Floor Statements

Mr. President, I want to add my thoughts to the debate on the Department of Homeland Security appropriations bill for fiscal year 2005.

First, I want to preface my remarks by thanking the chairman and ranking member of the Homeland Security Appropriations Subcommittee for working so diligently on this bill despite the constraints they have faced. The fight against terrorism is our number one priority, and this appropriations bill is a key component in that fight.

I also thank the Nation's first responders and the employees of the Department of Homeland Security, DHS, who work daily to protect this Nation. They are on the front lines of the fight against terrorism. They are the ones who are called on to stop and respond to any future attack upon our Nation. This bill includes important resources these brave men and women need to perform their critical tasks.

The Senate bill is a vast improvement over the President's proposed budget. It increases funding for such important things as port security, FIRE Act grants, Federal air marshals, Emergency Management Performance Grants, and the SAFER program. The Senate bill also includes funding for research and development on next generation explosive detection equipment, a priority identified by the 9/11 Commission. These are just a few examples of the many areas where the Senate bill is far superior to the administration's request.

I was also pleased that the Senate bill includes a number of amendments I sponsored. The Senate adopted my amendment requiring DHS to create a strategic transportation security plan and to base future transportation security budgets on that plan. This amendment will make sure that taxpayer dollars are spent efficiently and effectively to meet our Nation's most pressing transportation security needs, rather than the current well-intended but ad hoc method of spending. This amendment was based on one of the recommendations of the 9/11 Commission and, it is one of the first of the Commission's recommendations to be adopted by the Senate.

The Senate also adopted my amendment to extend to the Department of Homeland Security for fiscal year 2005 a provision included in the fiscal year 2004 omnibus appropriations law that requires all departments and agencies to report to Congress on purchases of foreign- made goods. It is important that the government make every effort to purchase American-made goods and that it explain to the public whenever it fails to do so.

I was also pleased that the Senate adopted my amendment requiring the Department of Homeland Security to report to Congress on its use of data-mining in fiscal year 2005. This amendment will provide the American people with critical information about the use of data-mining technology and the way highly personal information, like credit reports, travel records and other personal information, is obtained and used by our government. Periodically, after millions of dollars have been spent, we learn about a new data-mining program under development by the Federal Government. This amendment will not stop any data- mining. It simply requires the Department of Homeland Security to report to Congress on any data-mining programs it is using or developing and how these programs implicate the civil liberties and privacy of all Americans. With complete information, the American people will be able to make considered judgments about which programs should and should not go forward.

Although this bill does a lot to help protect this Nation, including providing much-needed resources for our first responders, it does not do enough. I was disappointed that many good amendments were not adopted by the Senate. For example, an amendment offered by Senator Byrd, which I cosponsored, would have canceled purchases of oil to the Strategic Petroleum Reserve and directed the $470 million in savings to critical homeland security needs. Yet the Senate rejected this amendment even though it would have helped to ease gas prices by freeing more oil for the market and provided important funding for our homeland security programs.

I also regret that this bill was so severely limited by a budget allocation that did not provide adequate funding for homeland security, choosing instead to make tax cuts its highest priority. That is why I supported several amendments that would have added funding for critical security needs. I want to point out to my colleagues that I do not take lightly my decision to vote in favor of spending more money. Fiscal responsibility is one of my highest priorities and I constantly look for ways to limit government spending. I am honored that the Concord Coalition and others have recognized me for my efforts in this regard. Although fiscal responsibility remains one of my top priorities, it is imperative that we provide the resources needed to combat terrorism.

I voted for this bill because it provides necessary funding. However, our Nation's vulnerabilities demand more, and I will continue to work to ensure that our vital homeland security needs are met.

intelligence reform

Mr. President, the amendment that I am offering today would require the Secretary of Homeland Security to submit to Congress a report on the amount of goods acquired by the Department during fiscal year 2005 that were made overseas.

I want to thank the chairman and the ranking member of the subcommittee for working with me to include this important provision in the bill.

My amendment would extend for another year with respect to the Department of Homeland Security a provision that was enacted as part of the fiscal year 2004 omnibus spending bill requiring all Federal departments and agencies to submit to Congress a report about goods that they purchase that are made outside of the United States. These reports will improve the disclosure of the amount of foreign-made goods purchased by the federal government.

My amendment, like current law, requires that this report include the following information: (a) the dollar value of any articles, materials, or supplies purchased that are manufactured outside of the United States; (b) an itemized list of all waivers of the Buy American Act granted with respect to such articles, materials, or supplies, and (c) a summary of total procurement funds spent on goods manufactured in the United States versus funds spent on goods manufactured outside of the United States.

The amendment also requires that the report be made publicly available to the maximum extent practicable.

Prior to the enactment earlier this year of the Government-wide Buy American reporting requirement that I authored, only the Department of Defense was required to report annually on its use of waivers of domestic procurement laws. Last year, I introduced legislation to strengthen the Buy American Act of 1933, the statute that governs procurement by the Federal Government. The name of the Act accurately and succinctly describes its purpose: to ensure that the Federal Government supports domestic companies and domestic workers by buying

American-made goods. One part of my bill would require that all Federal departments and agencies submit annual reports on their purchases. The amendment that I am offering today is based on that provision in my bill.

The Buy American Act requires that the Federal Government support domestic businesses and domestic workers by buying American-made goods. I am pleased to note that the underlying bill includes language that states that none of the funds appropriated to the Department of Homeland Security may be used in contravention of the applicable provisions of the Buy American Act.

It only makes sense that Federal departments and agencies be required to report to Congress on their compliance with Federal law and with congressional intent regarding this important matter.

The American people deserve to know how their tax dollars are being spent, and to what extent these dollars are being used to support foreign jobs. I look forward to reviewing the fiscal year 2004 versions of these reports, and I am pleased that the managers have worked with me to extend the requirement for the Department of Homeland Security for fiscal year 2005. I will continue my efforts to ensure that this simple reporting requirement is made permanent for all Federal departments and agencies.

Again, I thank the chairman and ranking member of the subcommittee for agreeing to accept my amendment, and I yield the floor.

Mr. President, I cannot let September 11 pass without reflecting on this painful anniversary, and heralding the strength of our Nation in the three years that have passed since that terrible day.

Three years ago, a global network of terrorists attacked our country, taking the lives of nearly three thousand innocent men, women, and children. Today, we are still angered by the cruelty of these attacks. We are still awed by the courage of our first responders, and of the everyday Americans who were heroes on that day, whose acts of bravery and kindness were a source of solace for the Nation in the days after the attacks. Their strength became our strength, and with each passing day, and each passing year, our resolve to stop the forces of terror has only deepened.

This month, as the Senate moves forward to address the critically important recommendations made by the 9/11 Commission, we mark the third year that has passed since the attacks. But this anniversary is not simply about the events of a single day. It is about our continued sadness and grief, and our overwhelming pride in the way our Nation responded to the tragic events of that day. It is also about the abiding strength of our convictions; our deep and profound commitment to fighting the forces of terror, to making our families safer, and to preserving the freedoms at the heart of our national character.

We remember September 11 every day. On this anniversary, we simply share in that remembrance--both with other Americans, and with people around the world who stand with us in the fight against terrorism. Today I pay tribute to the lives we lost, and I honor the men and women across this country who give this Nation its greatest source of strength: our faith in our country, in our communities, and in each other.

Mr. President, as the Senate returns from its August recess this week, students, teachers, and school personnel across Wisconsin and around the country are settling in for a new school year.

Each new school year brings with it the promise of things to come. Students will embark on new educational paths, with new subjects and teachers and, in some instances, new classmates. Some students are entering school for the first time, while others are beginning their middle or high school careers. And some are embarking on their senior years in high school and are preparing to make the transition into the next phase of their lives. All of these students, and their parents, are facing new challenges and new opportunities. We owe it to them to provide the resources promised by the Federal Government to support our States and local school districts.

Throughout our Nation's history, the education of our children has been viewed as a largely local and State responsibility, and the Federal Government has wisely left decisions affecting our children's day-to-day classroom experiences up to the schools, districts, school boards, and State education agencies that bear the responsibility for-- and most of the cost of--educating our children. Historically, when the Federal Government has stepped in, it has been to ensure that children receive an equal opportunity for a good education by protecting the rights of all children and by providing additional resources for schools and for such related activities as teacher training.

Impact Aid, which was enacted in 1950 and is one of the oldest Federal education programs, helps local school districts to defray the costs of educating ``federally connected'' students, such as those who live on Federal land, which is not included in the local property tax base that funds elementary and secondary education. The National Defense Education Act of 1958, which was enacted in response to the Soviet launch of the Sputnik satellite, provided funding to improve math, science, and foreign language instruction in our elementary and secondary schools.

The landmark Elementary and Secondary Education Act of 1965, of which the No Child Left Behind Act is the most recent reauthorization, provided funding to support the education of disadvantaged students. That same year, Congress enacted the Higher Education Act, which has helped to provide millions of Americans with the assistance they need to pursue post-secondary education.

Also in 1965, the Office of Economic Opportunity created ``Project Head Start,'' the predecessor of the current Head Start program, which is administered by the Department of Health and Human Services. Since its inception, Head Start has improved opportunities for low-income preschool children and their families by providing a comprehensive approach to addressing the

educational, nutritional, psychological, and other needs of these children and their families.

The Individuals with Disabilities Education Act of 1975 mandates that a free appropriate public education be provided to all children and promises that the Federal Government will pay 40 percent of the cost of educating children with special needs. Our public schools' efforts to serve students with disabilities are a hallmark of our national commitment to a free public education for all children. Since IDEA was enacted, public schools have helped students with disabilities to become more self-sufficient, to prepare for employment, and to learn the skills they will need to lead productive lives. America's public schools have led the way toward the full integration of individuals with disabilities into our national life.

The Federal Government has a long history of supporting local and State governments in their effort to provide a high quality public education for each child. I support these efforts, which rightly respect the importance of maintaining local control of education. For that reason, I opposed the No Child Left Behind Act, NCLB, which the President touts as one of his top domestic achievements.

While I think we all agree that schools should be held accountable for results, I and many Wisconsinites oppose the testing-centered mandates in the NCLB. I support some aspects of this law, such as funding for reading education and after-school programs. I opposed this legislation, however, because it takes decisions regarding the frequency of testing out of the hands of local school districts and states and mandates that students be tested in reading and math in grades 3-8 beginning with the 2005-2006 school year. This top-down, one-size-fits-all approach to testing is not good for Wisconsin students or schools. Washington does not know best when it comes to making decisions such as this. And it is troubling that the results of these tests are central to determining whether a school, district, or State is considered to be ``in need of improvement'' or ``failing'' academically.

It is also troubling that the corresponding Federal sanctions for schools deemed to be ``in need of improvement'' or ``failing'' will actually take badly needed money from those very schools. And these sanctions are being imposed despite the fact that the Federal Government has not provided the resources to help these school succeed that were promised by the No Child Left Behind Act.

The President has called the No Child Left Behind Act ``the most important Federal education reform in history.'' I respectfully disagree with the President's assessment of this law, the effects of which are beginning to reverberate throughout Wisconsin and throughout the country. As I travel around Wisconsin each year to host listening sessions in each of our 72 counties, I hear time and again from frustrated teachers, administrators, parents, and others about the negative effect that NCLB is having on education in Wisconsin.

I began to hear such comments more than three years ago when the President first proposed his education initiative, and this drumbeat of concern has increased as my constituents continue to learn first-hand what this new law means for them and for their students and children. While Wisconsinites support holding schools accountable for results, they are concerned about the focus on testing that is the centerpiece of the President's approach.

In response to these concerns, I introduced with Senator Jeffords and others the Student Testing Flexibility Act, which would allow States and school districts that are meeting their adequate yearly progress, AYP, goals to waive the additional layer of testing required by NCLB, thus allowing them to maintain their existing testing programs. In addition, this bill would allow States to keep the Federal money allocated for developing and administering these new tests and to use that money to help those schools and districts that are not meeting their AYP goals. I am pleased that this legislation is supported by a wide range of Wisconsin and national education groups.

In addition, earlier this year I sent with some of my colleagues a letter to the chairman and ranking member of the Health, Education, Labor, and Pensions Committee requesting that the committee have a series of hearings on how the ongoing implementation of the NCLB is affecting schools and districts. We asked that these hearings focus on issues that are being raised by our constituents, including: the unique circumstances of rural and smaller school districts; the long-term effects that meeting the one-size-fits-all AYP provisions will have on students, schools, and school districts; the concern and likelihood that nearly all public schools may not be able to meet the goal of 100 percent proficient scores on reading and math tests by the 2013-2014 school year, even if those schools show a steady increase in student achievement each year; the NCLB sanctions structure; the effect that Federal funding that is well below the agreed-upon authorization levels for crucial programs such as Title I and special education is having on schools' ability to meet NCLB and State standards; the need for additional Federal funding for professional development, recruitment and retention, and for additional training for paraprofessionals, so that States and school districts can comply with requirements for having highly qualified teachers and paraprofessionals; the toll that preparation for the new federally mandated tests is having on, and will have on, the ability of teachers to spend time on innovative and exciting approaches to instruction and assessment, the instruction time available for non-tested subjects, such as social studies, art, music, and physical education, the strength of State academic standards, and the morale of students and educators; the ongoing efforts to align the NCLB and IDEA; the unique challenges that the accountability provisions pose for students with limited English proficiency; and the implementation of the supplemental services provisions, including implications for Federal civil rights law.

It is critically important that we understand the practical effect of the NCLB on the everyday classroom experiences of students and teachers. I have heard from many educators who are already seeing a narrowing of curricula and increased teaching to the test in preparation for the federally mandated tests in reading and math. One of the purposes of public education is to ensure that students have a well-rounded curriculum that gives them the skills that they need to succeed in life. I remain concerned that the approach encapsulated in the NCLB will produce a generation of students who know how to take tests, but who don't have the skills necessary to become successful adults. Test-taking has a place in public education, but it should not be the role of the Federal Government to tell schools how and when to require tests.

As an editorial that appeared earlier this week in the Appleton Post- Crescent so correctly points out, ``the more testing schools must do, the more time is taken from education that doesn't involve passing a test. And the more testing schools have to do--in the name of no child being left behind--the greater the chance that your child could be left with a less complete education.''

And, I am particularly disturbed that this appears to be only the tip of the testing iceberg. The President has said that he plans to propose even more federally mandated testing if he is reelected. Specifically, the President said, ``[a]s we make progress, we will require a rigorous exam before graduation.'' If this proposal were to be enacted, it would mean that students would be taking federally mandated tests in 8 of their 13 years of their elementary and secondary years.

And that's not just 8 tests. Beginning next year, students in grades 3-8 will take annual reading and math exams, which totals 12 tests over a student's career. In addition, the Federal Government requires that students be tested in reading and math in one high school grade, which is two more tests, for a total of 14. Beginning in the 2007-2008 school year, NCLB also requires that students be tested in science three times during their school careers (once in each of grades 3-5, 6-9, and 10- 12). That's three more tests, for a new total of 17 federally mandated tests. And if the President's new plan for a mandatory high school exit exam is enacted,

you can add one more test, bringing the total to 18 federally mandated tests over 13 years of school.

And this total does not include testing programs already in place at the State level, many of which have been thrown into disarray as States struggle to amend their existing tests to comply with the new NCLB requirements. Wisconsin currently tests students in reading in grade three through the Wisconsin Reading Comprehension Test, and in reading/ language arts, math, science, and social studies in grades four, eight, and ten with the Wisconsin Knowledge and Concepts Examinations. And this is in addition to regular classroom tests and quizzes and tests given at the district level by many of the 426 school districts in my state. And then, for those students hoping to go to college, there is the pre-SAT, the SAT, the ACT, and on and on.

The Wisconsin Legislature enacted a requirement for a high school graduation test in 1997. But that test, which was to be required of all students beginning with those in the graduating class of 2003, was delayed for one year due to State budget constraints, and was subsequently delayed for an additional 2 years for that same reason, pushing the requirement from the class of 2003 to the class of 2006.

Last year, as part of the State's 2004-2005 budget, the Wisconsin Legislature repealed the State graduation test, which many parents and educators in my State opposed and vigorously fought against for many years. Now it appears that the President wants to reinstate this requirement on the students of my State--and to impose it on the other 24 States that don't currently have such a test--over the will of the Wisconsin Legislature. And with States still unsure of the actual cost of the NCLB-mandated testing and little in the way of Federal funds to develop and implement it, another Federal testing requirement could bend the already dire budget situations in many States and school districts to the breaking point.

According to a new report from the Center on Education Policy, CEP, 20 States now require high school exit exams, and another five will require such tests by 2009. I support the right of State legislatures and local school districts to determine the frequency with which students are tested, including whether to require a high school exit exam. When I was a member of the Wisconsin legislature, I supported legislation that created statewide tests for the students of my State. But I opposed the extra layer of federally mandated tests piled onto students and teachers with the enactment of the No Child Left Behind Act, and I will oppose any proposal for a federally mandated high school exit exam.

Students, teachers, and schools are more than a test score, and education should be a well-rounded experience that is not narrowly focused on students passing a test to help their schools avoid being sanctioned by the Federal Government. Standardized tests measure where a particular student is at a particular day and time. These tests do not make allowances for outside factors such as test anxiety, illness, worry about a troubled home situation, or the fact that the child taking the test may not have eaten that day. To measure the performance of a school and its teachers and students on two test scores per grade does a disservice to these same students, teachers, and schools.

I will continue to monitor the effect of the No Child Left Behind Act on Wisconsin students, and I hope that the debate on this law, both in my State and nationally, will result in meaningful changes to this deeply flawed law that will ensure that each child is given the opportunity to succeed and that each school has the resources necessary to give these students that opportunity.

I ask unanimous consent to print the above-referenced editorial in the Record.

Mr. President, I am pleased to introduce the Computer Trespass Clarification Act of 2004, which would amend and clarify section 217 of the USA-PATRIOT Act. Section 217 addresses the interception of computer trespass communications. This bill would modify existing law to more accurately reflect the intent of the provision, and also protect against invasions of privacy.

Section 217 was designed to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking. The original Department of Justice draft of the bill that later became the PATRIOT Act included this provision. A section-by- section analysis provided by the Department on September 19, 2001, stated the following:

Current law may not allow victims of computer trespassing

to request law enforcement assistance in monitoring

unauthorized attacks as they occur. Because service providers

often lack the expertise, equipment, or financial resources

required to monitor attacks themselves as permitted under

current law, they often have no way to exercise their rights

to protect themselves from unauthorized attackers. Moreover,

such attackers can target critical infrastructures and engage

in cyberterrorism. To correct this problem, and help to

protect national security, the proposed amendments to the

wiretap statute would allow victims of computer attacks to

authorize persons ``acting under color of law'' to monitor

trespassers on their computer systems in a narrow class of

cases.

I strongly supported the goal of giving computer system owners the ability to call in law enforcement to help defend themselves against hacking. Including such a provision in the PATRIOT Act made a lot of sense. Unfortunately, the drafters of the provision made it much broader than necessary, and refused to amend it at the time we debated the bill in 2001. As a result, the law now gives the government the authority to intercept communications by people using computers owned by others as long as they have allegedly engaged in some unauthorized activity on the computer, and the owner gives permission for the computer to be monitored.

Only people who have a ``contractual relationship'' with the owner allowing the use of a computer are exempt from the definition of a computer trespasser under section 217 of the PATRIOT Act. Many people-- for example, college students, patrons of libraries, Internet cafes or airport business lounges, and guests at hotels--use computers owned by others with permission, but without a contractual relationship. They could end up being the subject of government snooping if the owner of the computer gives permission to law enforcement.

My bill would clarify that someone who has been given permission to use a computer by the owner or operator of that computer is not a computer trespasser. It would bring the existing computer trespass provision in line with the purpose of section 217 as expressed in the Department of Justice's initial explanation of the provision. Section 217 was intended to target only a narrow class of people: unauthorized cyberhackers. It was not intended to give the government the opportunity to engage in widespread surveillance of computer users without a warrant.

We don't know, of course, whether such surveillance is taking place. Unless criminal charges are brought against someone as a result of such surveillance, there would never be any notice at all that the surveillance has taken place. The computer owner authorizes the surveillance, and the FBI carries it out. There is no warrant, no court proceeding, no opportunity even for the subject of the surveillance to challenge the assertion of the computer owner that some unauthorized use of the computer has occurred.

The Computer Trespass Clarification Act would modify the computer trespass provision to protect against abuse, while still maintaining its usefulness in cases of denial of service attacks and other forms of hacking.

First, it would require that the owner or operator of the protected computer authorizing the interception has been subject to ``communications activity that threatens the integrity or operation of such computer.'' In other words, the owner has to be the target of some kind of hacking.

Second, the bill would clarify that to be excluded from the definition of computer trespasser, a person who has permission to use a computer does not need to have a contractual relationship granting that permission.

Third, the bill limits the length of warrant-less surveillance to 96 hours. This is twice as long as is allowed for an emergency wiretap. With four days of surveillance, it should not be difficult for the government to gather sufficient evidence of wrongdoing to obtain a warrant if continued surveillance is necessary.

In addition, the bill would require the Attorney General to annually report on the use of Section 217 to the Senate and House Judiciary Committees. Section 217 is one of the provisions that is subject to the sunset provision in the PATRIOT Act and will expire at the end of 2005. We in the Congress need to do more oversight of the use of this and other provisions of the PATRIOT Act in order to evaluate their effectiveness.

The computer trespass provision now in the law as a result of section 217 of the PATRIOT Act leaves open the possibility for significant and unnecessary invasions of privacy. The reasonable and modest changes to the provision contained in this bill preserve the usefulness of the provision for investigations of cyberhacking, but reduce the possibility of abuse. We must continually seek to balance the need for effective tools to fight crime and terrorism and the civil liberties of our citizens. The Computer Trespass Clarification Act strikes the right balance and I urge my colleagues to support it.

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

Mr. President, I am pleased to introduce the Computer Trespass Clarification Act of 2004, which would amend and clarify section 217 of the USA-PATRIOT Act. Section 217 addresses the interception of computer trespass communications. This bill would modify existing law to more accurately reflect the intent of the provision, and also protect against invasions of privacy.

Section 217 was designed to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking. The original Department of Justice draft of the bill that later became the PATRIOT Act included this provision. A section-by- section analysis provided by the Department on September 19, 2001, stated the following:

Current law may not allow victims of computer trespassing

to request law enforcement assistance in monitoring

unauthorized attacks as they occur. Because service providers

often lack the expertise, equipment, or financial resources

required to monitor attacks themselves as permitted under

current law, they often have no way to exercise their rights

to protect themselves from unauthorized attackers. Moreover,

such attackers can target critical infrastructures and engage

in cyberterrorism. To correct this problem, and help to

protect national security, the proposed amendments to the

wiretap statute would allow victims of computer attacks to

authorize persons ``acting under color of law'' to monitor

trespassers on their computer systems in a narrow class of

cases.

I strongly supported the goal of giving computer system owners the ability to call in law enforcement to help defend themselves against hacking. Including such a provision in the PATRIOT Act made a lot of sense. Unfortunately, the drafters of the provision made it much broader than necessary, and refused to amend it at the time we debated the bill in 2001. As a result, the law now gives the government the authority to intercept communications by people using computers owned by others as long as they have allegedly engaged in some unauthorized activity on the computer, and the owner gives permission for the computer to be monitored.

Only people who have a ``contractual relationship'' with the owner allowing the use of a computer are exempt from the definition of a computer trespasser under section 217 of the PATRIOT Act. Many people-- for example, college students, patrons of libraries, Internet cafes or airport business lounges, and guests at hotels--use computers owned by others with permission, but without a contractual relationship. They could end up being the subject of government snooping if the owner of the computer gives permission to law enforcement.

My bill would clarify that someone who has been given permission to use a computer by the owner or operator of that computer is not a computer trespasser. It would bring the existing computer trespass provision in line with the purpose of section 217 as expressed in the Department of Justice's initial explanation of the provision. Section 217 was intended to target only a narrow class of people: unauthorized cyberhackers. It was not intended to give the government the opportunity to engage in widespread surveillance of computer users without a warrant.

We don't know, of course, whether such surveillance is taking place. Unless criminal charges are brought against someone as a result of such surveillance, there would never be any notice at all that the surveillance has taken place. The computer owner authorizes the surveillance, and the FBI carries it out. There is no warrant, no court proceeding, no opportunity even for the subject of the surveillance to challenge the assertion of the computer owner that some unauthorized use of the computer has occurred.

The Computer Trespass Clarification Act would modify the computer trespass provision to protect against abuse, while still maintaining its usefulness in cases of denial of service attacks and other forms of hacking.

First, it would require that the owner or operator of the protected computer authorizing the interception has been subject to ``communications activity that threatens the integrity or operation of such computer.'' In other words, the owner has to be the target of some kind of hacking.

Second, the bill would clarify that to be excluded from the definition of computer trespasser, a person who has permission to use a computer does not need to have a contractual relationship granting that permission.

Third, the bill limits the length of warrant-less surveillance to 96 hours. This is twice as long as is allowed for an emergency wiretap. With four days of surveillance, it should not be difficult for the government to gather sufficient evidence of wrongdoing to obtain a warrant if continued surveillance is necessary.

In addition, the bill would require the Attorney General to annually report on the use of Section 217 to the Senate and House Judiciary Committees. Section 217 is one of the provisions that is subject to the sunset provision in the PATRIOT Act and will expire at the end of 2005. We in the Congress need to do more oversight of the use of this and other provisions of the PATRIOT Act in order to evaluate their effectiveness.

The computer trespass provision now in the law as a result of section 217 of the PATRIOT Act leaves open the possibility for significant and unnecessary invasions of privacy. The reasonable and modest changes to the provision contained in this bill preserve the usefulness of the provision for investigations of cyberhacking, but reduce the possibility of abuse. We must continually seek to balance the need for effective tools to fight crime and terrorism and the civil liberties of our citizens. The Computer Trespass Clarification Act strikes the right balance and I urge my colleagues to support it.

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

Madam President, I am sure that my colleagues will join me in congratulating the American athletes who competed in the 2004 Olympic Games in Athens, Greece.

The Olympics have a rich history, with records dating the first Olympic Games to 776 B.C. in Olympia, Greece. The early athletic contests allowed youths to highlight their physical prowess, with victory reflecting well upon the competitor's home city. The modern Olympic Games have endured for over a century, through times of war and peace, and this year, the Olympics returned to its origins.

The symbols of the Games--the motto, the flames, the rings--carry important meanings. The Olympic motto ``citius--altius--fortius'', which is Latin for ``faster--higher--stronger'' encourages all to strive to achieve their personal best. The Olympic flame, lit by the sun's rays in Olympia and passed around the world, burns bright while the competitions continue. The five Olympic rings represent the five continents, interwoven to demonstrate the universality of the Games.

Being an Olympian is a tremendous honor, and I commend the many athletes who represented our Nation well. America's 2004 Olympians are some of the finest athletes in the world. Dedicated to their sport, these individuals often devote years of their lives to training for the ultimate experience of competing in the Olympics. All competed well, and their hard efforts were rewarded as a remarkable 103 medals were earned by Americans in Athens.

I would like to particularly recognize the Olympians from my home State of Wisconsin. Fifteen athletes competing in the 2004 Olympic games have ties to Wisconsin, and I am proud of their efforts. These 15 athletes traveled to Athens to compete in a variety of sporting events, events that ranged from rowing to gymnastics to the modern pentathlon. It is my honor to recognize these fine competitors from Wisconsin:

Chris Ahrens. A graduate of Whitefish Bay High School and two-time Olympian, Chris earned a gold medal this year as a member of the men's eight rowing team.

Deirdre Demet-Barry. A seven-time national cycling champion originally from Milwaukee, Deirdre competed in women's cycling while in Athens.

Rebecca Giddens. A kayaker since age 10, this Green Bay native earned the bronze medal in the women's K1 flat kayak slalom.

James Gruenwald. Originally hailing from Greendale, James competed in his second Olympics in the men's Greco-Roman wrestling competition.

Dennis Hall. A proud cheesehead and Plover resident, Dennis competed in the men's Greco-Roman wrestling for his third Olympics.

Paul Hamm. A native of Waukesha, Paul won gold and silver medals in men's gymnastics events in his second Olympic Games.

Morgan Hamm. As a member of the U.S. men's gymnastics team, this Waukesha native helped lead the team to a silver medal.

Ben Holbrook. Ben is originally from Hartland and competed in the Men's quadruple sculls rowing competition in Athens.

Beau Hoopman. Raised in Plymouth, Beau rowed at the University of Wisconsin and won a gold medal in Athens with the men's eight rowing team..

Mary Beth Larsen-Iagorashvili. A graduate of Mukwonago High School who attended Marquette University, Mary Beth competed in the women's modern pentathlon.

Garrett Lowney. Athens was the second Olympic Games at which this Freedom resident competed in men's Greco-Roman wrestling.

Erin Mirabella. Erin, a native of Racine and former student at UW- Parkside, won the bronze medal for her performance in women's track cycling.

Jeff Nygaard. Jeff showed his Wisconsin roots when he named Brett Favre as a favorite athlete. From Madison, Jeff competed in men's beach volleyball.

Andrew Rock. A student at UW-La Crosse, Andrew won a gold medal as a member of the men's 1,600 meter relay in Athens.

Matt Smith. A graduate of the University of Wisconsin, Matt currently serves our country as an infantry captain for the U.S. Army. He competed as a rower in the men's lightweight four.

Neil Walker. A swimmer originally from Verona, Neil earned two Olympic medals--a bronze in the men's 4 x 100 freestyle relay and a gold medal in the men's 4 x 100 medley relay.

Mike Wherley. A Sun Prairie High School graduate, Mike rowed in his first Olympics with the men's four in Athens.

I offer my congratulations to these athletes. They demonstrated great passion and dedication to their sport and to the spirit of the Olympics. They made Wisconsin proud.

I ask unanimous consent to speak as if in morning business.

Mr. President, I rise to join my colleagues in expressing my continued grave concern about the situation in Darfur, Sudan. For months now, Members of Congress have come to the floor to express their outrage at the situation in Darfur. All credible evidence indicates that what is unfolding in Darfur is genocide. Already, an estimated 30,000 civilians have been killed. More than 130,000 refugees have fled to Chad, and more than 1 million people have been displaced.

Numerous credible reports document the widespread use of rape as a weapon against female civilians. Entire communities have been razed, mosques destroyed, and wells poisoned, guaranteeing that a grave humanitarian crisis will continue to unfold for many months or even years. And now reports indicate that terrified survivors are being forced to return to their homes, which have been utterly destroyed, in a context of serious insecurity by Government officials who apparently view their own suffering citizens as something like a source of embarrassment.

Those of us who have followed developments in Sudan for many years see a horrifying familiarity in this crisis. The Government of Sudan has deliberately provoked a humanitarian catastrophe before in an attempt to repress dissent, and so for months now Members have come to the floor to speak out about this crisis.

I have written and spoken to administration officials, to U.N. officials, and to European officials to call for action and a firm unified message to Khartoum. I have raised the issue, as have

many colleagues, in numerous Senate Foreign Relations Committee hearings. This April, my colleague, Senator Brownback, and I introduced S. Con. Res. 99 condemning the actions of the Sudanese Government. I have joined many of my colleagues in supporting Senator DeWine's effort to direct urgently needed funds to Darfur for humanitarian relief, and I am a cosponsor of S. Con. Res. 124 acknowledging the genocide that is unfolding in Darfur, and I commend the leadership of Senators Corzine and Brownback, the sponsors of this legislation.

This is a tremendously difficult and complex situation. I commend the Secretary of State for traveling to Darfur to raise the profile on this issue. I commend the efforts of the USAID to respond to the urgent humanitarian needs in CHAD and IDPs in Darfur.

The administration can and must do more. First, the President needs to put in charge a senior official who can speak authoritatively to Khartoum and to key regional players, someone who is focused on Sudan exclusively each and every day. It is almost inexplicable that this has not been done to date.

Since our former colleague, Senator Jack Danforth, left his post as the President's special envoy for Sudan to serve as U.S. Ambassador to the United Nations, it appears that no one has been in charge of this issue on a day-to-day basis while this genocide unfolds. What kind of signal does this send about our seriousness? We need someone senior, with knowledge of the African and Arab worlds, put in place today to coordinate U.S. policy and deliver authoritative U.S. messages on a daily basis, to seize on fleeting opportunities, eliminate any confusion, match available resources with urgent needs, and constantly hold the Sudan Government's feet to the fire.

We also need serious thinking today about how to improve the security situation in Darfur. To date, the Government of Sudan has utterly failed to honor its commitments to disarm the janjaweed and to stop their brutal campaign.

Our strategy cannot simply consist of waiting for them to act. This is the same regime that orchestrated this misery in the first place. We cannot leave them in the driver's seat. So even as we push diplomatically for meaningful action from Khartoum, even as we do the hard work of building a strong, unified multilateral coalition to send a clear message about the serious consequences that will result from continued intransigence, we must develop plans to help people in spite of the Government of Sudan's policies. That means finding a way to provide security for Darfur's vulnerable populations and for the humanitarian organizations working to assist them.

We need to be working now to collect testimony and evidence so that those responsible for atrocities in Darfur can be held accountable for their crimes. This must not be an afterthought. It is a central part of our obligation. And in addition to appropriately and sensitively collecting testimony, we should be making plans today to develop strategies to reach the survivors of rape in Darfur with medical assistance, counseling, and community-based support strategies to help address issues of stigma.

Ultimately, we need to think about underlying issues of political disenfranchisement that stoked the initial conflict in Darfur. The North-South peace process made real progress, and I applaud the efforts of the many African, European, and American diplomats who worked so hard to help the parties come to agreement. But the process only created real political space for two entities, the Government of Sudan and the Sudanese People's Liberation Movement of the South. Neither the South nor the North are monolithic. We need to think today about political accommodations that can give the disenfranchised a voice in determining their own destiny.

I share the outrage of my colleagues. But I know that the people of Darfur--the malnourished children, the victims of rape, the broken families struggling to survive--this people need more than our outrage. They need our action.

I yield the floor.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded and I be permitted to speak as in morning business.

Mr. President, when major and hard-fought legislation nears enactment, the rhetoric on this floor can get a little overheated. Supporters of the measure sometimes overstate the importance of the legislation or exaggerate its benefits. Opponents make doomsday predictions of what will happen if the bill becomes law. Only the passage of time can answer those arguments, but by the time that answers are available, the Senate has often has moved on to other battles.

Today, I want to take a few minutes on the floor to call the attention of my colleagues and the American people to some promising indications that the doomsday predictions of opponents of the McCain- Feingold bill have not come to pass. As we told the Senate at the time, McCain-Feingold will not solve every problem in our campaign finance system, and it hasn't. Lately, there has been significant controversy over so-called ``527 organizations,'' which the FEC has permitted to operate in violation, I believe, of the Federal Election Campaign Act of 1974.

Nonetheless, McCain-Feingold is working as it was intended to work. It closed the political party soft money loophole, and it has restored some sanity to a system that had truly spun out of control over the last several elections. While it is still too early to reach a final conclusion, it appears that the cynics and the doubters were wrong. And that is good news for the American people.

When the Senate considered the McCain-Feingold bill in March 2001, we had just finished a hotly contested Presidential election in 2000. Nearly $500 million of soft money was raised in that election by the two political parties, almost double what was raised in the 1996 election. Nearly two-thirds of that total was given by just 800 donors, who contributed over $120,000 each to the parties. The biggest donors contributed far more than that. The most generous soft money donor, AFSCME, gave almost $6 million, all to the Democratic party. SEIU gave a total of $4.3 million, mostly to the Democrats. AT&T gave a total of $3.7 million to the parties, the Carpenters and Joiners Union $2.9 million, Freddie Mac and Philip Morris, $2.4 million. Then we had the ``double givers''--companies that gave money to both parties. In 2000, there were 146 donors that gave over $100,000 in soft money to both of the political parties.

The appearance of corruption created by this avalanche of soft money was overwhelming. The public knew it; and we all knew it in our hearts. And the Supreme Court knew it when it upheld the McCain-Feingold bill against constitutional challenge in the case of McConnell v. FEC. The Court stated the following:

As the record demonstrates, it is the manner in which

parties have sold access to federal candidates and

officeholders that has given rise to the appearance of undue

influence. Implicit (and, as the record shows, sometimes

explicit) in the sale of access is the suggestion that money

buys influence. It is no surprise then that purchasers of

such access unabashedly admit that they are seeking to

purchase just such influence. It was not unwarranted for

Congress to conclude that the selling of access gives rise to

the appearance of corruption.

In this election cycle, I am happy to report, political party soft money is no more. Not reduced, not held in check, not capped--it is just gone. I consider this one of the most significant developments in American politics in the last 50 years. In 2002, a colleague told me on this floor that he had just finished making an hour of calls asking for large soft money contributions. He said he felt like taking a shower. Now, many of my colleagues, including some who did not support our bill, tell me how happy they are to not have to make those calls any more. That's a huge change in how we spend our time, and how we relate to people who have a big stake in what we do on this floor.

But what about the political parties? When we were debating McCain- Feingold, we had a real difference of opinion on how the bill would affect the parties. On one side were Senators who

argued passionately that the bill would kill the political parties.

One Senator said the following during our debate:

This legislation seeks, quite literally, to eliminate any

prominence for the role of political parties in American

elections.

This legislation favors special interests over parties and

favors some special interests over other special interests.

Equally remarkable is the patchwork manner in which this

legislation achieves its virtual elimination of political

parties from the electoral process.

The same Senator claimed:

But under this bill, I promise you, if McCain-Feingold

becomes law, there won't be one penny less spent on

politics--not a penny less. In fact, a good deal more will be

spent on politics. It just won't be spent by the parties.

Even with the increase in hard money, which I think is a good

idea and I voted for, there is no way that will ever make up

for the soft dollars lost.

There isn't any way, he said, that they will ever make up for the soft dollars lost.

Twenty months after the McCain-Feingold bill went into effect as the law of the land, our two great political parties are alive and well. Apparently they do have something to offer to the American people other than fundraisers for lobbyists. A new study by Anthony Corrado and Tom Mann of the Brookings Institution reports that through the first 18 months of the 2004 election cycle, the national party committees raised $615 million in hard money alone, which was more than the $540 million that they had raised in hard and soft money combined at a comparable point in the 2000 election cycle. Let me say that again. As of June 30, the parties had raised more in hard money in this election cycle than they had raised in hard and soft money combined at a similar point in the 2000 cycle.

Remember the Senator who said there was ``no way'' that the parties could make up for the soft money they would lose under the McCain- Feingold bill. Well it turns out that Senator was wrong.

The parties are not just surviving, they are thriving. And they are doing this not just by taking advantage of the increased contribution limits instituted by McCain-Feingold. Corrado and Mann state the following:

While these increases in the contribution limits have

provided the parties with millions of additional dollars, the

growth in party funding in 2004 is largely the result of a

remarkable surge in the number of party donors. Both parties

have added hundreds of thousands of new small donors to their

rolls.

The numbers are truly astonishing. The Republican National Committee has added a million new donors. The NRCC added 400,000 new contributors in 2003. The DNC has recruited more than 800,000 new small donors through direct mail alone. And these numbers don't include any new online contributions in 2004. And, of course, they don't include the hundreds of millions of dollars in hard money raised by the two major party presidential candidates.

The parties are stronger than they were before not just because they have raised more money than in 2000. Small contributors are a much better indicator of strength than big contributors. Small contributors volunteer, they are involved, they vote, and they inspire others to contribute and vote. I believe McCain-Feingold saved the political parties from the oblivion to which they were sending themselves with their reliance on the easy fix of soft money.

The argument over the effect of the bill on the political parties was just one of the disagreements we had when the bill was considered back in 2001. Another dispute concerned what would happen to all that soft money that had previously been contributed to the parties. Opponents of the bill expressed absolute certainty that the money contributed to the parties would simply migrate to less accountable outside groups. One Senator said the following during our debate:

Why do we want to ban soft money to political parties, that

funding which is now accountable and reportable? This ban

would weaken the parties and put more money and control in

the hands of wealthy individuals and independent groups who

are accountable to no one.

Another Senator quoted a prominent Republican lawyer who

said: ``The world under McCain-Feingold is a world where the

loudest voices in the process are third-party groups.''

Those of us who supported the bill certainly recognized that some donors would look for alternative ways to influence the political process. But we also thought that much of the money that was being given to the political parties was being given under duress. We argued that if Members of Congress and other public officials weren't asking for the money, much of it wouldn't be given at all. We had heard from countless corporate executives that the soft money system, which many had called legalized bribery, was really more like legalized extortion. I will never forget the words of Ed Kangas the former CEO of Deloitte Touche Tohmatsu. He said:

Businesses should not have to pay a toll to have their case

heard in Washington. There are many times when CEOs feel like

the pressure to contribute soft money is nothing less than a

shakedown.

In 1999, on this floor, I said the following in a debate with another Senator who actually supported the soft money ban, but asserted that soft money would simply flow to outside groups:

I have this chart. It is a list of all the soft money

double givers. These are corporations that have given over

$150,000 to both sides. Under the Senator's logic, these very

same corporations--Philip Morris, Joseph Seagram, RJR

Nabisco, BankAmerica Corporation--each of these would

continue making the same amount of contributions; they would

take the chance of violating the law by doing this in

coordination with or at the suggestion of the parties, and

they would calmly turn over the same kind of cash to others,

be it left-wing or right-wing independent groups?

I have to say . . . I am skeptical that if they cannot hand

the check directly to the political party leaders, they will

take those chances.

On this dispute, with 3\1/2\ months to go before the election, the jury is still out. But once again, the early indications are that the doomsday predictions of opponents of the bill will not come to pass.

Not long ago, the Wall Street Journal reported that it surveyed the 20 top corporate donors in the 2002 election cycle and more than half, including Microsoft, Citigroup, and Pfizer, are resisting giving large contributions to the outside groups, the 527s, that are trying to raise unlimited contributions since the parties can no longer accept them. As the article noted:

The reticence illustrates an uneasiness on the part of some

of the corporations to get sucked back into the world of

unlimited political contributions that they thought campaign

reform had left behind.

According to a Washington Post article in June:

[E]lection law lawyers said corporations are showing

significant reluctance to get back into making ``soft money''

donations after passage of the McCain-Feingold law.

According to the Center for Public Integrity, which maintains the most complete database of information on 527s using the reports required by the disclosure bill we passed in 2000, 527s that focus on federal elections along with labor-funded 527s have raised approximately $150 million as of June 30. This is far less than the $254 million that had been raised in soft money by the parties at a similar point in the 2000 election cycle and less than half of the $308 million raised in the first 18 months of the 2002 cycle. It is, of course, possible that 527 fundraising will pick up significantly in the wake of the FEC's determination in May that it will likely not regulate these groups as political committees in this election cycle. But the underlying problem with raising money for these organizations remain. That is very simple. It is central to this whole issue. They cannot offer the kind of access and influence that made the parties such effective soft money seekers prior to the enactment of McCain-Feingold.

There is no doubt that ideologically motivated wealthy individuals will continue to seek ways to influence elections. Most of the money being donated to the 527s is coming from such people. I continue to believe that many of these groups, since their stated goal is to influence federal elections, should be required to register as federal PACs, which can accept contributions of only $5,000 per year from individuals. But even if they continue to operate outside the law, they are not going to replace the political parties. Without significant corporate support, they simply cannot raise the kind of money that the parties raised in 2000, much less the amounts that would have been raised under the old system in this election cycle.

So to those who forecast or believed the doomsday scenarios back in 2001 and 2002 when we considered the bill, or who continue to believe them today, I suggest you look at the numbers. McCain-Feingold is working, and the Senate should be proud that it passed. As we approach the 2004 elections, and the airwaves become saturated with political advertising, note the difference. Party ads are paid for with the contributions of millions of hardworking Americans proud to participate in the political process and looking to parties and to their government to represent them, not the special interests that used to write the big checks.

I yield the floor.

I suggest the absence of a quorum.

The PRESIDENT OFFICER. The clerk will call the roll.

Mr. President, I opposed the Morocco free-trade agreement. Unfortunately, it is one more in what has become an increasing number of deeply flawed trade agreements. These agreements continue to jeopardize U.S. jobs and businesses. They undermine environmental, health, and safety protections. They hinder our ability to loosen restrictions on reimportation of FDA-approved prescription drugs. They limit our ability to use our tax dollars to help our own businesses and workers through buy American policies, and to discourage corporations from reincorporating overseas, and they limit the ability of our democratic institutions to regulate essential services.

But though I opposed this trade agreement, I want to underscore my firm belief that our bilateral relationship with Morocco is extremely important. We need our Moroccan partners if we are to succeed in pursuing our first foreign policy priority: the fight against al-Qaida and associated global terrorist organizations. The United States cannot afford to ignore this critical North African ally which has suffered, as we have, brutal terrorist attacks. We cannot fight terrorists without a strong international coalition sharing crucial intelligence, drying up sources of financial and political support for terrorism, and tracking down terrorist leaders. In order to have a strong partner to count on, the U.S. must support the Moroccan people in their fight for basic human rights, their efforts to combat corruption, and their work to create the kinds of economic opportunities that the country's large population of youth need. Without these efforts, this population will stagnate and resentment will grow. The U.S. should be cultivating future partners in Morocco, not future antagonists.

Madam President, I discuss a very important issue to my home State of Wisconsin, and that is the time limits placed on Supplemental Security Income, SSI, benefits for refugees and other humanitarian immigrants.-

Due to a provision included in the 1996 welfare reform law, some refugees and other humanitarian immigrants legally residing in the United States, including many members of the Hmong ethnic group, are beginning to lose their eligibility for SSI. The provision states that refugees and other humanitarian immigrants are only eligible for SSI for 7 years. Some of these legal immigrants have already lost their benefits, and for others the 7-year deadline is quickly approaching.

Many of the Hmong who currently reside in Wisconsin and throughout the U.S. provided invaluable assistance to the U.S. military during the Vietnam War. The Hmong made great sacrifices in fighting against communists in Laos and providing intelligence to the CIA, and could no longer stay in the region out of fear for their safety. In return for their sacrifices for our Nation, we relocated them to the United States, along with their families, to live under refugee or humanitarian immigrant status.

The refugees and other humanitarian immigrants who depend on SSI are elderly or disabled and often lack any other financial resources. Many Hmong currently have applications for citizenship pending, and have been waiting for over 2 years for their applications to be processed by the Immigration and Naturalization Service and now the Department of Homeland Security. Others are suffering from serious mental or physical disabilities that prevent them from completing the requirements necessary to obtain citizenship. Losing their SSI eligibility will cause significant strain to those Hmong who rely on SSI as their only financial means.

I am proud to cosponsor S. 2623, the SSI Extension for Elderly and Disabled Refugees Act, which was introduced by Senator Smith. This bill would extend the 7-year deadline by 2 years, giving those refugees who depend on SSI some additional time to navigate the naturalization process.

It is my sincere hope that this bill will be taken up and passed quickly, since time is of the essence for this population. Many of the Hmong risked their lives to help the United States and I believe that the U.S. Government should do all it can to provide for them in their time of need.

Mr. President, I oppose the nomination of William G. Myers to the Ninth Circuit Court of Appeals. After attending the hearing on his nomination, listening to his testimony, and reviewing his responses to my written questions, I am not persuaded that Mr. Myers can set aside his personal views and objectively evaluate cases that come before him. Many times during the nomination hearing, Mr. Myers simply evaded or refused to answer questions that were posed to him, claiming that he could not comment on an issue that could come before him if he is confirmed.

This was not the approach taken by at least some of President Bush's nominees. Then-Professor, now-Judge Michael McConnell, for example, was forthcoming in his testimony and answers to written questions. He convinced me in his hearing that he would put aside his personal views if he were confirmed to the bench. Mr. Myers did not.

Since Mr. Myers has never served as a judge, his published articles, his past legal work, his legal opinions at the Department of the Interior, and his testimony before the Judiciary Committee are all we have to assess his legal philosophy and views. This nominee did not simply make a stray comment that can be interpreted as indicating strong personal disagreement with our nation's environmental laws; he has a long record of extreme views on the topic.

Mr. Myers has called the Clean Water Act an example of ``regulatory excess.'' He has stated that critics of the administration's policies are the ``environmental conflict industry.'' He has stated that conservationists are ``mountain biking to the courthouse as never before, bent on stopping human activity wherever it may promote health, safety, and welfare.'' He even compared the management of public lands to King George's ``tyrannical'' rule over American colonies.

Over 175 environmental, Native American, labor, civil rights, women's rights, disability rights, and other organizations oppose the nomination of Mr. Myers. This opposition speaks volumes about the concern that many potential litigants have about his views on a diverse range of issues that would come before his court. Rather than explaining what his views were during the nomination hearing or in responses to follow-up questions, Mr. Myers repeatedly ducked questions posed by me and my colleagues.

For example, during the hearing Mr. Myers was asked to identify which regulations he considered to be ``tyrannical.'' After pointing out that he wasn't criticizing Government employees, which obviously wasn't the question, Mr. Myers finally identified a previous Federal rangeland policy. Yet, when pressed, Mr. Myers would not say that he personally believed these regulations were unneeded, but that he was merely ``advocating on behalf of my clients.'' This is what all nominees say, of course, when challenged about past statements made on behalf of clients, but since Mr. Myers has never been a judge or a law professor, we have no other record to evaluate. And since he was repeatedly unwilling to tell us about his personal views in his hearing, we certainly cannot ignore his previous published statements on important legal issues that he will be called upon to decide.

Mr. Myers's views on the jurisdiction of Federal environmental laws, which he has called ``top down coercion,'' also concern me. Mr. Myers authored a Supreme Court amicus brief on behalf of the National Cattlemen's Beef Association and others in an important case dealing with the jurisdiction of the Clean Water Act, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. The SWANCC case involved a challenge to the Federal Government's authority to prevent waste disposal facilities from harming waters and wetlands that serve as vital habitats for migratory birds. Mr. Myers argued in this brief that the commerce clause does not grant the Federal Government authority to prevent the destruction and pollution of isolated interstate waters and wetlands. The Department of Justice, on behalf of the Army Corps and EPA, has filed approximately 2 dozen briefs in Federal court since the SWANCC decision. DOJ has consistently argued that the Clean Water Act (CWA) does not limit coverage of the Clean Water Act to navigable-in-fact waters.

When I asked Mr. Myers about his view of the Clean Water Act, Mr. Myers would not say whether he agrees with this administration's consistent interpretation of the SWANCC case. He would not provide any information on how he reads the Supreme Court's SWANCC decision other than saying that it is ``binding precedent'', nor would he state what waters, if any, should not receive Federal Clean Water Act protection post-SWANCC. His refusal to respond to these questions gives me pause because of a recent Ninth Circuit decision that ruled that the SWANCC decision should be read narrowly and that wetlands, streams and other small waters remain protected by the statute and implicitly that the rules protecting those waters are constitutional. While Mr. Myers indicated that he would follow this Ninth Circuit precedent, he refused to elaborate on his views on this crucial issue.

In follow-up questions, I also asked Mr. Myers about a 1994 article he wrote for the National Cattlemen Beef's Association, which he also represented in the SWANCC case. Myers wrote that environmental organizations have:

aggressively pursued their goals before friendly judges who

have been willing to take activist positions and essentially

legislate from the bench. No better example can be found than

that of wetlands regulation.

Mr. Myers argued:

The word ``wetlands'' cannot be found in the Clean Water

Act. Only through expansive interpretation from activist

courts has it come to be such a drain on the productivity of

American agriculture.

Mr. Myers' answers to my questions about this article were not forthcoming. Mr. Myers would not list any of the cases he was referring to in that article or any cases of which he had subsequently become aware in which there has been an ``expansive interpretation from activist courts'' of ``wetlands regulation.'' Nor could he provide me with his analysis of United States v. Riverside Bayview Homes, Inc., the 1985 case in which the United States Supreme Court unanimously upheld the Reagan administration's application of the Clean Water Act to protect wetlands. Mr. Myers stated that he considered the case to be binding precedent, which of course it is, but that doesn't shed much light on his views on the Clean Water Act.

I am also deeply troubled by Mr. Myers's record as Solicitor General at the Department of the Interior. During his tenure as the chief lawyer for the Department, Mr. Myers authored a very controversial Solicitor's opinion, and approved an equally controversial settlement. That Solicitor's opinion overturned a previous ruling regarding the approval of mining projects and greatly limited the authority of the Interior Department to deny mining permits under the Federal Land Policy Management Act--FLPMA.

FLPMA amends the Mining Law of 1872 in part by requiring that:

in managing public land the Secretary shall, by regulation or

otherwise take any action necessary to prevent the

unnecessary or undue degradation of public lands.

In the Solicitor's opinion, Mr. Myers interpreted this law to mean that the Government could only deny a project to prevent unnecessary and undue degradation of public lands. Thus, if the

proposed mining activity is ``necessary,'' then Mr. Myers declared that the Government would have no authority to prevent a mine from going forward, even if it would harm sacred Native American grounds, historic sites, or environmentally sensitive areas. This legal opinion interpreting DOI regulations is one of the only guides we have to evaluate how a Judge Myers would interpret statutes

Last year, a Federal court found that Mr. Myers's opinion

misconstrued the clear mandate of FLPMA, which by its plain

terms vests the Secretary of the Interior with the

authority--indeed the obligation--to disapprove mines that

``would unduly harm or degrade the public land.''

In response to questions posed about this opinion at the hearing, Mr. Myers could not adequately explain his statutory interpretation of ``unnecessary or undue,'' nor could he articulate his rationale for finding that the word ``or'' in the statute actually meant ``and.''

After Myers's opinion, Secretary Norton approved the mining permit for the 1600-acre cyanide heap-leaching Glamis gold mine located on sacred tribal lands. Tribal leaders have called the Myers' legal opinion and the resulting decision to approve the Glamis mine ``an affront to all American Indians.'' The National Congress of American Indians, which includes more than 250 American Indian and Alaska Native tribal governments, formally opposes the Myers nomination.

I have discussed my concerns about this nominee at some length because I wanted to show that my opposition to Mr. Myers is not based on a single intemperate remark he has made as an advocate. I simply am not convinced that Mr. Myers will put aside his personal policy views and fairly interpret and apply the law as passed by Congress. He has shown a willingness to disregard clear statutory language as Solicitor General of the Department of the Interior.

It is not enough for Mr. Myers to pledge that he will follow Supreme Court precedent. As we all know, the Supreme Court has not answered every legal question. Circuit court judges are routinely in the position of having to address novel legal issues. Mr. Myers's writings and speeches raise the question of whether he has prejudged many important legal questions. His answers to committee questions did not satisfy me that he has not. I will vote ``No'' on the nomination.

I yield the floor.

Mr. President, I will support the amendment offered by the Senator from Ohio, Mr. DeWine, and the Senator from Massachusetts, Mr. Kennedy, but in doing so I also want to note my concern about the potential for unconstitutional infringement on commercial speech that the amendment may engender in the regulations it directs to be promulgated to regulate tobacco advertising. There is little doubt that the health of our citizens, and in particular the health of our children, are a substantial governmental interest. And given that substantial interest, some regulation of tobacco advertising may be appropriate.

Further, the amendment appropriately sets forth some safeguards that strive to prevent unconstitutional infringement on commercial speech, and I commend the authors for including that sensible protection. Moreover, in the wake of the Lorillard case in 2001, we now have a somewhat clearer legal standard in this area that can guide these proposed regulations.

But the rights spelled out in the first amendment of our Constitution are so fundamental to our liberties that we must be especially sensitive to the potential for Government overreaching. For that reason, while I will support the amendment, I will also be monitoring this aspect of the amendment closely as regulations of tobacco advertising are developed and implemented.

Mr. President, I thank the Senator from North Dakota for his courtesy in letting me make a brief statement before he makes his statement.

I rise today to express my strong opposition to the United States- Australia Free Trade Agreement and the legislation that has been introduced to implement it. This is the latest in a string of deeply flawed trade agreements. It is a bad deal for dairy farmers, it is a bad deal for consumers, and it is a bad deal for Wisconsin.

The agreement undermines our dairy industry by displacing the domestic milk supply. It proposes to increase quota access to the U.S. market for Australia's dairy producers, while failing to address the flood of milk protein concentrate imports that is entering the country through a tariff loophole and that has been harming U.S. dairy farmers for some time. There can be no doubt that this agreement will put downward pressure on dairy prices and will further accelerate the loss of dairy farms in Wisconsin and across the Nation, which is something I have been working hard to stop.

Wisconsin is still the No. 1 producer of cheese in the United States. But this agreement will hurt Wisconsin cheesemakers as they attempt to compete against the ever-rising flood of Australian imports. By signing this agreement without addressing MPCs, the administration turned a blind eye to the concerns of the Wisconsin dairy industry.

The adverse effects of the agreement are not limited to our dairy farmers. During the informal mock markup, a majority of the Senate Finance Committee expressed concerns about safeguards to protect American ranchers and cattle producers from unfair imports of beef products. Those concerns underscore the importance of the administration consulting and working with Senators in the drafting of the implementing legislation.

Instead of honoring the informal process set forward in the trade promotion authority, the administration and the Senate leadership ignored these concerns. The result is to further undermine the ability of the Senate to weigh in on trade agreements, which was already greatly weakened by the passage of fast-track authority.

This is not the only problem with the trade agreement between the United States and Australia. As an original cosponsor of bipartisan legislation that would allow Americans to safely purchase prescription drugs from countries including Australia, I am particularly troubled by reports that this agreement would effectively ban reimportation of prescription drugs from Australia.

In February, I wrote to the Senate Finance Committee and urged them to address this issue before the unamendable legislation implementing the trade agreement was brought to the Senate floor for a vote. Now, reports raise real questions about whether Congress can repeal the trade agreement's ban on reimportation of prescription drugs from Australia, even if it later passed legislation permitting reimportation. I do not see why we should be voting now on a trade agreement that would potentially tie the hands of both Australia and the United States on this vitally important issue.

This legislation may well be a template for future trade agreements to include similar provisions that restrict the safe reimportation of drugs. I strongly disagree with efforts by trade negotiators to address an issue that Congress is currently actively considering. Congress should be setting policy on an issue as important as the importation and the reimportation of prescription drugs, not our trade negotiators.

There continue to be many concerns about the impact of this agreement on the U.S. health care system, particularly the Federal programs aimed at helping our veterans, our seniors, and our neediest citizens. These questions need to be resolved to ensure access to safe and affordable prescription drugs.

I have introduced a bill, S. 1994, which would address what I believe is one of the biggest flaws of the new Medicare prescription drug benefit. My bill would allow Medicare to negotiate the prices of prescription drugs offered under this new benefit. There is widespread support for giving Medicare this authority. It only makes sense we let Medicare use its considerable leverage to help lower the cost of prescription medicines for seniors. But there are questions about how this agreement would impact Medicare's ability to negotiate drug prices, should legislation such as mine be passed by Congress.

We need more time to answer these questions and to fully understand the possible interaction of this agreement with legislation to allow the safe reimportation of prescription drugs. Trade promotion authority provides expedited consideration of trade agreements, but we are well ahead of any deadlines imposed. This Chamber could easily have waited until next week or even into September to consider this measure. With only 20 hours of debate allowed, the Senate should not have rushed headlong into this debate today. There is simply no excuse for Congress hastily taking up the Australia Free Trade Agreement before resolving these questions.

The administration presented a bad deal to Congress and the American people. Not only will this agreement hurt Wisconsin's dairy industry, but the whole process has undermined Congress's constitutional authority over trade policy and it has weakened our ability to make policy. For those reasons, I will oppose the United States-Australia Free Trade Agreement implementing legislation, and I urge my colleagues to vote against this measure.

I yield the floor.