from being confirmed. Does anyone really think that if the current majority leader and the others who voted--against ending debate on the Paez nomination had convinced their colleagues to join them they would have then changed their votes the next time around to make sure that the principle of an up or down vote was maintained?

This is what now passes for debate and argument on the issue of so- called ``obstruction'' of President Bush's nominees. ``The filibusters are unprecedented,'' they say. Never mind that Republicans, including the majority leader, used the same tactic against nominees they opposed. ``Democratic obstruction of the President's nominations is unprecedented,'' we hear.

Never mind that the Senate approved 204 out of 214 nominations that came to the floor in President Bush's first term, but in the last 4 years of President Clinton's presidency, only 175 nominees were confirmed and 55 were blocked, including 20 circuit court nominees. Many of those nominees never even got a hearing in the Senate Judiciary Committee on which I sit.

Well, that was different, we are told, because President Bush's nominees have a majority of support in the Senate. But that distinction is nonsense as well. President Clinton's nominees had majority support, obviously. That is why they were held up in committee and never reached the floor, even for a cloture vote. Judge Paez, for example, was first nominated in January 1996. We finally confirmed him in March 2000. The vote on cloture was 85 to 14. The vote to confirm him was 59 to 39.

But one of the most foolish arguments we hear in support of the nuclear option is that there is a crisis in the courts because of the number of vacancies caused by Democratic filibusters. As of the end of President Bush's first term, during which the Senate confirmed 204 judges, there were only 27 vacancies on the Federal bench. The courts had their lowest vacancy rate since 1990. Five months into his second term, there are now 45 vacancies, but the President has made nominations for only 15 of them, one-third. For 30 vacancies there are no nominees. The vacancy rate is still very low historically. If there is a crisis now, which there isn't, it surely is not the Senate's fault.

There is no vacancy crisis. But we are about to be thrown into a constitutional crisis by a majority that is drunk with power. While there is plenty of blame to go around, the President precipitated this crisis. When he took office in 2001, he had an opportunity to end the bitterness that plagued judicial nominations over the previous decade by recognizing that an injustice had been done to a large number of Clinton nominees. Not an unconstitutional injustice, but an injustice nonetheless There were enough vacancies on the Federal appellate courts for him to name most of the judges but give a few seats to Clinton nominees who had been blocked, or to other nominees suggested by Democrats in those States. In his first group of nominations, which were almost all to the appellate courts, he made a nod in that direction by nominating Roger Gregory to the Fourth Circuit. President Clinton's nomination of Gregory, the first African-American to sit on that circuit, had been blocked in the Judiciary Committee. He was eventually confirmed by a 99-1 vote.

The hopes that the President would make good on his campaign promise to change the tone in Washington were short lived. He ignored pleas for consultation and conciliation on judicial nominations. Time after time, he has filled appellate court seats that had been kept vacant during the Clinton years with extremely conservative and often controversial nominees. Yet Democrats certainly didn't block all or even nearly a majority of those choices. Much to the displeasure of many of the groups on the left that work on nominations, Jeffrey Sutton and Deborah Cook now sit on the Sixth Circuit, Jay Bybee, who we later learned was the author of the infamous DOJ torture memo, is on the Ninth Circuit. Michael McConnell and Timothy Tymkovich are on the Tenth Circuit. In all, 35 of President Bush's nominations to the circuit courts have been confirmed, even though 9 of those seats became vacant during the Clinton years and were kept vacant by denying Clinton nominees an up or down vote.

Only seven judges were blocked because of their views or records. Three others were held up because of the particularly egregious tactics used to block Michigan nominees to the Sixth Circuit during the Clinton administration. The President has succeeded in reshaping the Federal courts to his liking. He may soon have one or even two Supreme Court nominations to make. He ought to be proud of and pleased with his accomplishments, but winning almost all the time apparently isn't enough. And in order to win every time, he is willing to push the Senate to upend over 200 years of tradition and precedent and perhaps permanently damage the comity on which this institution functions.

In the end, the seemingly insurmountable differences we have on judicial nominees can only be resolved the way that seemingly insurmountable differences are resolved on almost all other hotly contested issues in the Senate--through negotiation and compromise. Of course, for there to be compromise, both sides have to be willing to engage in that effort. The offers made by the majority leader thus far do not retain the unique and crucial feature of the current Senate rules--the right to unlimited debate. They amount to a slow motion nuclear option.

It may be that a confrontation cannot be avoided. The groups that support the President's nominees are clamoring for the nuclear trigger to be pulled. The only hope for the Senate is the Senate itself. In the end, this decision will be made by the 100 men and women given the honor and responsibility of serving in this body at this point in our Nation's history. The stakes could hardly be higher, or the consequences to this body more significant. I can only hope that my colleagues vote to let the Senate continue to be the Senate.

The checks and balances that the Framers created are at great risk today. The American people will suffer a great loss if we step over this precipice. My fervent plea and hope is that the Senate will choose principle over power.

I yield the floor.

Mr. President, today I will cast my vote in support of the conference report on the 2005 supplemental appropriations bill for Iraq, Afghanistan, and tsunami relief. I do so despite my strong objections to the administration's policy of continuing to fund our military operations in Iraq and Afghanistan through emergency supplemental bills. These needs should be addressed in the regular budget request so that they can actually be paid for, not placed on the tab of the American people so that debt can pile up. But the fact remains that our troops on the ground need timely support, and I will cast my vote to see that they get it, and the victims of the horrifying 2004 tsunami in South and Southeast Asia are provided with some meaningful relief and assistance.

I am pleased that the conferees retained my amendment to make it easier for the families of injured servicemembers to travel to the bedsides of their loved ones. I am disappointed that a sunset provision was added to this common-sense measure, and I will continue fighting to ensure that the benefits to military families provided by my amendment become permanent.

My vote in support of this conference report also comes with serious reservations because it contains the extremely troublesome immigration and driver's license provisions of the REAL ID Act, which the House passed as an amendment to this bill.

I strongly support efforts to curb illegal immigration and to prevent terrorists from entering our country to do harm. But as we work to secure our borders and protect our Nation from future terrorist attacks, we must also respect the need for refugees, foreign workers, family members, students, businesspeople, visitors, and others who wish to come to our Nation legally.

The REAL ID Act is a big step in the wrong direction. The new restrictions on immigration in the REAL ID Act are not necessary to protect national security. Rather, they will only serve to create serious and unjustified hardships for people fleeing persecution and for other non-citizens.

Not only that, but the Senate has had no opportunity to consider the REAL ID Act. It is astounding that Congress would enact these significant immigration changes without the United States Senate ever having held a hearing on them, without the Judiciary Committee ever having considered them, and without Senators ever having taken a vote specifically on those reforms or having had an opportunity to offer amendments. Obviously these issues are too important to address them in such a truncated way. Congressional leaders have no business tacking these very significant and controversial changes to immigration law onto an unrelated, must-pass appropriations bill. Clearly, this process was used because these changes could not pass the Senate on their own merit. They had to be added to legislation that contains vital funding for our troops in Iraq.

What has happened to the legislative process? I know that some in the other body, and some in the Senate as well, have very strong feelings about these immigration provisions. But strong feelings do not justify abusing the

power of the majority and the legislative process in this way. I strongly object to this tactic.

Let me explain a few of my concerns with the REAL ID Act. First, this conference report will make it even harder for those fleeing persecution to seek asylum in this country. These changes to asylum law are simply unnecessary. As any attorney who handles asylum cases can tell you, asylum cases are already extremely difficult to prove. In fact, only about 30 percent of asylum applications are granted today. Those seeking asylum in the United States already undergo the highest level of security checks of all foreign nationals who enter this country, and the provisions in this bill will result, I am sure, in the rejection of legitimate applications without making us any safer.

The asylum provisions of the REAL ID Act were improved somewhat in conference, and I greatly appreciate the work Senator Brownback did to make changes to the House-passed version. But the changes do not go far enough to adequately protect asylum seekers. This bill will have real effects on real people--people who will be sent back to countries where they or their families may be harmed or even killed because of their political or religious beliefs.

There are also provisions in this bill that would further restrict judicial review in immigration proceedings. This is not the time to downgrade the judicial branch's longstanding role as a check on the abuse of executive branch power, particularly in light of some of the administration's unprecedented actions since September 11, 2001. Non- citizens have borne the burden of many of the administration's egregious civil liberties violations that have occurred since September 11. I believe that we can fight terrorism without compromising our civil liberties. Making it harder for non-citizens to seek judicial review in immigration proceedings is sending exactly the wrong message about the need to respect the Constitution and basic human rights.

The REAL ID provisions in the conference report also have potentially serious environmental implications. One section of the conference report allows the Secretary of Homeland Security to waive all laws that he deems necessary to allow expeditious construction of barriers at the border. Let me repeat that: The Secretary can waive any and all laws that he wishes in order to construct these barriers. I guess that could include labor and safety laws, but certainly it means that environmental regulations can be waived, at the sole discretion of the Secretary.

I also want to address the driver's license title of the conference report. This title of the REAL ID Act is particularly unfortunate because it repeals provisions of the Intelligence Reform and Terrorism Prevention Act, which we just passed a few months ago, and replaces them with the unworkable mandates that Congress rejected when debating the intelligence reform legislation. The intelligence reform bill required a negotiated rulemaking process to develop minimum identification standards, a process that is already under way and has included State governments, the Departments of Homeland Security and Transportation, law enforcement, industry representatives, privacy advocates, and immigration groups.

They all had a seat at the table under the intelligence reform bill. In fact, they met for 3 full days just a few weeks ago. This process would have, in all likelihood, resulted in sensible, realistic standards for driver's licenses to improve security.

Instead, the REAL ID Act mandates a long list of expensive and inflexible requirements for the states, some of which could have serious unintended consequences.

Let me give you an example that demonstrates why we should not be rushing these provisions into law. A variety of States, either by law or policy, have address confidentiality programs that permit law enforcement officers, judges, or domestic violence victims to list something other than their home address on the face of their driver's license. They are required to provide their home address to the DMV, but it is not actually printed on the license. This is an important security measure to protect public officials and victims of violence from individuals who wish to do them harm.

The REAL ID Act would override these protections by mandating that a person's home address be printed on the face of the driver's license itself. Had the Senate Judiciary Committee had an opportunity to review this bill, I feel confident we could have addressed this issue in a more nuanced way, and certainly the process now underway that this bill will short-circuit would have taken into account the legitimate public safety interest allowing some people to not list their actual addresses.

The intelligence reform bill struck the right balance by setting up a mechanism to help improve the security of State identification cards, while also ensuring that States and other interested parties would have input into the process of determining minimum identification standards. I am very disappointed that the REAL ID Act is overriding this ongoing process with costly and unrealistic requirements that leave States with little discretion.

On top of all this, the REAL ID Act prohibits the issuance of State driver's licenses to undocumented aliens. States should be the ones to decide whether, in the interests of public safety, they wish to issue driver's licenses to undocumented aliens. The reality is, there are millions of undocumented workers in the Nation. States could reasonably decide, just as Wisconsin has, that from a law enforcement and public safety perspective it is better to ensure that these individuals have been tested on their driving skills, have obtained insurance, and are readily identifiable, rather than to force them to drive illegally.

While I am extremely concerned about the effects these REAL ID provisions are going to have on noncitizens and on already cash- strapped State governments, I do want to note one bright stop in the immigration landscape of this bill. That is the provision that addresses the shortage of H-2B visas for temporary, seasonal workers. The cap for H-2B visas was reached just 3 months into the 2005 fiscal year, in January, which meant that employers in Northern States, such as Wisconsin whose tourism, landscaping, and other seasonal industries get started later in the year, have been unable to hire workers using H-2B visas.

Senator Mikulski and Senator Gregg worked tirelessly to ensure that this provision was enacted into law in time to help employers who need workers this year, and I do commend them for their efforts. I have been proud to cosponsor their H-2B legislation, and I am very pleased this is about to become law. Unlike the REAL ID bill, this provision had overwhelming bipartisan support in the Senate and quick congressional action was definitely needed.

Mr. President, I will vote for this legislation because our Armed Forces need the funds it provides, but I strongly object to the inclusion of the REAL ID Act in the conference report. Those who support these provisions have prevailed only because they were willing to upend the legislative process to achieve their ends. I certainly regret that, and I think many of us will come to regret that.

I yield the floor.

Mr. President, I would like to briefly discuss my vote in favor of cloture on the nomination of Stephen Johnson to be the Administrator of the Environmental Protection Agency EPA. I have always believed that the President should be granted significant deference in selecting his

Cabinet and close advisers. Unlike judicial nominees, the EPA Administrator will serve for 4 years at the President's discretion.

Furthermore, the President made a good choice. Stephen Johnson, who has served the country for 24 years as a career EPA employee, is a well-qualified nominee who enjoys broad public support. When his nomination was considered by the Senate Environment and Public Works Committee this spring, the committee approved his nomination by a vote of 17-1. He will serve the country well as Administrator of the EPA.

I share my colleagues' concerns about the administration's refusal to provide the Senate Environment and Public Works Committee with EPA's analysis of the clean air bills pending before the Senate. I am proud to cosponsor Senator Jeffords' Clean Power Act, and I believe that the administration's Clear Skies proposal is woefully inadequate. I agree that the information Senator Carper has requested from EPA is vitally important to evaluate the differing clean air regulation proposals. EPA's refusal to turn over its analysis indicates that its own data do not lend support to the Clear Skies initiative. Disclosure of Government data to the public is a cornerstone of our democracy, and this administration has continually attempted to avoid congressional oversight. I implore Mr. Johnson, on his first day as EPA Administrator, to turn over these documents to the Senator Carper and Senator Jeffords. To restore credibility to the agency that is supposed to safeguard human health and the environment, Administrator Johnson should release this information immediately.

Nonetheless, I do not believe that the administration's refusal to provide this information should stand in the way of this qualified nominee leading the Nation's Environmental Protection Agency.

Mr. President, this resolution is the latest in a string of budgets that continue to set records for fiscal recklessness.

The test of any budget is the bottom line, and any civics teacher looking at the bottom line would have to give this budget an ``F.'' It continues to drive us deeper into the deficit ditch, with little hope that we will ever climb out of it, and it is just as revealing for what it does not include as for what it does.

This budget fails to include a single penny for the President's most important domestic priority, his plan to privatize Social Security. While I strongly oppose such a plan, if the President and congressional leadership are serious about pushing their plan to privatize Social Security, the very least they can do is pay for it.

This budget fails to provide for long-term reform of the alternative minimum tax, something on which there is widespread, bipartisan agreement. But here again, instead of ensuring that this clear priority can move ahead, this budget remains silent.

And perhaps most importantly, this budget fails to restore the common sense pay-go budget rule that helped restrain our collective fiscal appetites, and made us pay for what we wanted to do. That is such a simple, straightforward proposition pay for what you want. It's what every family has to do. It's how the Clinton-Gore administration and Congress finally balanced the Federal books during the 1990s.

We are already in a deep budget hole. The only way we are going to get out is to stop digging. But instead of getting back on track to reducing our deficits, and beginning to pay down our enormous government debt, this budget has Congress digging the hole even deeper.

This budget is deeply flawed in many other ways, but let me discuss just one, the use of expedited budget procedures to impose a controversial and environmentally reckless proposal to drill for oil in the Arctic National Wildlife Refuge. As I noted during the mark-up of the budget resolution in committee, this is a fight that we should have in open debate, not through the abusive use of the reconciliation process that itself relies on the most dubious of budget assumptions.

As one of our colleagues put it, we should not abuse the budget and the budget reconciliation process ``in order to be immune from unlimited debate.'' Allowing oil drilling in this wildlife refuge is an issue that is too important to the public to be passed like this. We should debate it in the open during an energy debate, not further degrade the already adulterated reconciliation process.

This budget aggravates our fiscal problems by adding to the already mountainous Federal debt. It fails to restore desperately needed budget discipline. It corrupts the reconciliation process, originally intended to facilitate deficit reduction, by using it to worsen the bottom line by expediting more unfunded tax cuts, and by using it to shield a controversial attack on an environmental treasure.

In short, this budget is a disaster. The Nation would be better off without any budget resolution than with this one.

Mr. President, this past weekend millions of Jews around the world celebrated the beginning of the Passover holiday. Gathered at Seder tables with family and friends, they commemorated the Israelites' exodus from Egypt almost 4,000 years ago.

Jewish law dictates, however, that the Jewish people must do more on Passover than merely remember their ancestors' time in bondage. They must strive to reenact the experience.

Using matzah and bitter herbs, the Seder is an endeavor to recreate the past. To literally taste the bitterness of slavery and the sweetness of freedom.

It is also an opportunity to sharpen awareness of an alarming yet oft-overlooked truth: that millions of men, women and children around the world are still enslaved and have yet to know freedom.

Ultimately the Passover Seder is a modern call to action. It reminds that until all people know the joy of freedom, none of us is truly free.

Many Jews use the Seder not only to celebrate the value of freedom, but to call attention to regions of the world where the spirit of slavery lives on in places like Darfur, Sudan.

For over 2 years now, the Darfur people have been terrorized by violence. Millions have been oppressed by threats of death and destruction. Meanwhile, untold numbers of refugees have fled across the scorched earth, seeking refuge from their taskmasters.

The genocide that rages on in Darfur is a modern derivative of slavery. With the support of the Khartoum Government, Janjaweed militia groups commit mass looting, raping and violence inspired by ethnic hatred.

A recent analysis by the coalition for International Justice indicates that nearly 400,000 civilians have died since the conflict began 2 years ago. Over 140,000 have been killed by Sudanese Government forces. And an estimated 250,000 Darfur civilians have perished from disease and starvation stemming from displacement.

Recently, there has also been a disturbing trend of intimidation directed at aid workers in the region. The Red Cross reports that attacks on aid convoys in Darfur have increased in recent weeks. And last month, a USAID worker was intentionally shot point blank in an attempt to thwart humanitarian efforts and spread fear and intimidation.

Having personally visited the refugee camps on the Chad-Sudan border and met with survivors, I know that millions of our brothers and sisters are still crushed under the yoke of slavery and fear. Millions of them still do not know what it means to be free.

Nobel laureate Elie Wiesel recently commented that ``All are entitled to live with dignity and hope. All are entitled to live without fear and pain. Not to assist Sudan's victims today would for me be unworthy of what I have learned from my teachers, my ancestors and my friends, namely that God alone is alone: His creatures must not be.''

We must reject this form of slavery by oppression. We must stop the killings. The death toll will only rise without immediate, convincing and unified intervention by the international community.

It is our obligation as free people to bring hope and banish repression.

And it is my belief that we should use the message shared by the Passover

story, and, indeed, the wisdom of all traditions, to guide us wisely on our Journey.

Mr. President, today I am pleased to be joined by the Senator from South Carolina, Mr. Graham, in introducing legislation that requires Congress to act on what may be the most pressing domestic policy issue of our time, namely health care reform.

I travel to each of Wisconsin's 72 counties every year to hold town hall meetings. Year after year, the number one issue raised at these listening sessions is the same--health care. The failure of our health care system brings people to these meetings in droves. The frustration I hear, the anger and the desperation, have convinced me that we must change the system.

So many people now come to tell me that they used to think government involvement was a terrible idea, but not anymore. Now they tell me that their businesses are being destroyed by health care costs, and they want the government to step in. These costs are crippling our economy just as the nation is struggling to rebound from the loss of millions of manufacturing jobs.

Our health care system has failed to keep costs in check. Costs are skyrocketing, and there is simply no way we can expect businesses to keep up. So in all too many cases, employers are left to offer sub-par benefits, or to wonder whether they can offer any benefits at all. Employers cannot be the sole provider of health care when these costs are rising faster than inflation.

One option that could help employers, especially small businesses, reduce their health care costs is to have them form health care cooperatives, where employers lower costs by purchasing care as a group. I have introduced a bill in the Senate to make it easier for business to create these cooperatives.

But that legislation certainly isn't the magic bullet that can address the whole problem. We need to come up with more comprehensive ways to address rising costs. In most cases, costs are still passed on to employees, who then face enormous premiums that demand more and more of their monthly income. People tell me that they don't understand how anyone can afford these astronomical premiums, and what can you say to that?

Well, we can say that it's time to move toward universal coverage. I believe we can find a way to make universal coverage work in this country. Universal coverage doesn't mean that we have to copy a system already in place in another country. We can harness our Nation's creativity and entrepreneurial spirit to design a system that is uniquely American. Universal coverage doesn't have to be defined by what's been attempted in the past. What universal coverage does mean is ending a system where approximately 45 million Americans are uninsured, and where too many of those who are insured are struggling to pay their premiums, struggling to pay for prescription drugs, and struggling to find long term care.

We can't tolerate a system that strands so many Americans without the coverage they need. This system costs us dearly: Even though an estimated 45 million Americans are uninsured, the United States devotes more of its economy to health care than other industrial countries.

Leaving this many Americans uninsured affects all of us. Those who are insured pay more because the uninsured can't afford to pay their bills. And those bills are exceptionally high, because the uninsured wait so long to see a doctor. The uninsured often live sicker, and die earlier, than other Americans, so they also need a disproportionate amount of acute care.

In 2001 alone, health care providers provided $35 billion worth of uncompensated care. While providers absorb some of those costs, inevitably some of the burden is shifted to other patients. And of course the process of cost-shifting itself generates additional costs.

We are all paying the price for our broken health care system, and it is time to bring about change.

Over the years I have heard many different proposals for how we should change the health care system in this country. Some propose using tax incentives as a way to expand access to health care. Others think the best approach is to expand public programs. Some feel a national single payer health care system is the only way to go.

I don't think we can ignore any of these proposals. We need to consider all of these as we address our broken health care system.

As a former State legislator, I come to this debate knowing that States are coming up with some very innovative solutions to the health care problem.

So in addition to the approaches already mentioned, I think we really need to look at what our States are doing, and add to the menu of possibilities an approach under which each State decides the best way to cover its residents.

I favor an American-style health care reform, where we encourage creative solutions to the health care problems facing our country, without using a one-size-fits-all approach. I believe that states have a better idea about what the health care needs of their residents are, and that they understand what types of reform will work best for their State. So I am in favor of a State-based universal health care system, where States, with the Federal Government's help, come up with a plan to make sure that all of their residents have health care coverage.

This approach would achieve universal health care, without the Federal Government dictating to all of the states exactly how to do it. The Federal Government would provide States with the financial help, technical assistance and oversight necessary to accomplish this goal. In return, a State would have to make sure that every resident has coverage at least as good as that offered in the Federal Employee Health Benefits Program (FEHBP)--in other words, at least as good as the health insurance Members of Congress have.

States would have the flexibility to expand coverage in phases, and would be offered a number of Federal ``tools'' to choose from in order to help them achieve universal coverage. States could use any number of these tools, or none of them, instead opting for a Federal contribution for a State-based ``single-payer'' system. In addition to designing and implementing a plan to achieve universal care, States would also be required to provide partial funding of these plans. The Federal Government would approve each State plan, and would conduct oversight of the implementation of these plans.

Federal tools that States could choose from to help expand health coverage could include an enhanced Medicaid and SCHIP Federal match for expanding coverage to currently uninsured individuals; refundable and advanceable tax credits for the purchase of health insurance for individuals and/or businesses; the establishment of a community-rated health pool, similar to FEHBP, to provide affordable health coverage and expanded choices for those who enroll; and assistance with catastrophic care costs.

States could be creative in the State resources they use to expand health care coverage. For example, a State could use personal and/or employer mandates for coverage, use State tax incentives, create a single-payer system or even join with neighboring States to offer a regional health care plan.

The approach I have set forth would guarantee universal health care, but still leave room for the flexibility and creativity that I believe is necessary to ensure that everyone has access to affordable, quality health care.

As I have noted, there have been a number of interesting proposals to move us to universal health care coverage. While I will be advocating the State-based approach that I have just outlined, others have proposed alternative approaches that certainly merit consideration and debate.

And this brings us to the legislation Senator Graham and I are introducing today, because, the reason we haven't reformed our health care system isn't because of a lack of good ideas. The problem is that Congress and the White House refuse to take this issue up. Despite the outcry from businesses, from health care providers, and from the tens of millions who are uninsured or underinsured or struggling to pay their premiums, Washington refuses to address the problem in a comprehensive way.

That is why we are introducing this bill. Our legislation will force Congress to finally address this issue. It requires the Majority and Minority Leaders of the Senate, as well as the Chairs of the Health, Education, Labor, and Pensions Committee and the Finance Committee, to each introduce a health care reform bill in the first 30 days of the session following enactment of the bill. If a committee chair fails to introduce a bill within the first month, then the ranking minority party member of the respective committee may introduce a measure that qualifies for the expedited treatment outlined in my bill.

The measures introduced by the Majority Leader and Minority Leader will be placed directly on the Senate Calendar. The measures introduced by the two committee chairs, or ranking minority members, will be referred to their respective committees.

The committees have 60 calendar days, not including recesses of 3 days or more, to review the legislation. At the end of that time, if either committee fails to report a measure, the bills will be placed directly on the legislative calendar.

If the Majority Leader fails to move to one of the bills, any Member may move to proceed to any qualifying health care reform measure. The motion is not debatable or amendable. If the motion to proceed is adopted, the Chamber will immediately proceed to the consideration of a measure without intervening motion, order, or other business, and the measure remains the unfinished business of the Senate until the body disposes of the bill.

Similar procedures are established for House consideration.

I want to emphasize, my hill does not prejudge what particular health care reform measure should be debated. There are many worthy proposals that would qualify for consideration, and this bill does not dictate which proposal, or combination of proposals, should be considered.

But what my bill does do is to require Congress to act.

It has been over 10 years since the last serious debate over health care reform was killed by special interests and the soft money contributions they used to corrupt the legislative process. The legislative landscape is now much different. Soft money can no longer be used to set the agenda, and businesses and workers are crying out as never before for Congress to do something about the country's health care crisis.

It has been over 10 years since we've had any debate on comprehensive health care reform. We cannot afford any further delay, because I believe the cost of inaction is too great. I urge my colleagues to support the Reform Health Care Now Act of 2005.

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

Mr. President, I am introducing the Crane Conservation Act of 2005. I am very pleased that the Senators from Idaho, Mr. Crapo, Florida, Mr. Martinez, Wisconsin, Mr. Kohl and Maryland, Mr. Sarbanes, have joined me as cosponsors of this bill. I propose this legislation in the hope that Congress will do its part to protect the existence of these birds, whose cultural significance and popular appeal can be seen worldwide. This legislation is particularly important to the people of Wisconsin, as our State provides habitat and refuge to several crane species. But this legislation, which authorizes the United States Fish and Wildlife Service to distribute funds and grants to crane conservation efforts both domestically and in developing countries, promises to have a larger environmental and cultural impact that will go far beyond the boundaries of my home state. This bill is similar to legislation that I introduced in the 107th and 108th Congresses.

In October of 1994, Congress passed and the President signed the Rhinoceros and Tiger Conservation Act. The passage of this act provided support for multinational rhino and tiger conservation through the creation of the Rhinoceros and Tiger Conservation Fund, or RTCF. Administered by the United States Fish and Wildlife Service, the RTCF distributes up to $10 million in grants every year to conservation groups to support projects in developing countries. Since its establishment in 1994, the RTCF has been expanded by Congress to cover other species, such as elephants and great apes.

Today, with the legislation I am introducing, I am asking Congress to add cranes to this list. Cranes are the most endangered family of birds in the world, with 11 of the world's fifteen species at risk of extinction. Specifically, this legislation would authorize up to $5 million of funds per year to be distributed in the form of conservation project grants to protect cranes and their habitat. The financial resources authorized by this bill can be made available to qualifying conservation groups operating in Asia, Africa, and North America. The program is authorized from Fiscal Year 2006 through Fiscal Year 2010.

In keeping with my belief that we should balance the budget, this bill proposes that the $25 million in authorized spending over five years for the Crane Conservation Act established in this legislation should be offset through the Secretary of Interior's administrative budget.

I am offering this legislation due to the serious and significant decline that can be expected in crane populations worldwide without further conservation efforts. Those efforts have achieved some success in the case of the North American whooping crane, the rarest crane on earth. In 1941, only 21 whooping cranes existed in the entire world. This stands in contrast to the over 450 birds in existence today. The North American whooping crane's resurgence is attributed to the birds' tenacity for survival and to the efforts of conservationists in the United States and Canada. Today, the only wild flock of North American whooping cranes breeds in northwest Canada, and spends its winters in coastal Texas. Two new flocks of cranes are currently being reintroduced to the wild, one of which is a migratory flock on the Wisconsin to Florida flyway.

The movement of this flock of birds shows how any effort by Congress to regulate crane conservation needs to cross both national and international lines. As this flock of birds makes its journey from Wisconsin to Florida, the birds rely on the ecosystems of a multitude of states in this country. In its journey from the Necedah National Wildlife Refuge in Wisconsin to the Chassahowitzka National Wildlife Refuge in Florida in the fall and eventual return to my home state in the spring, this flock also faces threats from pollution of traditional watering grounds, collision with utility lines, human disturbance, disease, predation, loss of genetic diversity within the population, and vulnerability to catastrophes, both natural and man-made.

The birds also rely on private landowners, the vast majority of whom have enthusiastically welcomed the birds to their rest on their land. Through its extensive outreach and education program, the Whooping Crane Eastern Partnership has obtained the consistent support of farmers and other private landowners to make this important recovery program a success. On every front, this partnership is unique. One of the program's supporters has told me that this program is the conservation equivalent of putting a man on the moon. I think it is quite appropriate then that the Smithsonian announced that one of the

ultralight planes from Operation Migration, which leads the migration from Necedah to Chassahowitzka, will be inducted into the National Air and Space Museum. The plane will be on display in the Museum early next year. I cannot think of a better way to showcase this innovative conservation program.

Despite the remarkable conservation efforts taken since 1941, however, this species is still very much in danger of extinction. While over the course of the last half-century, North American whooping cranes have begun to make a slow recovery, many species of crane in Africa and Asia have declined, including the sarus crane of Asia and the wattled crane of Africa.

The sarus crane stands four feet tall and can be found in the wetlands of northern India and south Asia. These birds require large, open, well watered plains or marshes to breed and survive. Due to agricultural expansion, industrial development, river basin development, pollution, warfare, and heavy use of pesticides prevalent in India and southeast Asia, the sarus crane population has been in decline. Furthermore, in many areas, a high human population concentration compounds these factors. On the Mekong River, which runs through Cambodia, Vietnam, Laos, Thailand, and China, human population growth and planned development projects threaten the sarus crane. Reports from India, Cambodia, and Thailand have also cited incidences of the trading of adult birds and chicks, as well as hunting and egg stealing in the drop in population of the sarus crane.

Only three subspecies of the sarus crane exist today. One resides in northern India and Nepal, one resides in southeast Asia, and one resides in northern Australia. Their population is about 8,000 in the main Indian population, with recent numbers showing a rapid decline. In Southeast Asia, only 1,000 birds remain.

The situation of the sarus crane in Asia is mirrored by the situation of the wattled crane in Africa. In Africa, the wattled crane is found in the southern and eastern regions, with an isolated population in the mountains of Ethiopia. Current population estimates range between 6,000 to 8,000 and are declining rapidly, due to loss and degradation of wetland habitats, as well as intensified agriculture, dam construction, and industrialization. In other parts of the range, the creation of dams has changed the dynamics of the flood plains, thus further endangering these cranes and their habitats. Human disturbance at or near breeding sites also continues to be a major threat. Lack of oversight and education over the actions of people, industry, and agriculture is leading to reduced preservation for the lands on which cranes live, thereby threatening the ability of cranes to survive in these regions.

If we do not act now, not only will cranes face extinction, but the ecosystems that depend on their contributions will suffer. With the decline of the crane population, the wetlands and marshes they inhabit can potentially be thrown off balance. I urge my colleagues to join me in supporting legislation that can provide funding to the local farming, education and enforcement projects that can have the greatest positive effect on the preservation of both cranes and fragile habitats. This modest investment can secure the future of these exemplary birds and the beautiful areas in which they live. Therefore, I ask my colleagues to support the Crane Conservation Act of 2005.

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

Mr. President, I am introducing the Crane Conservation Act of 2005. I am very pleased that the Senators from Idaho, Mr. Crapo, Florida, Mr. Martinez, Wisconsin, Mr. Kohl and Maryland, Mr. Sarbanes, have joined me as cosponsors of this bill. I propose this legislation in the hope that Congress will do its part to protect the existence of these birds, whose cultural significance and popular appeal can be seen worldwide. This legislation is particularly important to the people of Wisconsin, as our State provides habitat and refuge to several crane species. But this legislation, which authorizes the United States Fish and Wildlife Service to distribute funds and grants to crane conservation efforts both domestically and in developing countries, promises to have a larger environmental and cultural impact that will go far beyond the boundaries of my home state. This bill is similar to legislation that I introduced in the 107th and 108th Congresses.

In October of 1994, Congress passed and the President signed the Rhinoceros and Tiger Conservation Act. The passage of this act provided support for multinational rhino and tiger conservation through the creation of the Rhinoceros and Tiger Conservation Fund, or RTCF. Administered by the United States Fish and Wildlife Service, the RTCF distributes up to $10 million in grants every year to conservation groups to support projects in developing countries. Since its establishment in 1994, the RTCF has been expanded by Congress to cover other species, such as elephants and great apes.

Today, with the legislation I am introducing, I am asking Congress to add cranes to this list. Cranes are the most endangered family of birds in the world, with 11 of the world's fifteen species at risk of extinction. Specifically, this legislation would authorize up to $5 million of funds per year to be distributed in the form of conservation project grants to protect cranes and their habitat. The financial resources authorized by this bill can be made available to qualifying conservation groups operating in Asia, Africa, and North America. The program is authorized from Fiscal Year 2006 through Fiscal Year 2010.

In keeping with my belief that we should balance the budget, this bill proposes that the $25 million in authorized spending over five years for the Crane Conservation Act established in this legislation should be offset through the Secretary of Interior's administrative budget.

I am offering this legislation due to the serious and significant decline that can be expected in crane populations worldwide without further conservation efforts. Those efforts have achieved some success in the case of the North American whooping crane, the rarest crane on earth. In 1941, only 21 whooping cranes existed in the entire world. This stands in contrast to the over 450 birds in existence today. The North American whooping crane's resurgence is attributed to the birds' tenacity for survival and to the efforts of conservationists in the United States and Canada. Today, the only wild flock of North American whooping cranes breeds in northwest Canada, and spends its winters in coastal Texas. Two new flocks of cranes are currently being reintroduced to the wild, one of which is a migratory flock on the Wisconsin to Florida flyway.

The movement of this flock of birds shows how any effort by Congress to regulate crane conservation needs to cross both national and international lines. As this flock of birds makes its journey from Wisconsin to Florida, the birds rely on the ecosystems of a multitude of states in this country. In its journey from the Necedah National Wildlife Refuge in Wisconsin to the Chassahowitzka National Wildlife Refuge in Florida in the fall and eventual return to my home state in the spring, this flock also faces threats from pollution of traditional watering grounds, collision with utility lines, human disturbance, disease, predation, loss of genetic diversity within the population, and vulnerability to catastrophes, both natural and man-made.

The birds also rely on private landowners, the vast majority of whom have enthusiastically welcomed the birds to their rest on their land. Through its extensive outreach and education program, the Whooping Crane Eastern Partnership has obtained the consistent support of farmers and other private landowners to make this important recovery program a success. On every front, this partnership is unique. One of the program's supporters has told me that this program is the conservation equivalent of putting a man on the moon. I think it is quite appropriate then that the Smithsonian announced that one of the

ultralight planes from Operation Migration, which leads the migration from Necedah to Chassahowitzka, will be inducted into the National Air and Space Museum. The plane will be on display in the Museum early next year. I cannot think of a better way to showcase this innovative conservation program.

Despite the remarkable conservation efforts taken since 1941, however, this species is still very much in danger of extinction. While over the course of the last half-century, North American whooping cranes have begun to make a slow recovery, many species of crane in Africa and Asia have declined, including the sarus crane of Asia and the wattled crane of Africa.

The sarus crane stands four feet tall and can be found in the wetlands of northern India and south Asia. These birds require large, open, well watered plains or marshes to breed and survive. Due to agricultural expansion, industrial development, river basin development, pollution, warfare, and heavy use of pesticides prevalent in India and southeast Asia, the sarus crane population has been in decline. Furthermore, in many areas, a high human population concentration compounds these factors. On the Mekong River, which runs through Cambodia, Vietnam, Laos, Thailand, and China, human population growth and planned development projects threaten the sarus crane. Reports from India, Cambodia, and Thailand have also cited incidences of the trading of adult birds and chicks, as well as hunting and egg stealing in the drop in population of the sarus crane.

Only three subspecies of the sarus crane exist today. One resides in northern India and Nepal, one resides in southeast Asia, and one resides in northern Australia. Their population is about 8,000 in the main Indian population, with recent numbers showing a rapid decline. In Southeast Asia, only 1,000 birds remain.

The situation of the sarus crane in Asia is mirrored by the situation of the wattled crane in Africa. In Africa, the wattled crane is found in the southern and eastern regions, with an isolated population in the mountains of Ethiopia. Current population estimates range between 6,000 to 8,000 and are declining rapidly, due to loss and degradation of wetland habitats, as well as intensified agriculture, dam construction, and industrialization. In other parts of the range, the creation of dams has changed the dynamics of the flood plains, thus further endangering these cranes and their habitats. Human disturbance at or near breeding sites also continues to be a major threat. Lack of oversight and education over the actions of people, industry, and agriculture is leading to reduced preservation for the lands on which cranes live, thereby threatening the ability of cranes to survive in these regions.

If we do not act now, not only will cranes face extinction, but the ecosystems that depend on their contributions will suffer. With the decline of the crane population, the wetlands and marshes they inhabit can potentially be thrown off balance. I urge my colleagues to join me in supporting legislation that can provide funding to the local farming, education and enforcement projects that can have the greatest positive effect on the preservation of both cranes and fragile habitats. This modest investment can secure the future of these exemplary birds and the beautiful areas in which they live. Therefore, I ask my colleagues to support the Crane Conservation Act of 2005.

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