Floor Statements

Mr. President, today I am introducing the Meat and Poultry Pathogen Reduction Act of 2003. This legislation, commonly known as Kevin's Law, is dedicated to the memory of 2-year-old Kevin Kowalcyk, who died in 2001 after eating a hamburger contaminated with E.coli H7:0157 bacteria. Passage of this bill is vital because on December 6, 2001, the 5th Circuit Court of Appeals upheld and expanded an earlier District Court decision that removes the U.S. Department of Agriculture's, USDA, authority to enforce its Pathogen Performance Standard for Salmonella. The 5th Circuit's decision in Supreme Beef v. USDA, Supreme, seriously undermines the sweeping food safety changes adopted by USDA in its 1996 Hazard Analysis Critical Control Point and Pathogen Reduction, HACCP, rule.

More recently, there was another court case that calls into question USDA's authority to enforce its microbiological performance standards. A company called Nebraska Beef sued USDA after the Department tried to shut down the plant for numerous alleged food safety violations. The judge in the case granted a temporary restraining order, preventing USDA to take enforcement action.

According the 5th Circuit's opinion in Supreme and the Nebraska Beef decision, today, there is nothing USDA could do to shut down a meat grinding plant that insists on using low-quality, potentially contaminated trimmings. These decisions seriously undermine the new meat and poultry inspection system.

The Pathogen Reduction Rule recognized that bacterial and viral pathogens were the foremost food safety threat in America, responsible for 5,000 deaths, 325,000 hospitalizations and 76 million illnesses each year. To address the threat of foodborne illness, USDA developed a modern inspection system based on two fundamental principles.

The first was that industry has the primary responsibility to determine how to produce the safest products possible. Industry had to examine their plants and determine how to control contamination at every step of the food production process, from the moment a product arrives at their door until the moment it leaves their plant.

The second, even more crucial principle was that plants nationwide must reduce levels of dangerous pathogens in meat and poultry products. To ensure the new inspection system accomplished this, USDA developed Pathogen Performance Standards. These standards provide targets for reducing pathogens and require all USDA-inspected facilities to meet them. Facilities failing to meet a standard are shut down until they create a corrective action plan to meet the standard.

So far, USDA has only issued one Pathogen Performance Standard, for Salmonella. The vast majority of plants in the U.S. have been able to meet the new standard, so it is clearly workable. In addition, USDA reports that Salmonella levels for meat and poultry products have fallen substantially. Therefore the Salmonella standard has been successful. The 5th Circuit Court's and the Nebraska Beef decisions threaten to destroy this success and set our food safety system back years.

The other major problem is we have an industry dead set on striking down USDA's authority to enforce meat and poultry pathogen standards. Ever since the original Supreme decision, I have spent untold hours trying to find a compromise that will allow us to ensure we have enforceable, science-based standards for pathogens in meat and poultry products. I have introduced bills to address this issue and I have even worked with industry leaders to reach a reasonable compromise.

However, despite repeated attempts to address industry concerns, industry has continually backtracked and moved the finish line. Many times, I have made changes in my legislation to address their ``pressing'' concern of the moment only to have them come back and say we hadn't gone far enough. We cannot let a few bullies in the meat and poultry industry place our children, our families at a increased risk of getting ill or dying, because some of the industry want to backtrack on food safety.

In addition, the recent announcement that a cow in Alberta, Canada tested positive for bovine spongiform encephalopathy, BSE, otherwise known as ``mad cow disease'', provoked the U.S. government to immediately close the U.S.-Canadian border for the trade at beer and beef products. I applaud the current Administration for taking this action to ensure the safety of our Nation's food supply until more information is made available about the true extent of the problem.

And without downplaying the seriousness of that horrible disease, I think its necessary to look at the impact of BSE in light of other food borne illnesses. Researchers believe that BSE is linked to variable Creutzfeldt-Jakob,

vCJD, disease. Since its onset in Britain in 1995, 129 people have died worldwide from vCJD. Foodborne pathogens, on the other hand, have cause 5000 deaths, 125,000 hospitalizations, and 76 million illnesses each year. The numbers speak for themselves.

The swift and comprehensive response provoked by a single diseased cow in a neighboring country stands in stark contrast to the way our government currently responds to outbreaks of foodbornes illness in our country today. USDA has the ability to shut down the trade from the biggest importer of beef into out country on suspicions of possible food safety problems, but cannot even temporarily shut down one plant that USDA knows has problems.

I plan to seek every opportunity to get this language enacted. I think it is essential, both to ensuring the modernization of our food safety system, and ensuring consumers that we are making progress in reducing dangerous pathogens.

I hope that both parties, and both houses of Congress will be able to act to pass this legislation without delay. The public's confidence in our meat and poultry inspection system is at stake.

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

Mr. President, today I am introducing the Meat and Poultry Pathogen Reduction Act of 2003. This legislation, commonly known as Kevin's Law, is dedicated to the memory of 2-year-old Kevin Kowalcyk, who died in 2001 after eating a hamburger contaminated with E.coli H7:0157 bacteria. Passage of this bill is vital because on December 6, 2001, the 5th Circuit Court of Appeals upheld and expanded an earlier District Court decision that removes the U.S. Department of Agriculture's, USDA, authority to enforce its Pathogen Performance Standard for Salmonella. The 5th Circuit's decision in Supreme Beef v. USDA, Supreme, seriously undermines the sweeping food safety changes adopted by USDA in its 1996 Hazard Analysis Critical Control Point and Pathogen Reduction, HACCP, rule.

More recently, there was another court case that calls into question USDA's authority to enforce its microbiological performance standards. A company called Nebraska Beef sued USDA after the Department tried to shut down the plant for numerous alleged food safety violations. The judge in the case granted a temporary restraining order, preventing USDA to take enforcement action.

According the 5th Circuit's opinion in Supreme and the Nebraska Beef decision, today, there is nothing USDA could do to shut down a meat grinding plant that insists on using low-quality, potentially contaminated trimmings. These decisions seriously undermine the new meat and poultry inspection system.

The Pathogen Reduction Rule recognized that bacterial and viral pathogens were the foremost food safety threat in America, responsible for 5,000 deaths, 325,000 hospitalizations and 76 million illnesses each year. To address the threat of foodborne illness, USDA developed a modern inspection system based on two fundamental principles.

The first was that industry has the primary responsibility to determine how to produce the safest products possible. Industry had to examine their plants and determine how to control contamination at every step of the food production process, from the moment a product arrives at their door until the moment it leaves their plant.

The second, even more crucial principle was that plants nationwide must reduce levels of dangerous pathogens in meat and poultry products. To ensure the new inspection system accomplished this, USDA developed Pathogen Performance Standards. These standards provide targets for reducing pathogens and require all USDA-inspected facilities to meet them. Facilities failing to meet a standard are shut down until they create a corrective action plan to meet the standard.

So far, USDA has only issued one Pathogen Performance Standard, for Salmonella. The vast majority of plants in the U.S. have been able to meet the new standard, so it is clearly workable. In addition, USDA reports that Salmonella levels for meat and poultry products have fallen substantially. Therefore the Salmonella standard has been successful. The 5th Circuit Court's and the Nebraska Beef decisions threaten to destroy this success and set our food safety system back years.

The other major problem is we have an industry dead set on striking down USDA's authority to enforce meat and poultry pathogen standards. Ever since the original Supreme decision, I have spent untold hours trying to find a compromise that will allow us to ensure we have enforceable, science-based standards for pathogens in meat and poultry products. I have introduced bills to address this issue and I have even worked with industry leaders to reach a reasonable compromise.

However, despite repeated attempts to address industry concerns, industry has continually backtracked and moved the finish line. Many times, I have made changes in my legislation to address their ``pressing'' concern of the moment only to have them come back and say we hadn't gone far enough. We cannot let a few bullies in the meat and poultry industry place our children, our families at a increased risk of getting ill or dying, because some of the industry want to backtrack on food safety.

In addition, the recent announcement that a cow in Alberta, Canada tested positive for bovine spongiform encephalopathy, BSE, otherwise known as ``mad cow disease'', provoked the U.S. government to immediately close the U.S.-Canadian border for the trade at beer and beef products. I applaud the current Administration for taking this action to ensure the safety of our Nation's food supply until more information is made available about the true extent of the problem.

And without downplaying the seriousness of that horrible disease, I think its necessary to look at the impact of BSE in light of other food borne illnesses. Researchers believe that BSE is linked to variable Creutzfeldt-Jakob,

vCJD, disease. Since its onset in Britain in 1995, 129 people have died worldwide from vCJD. Foodborne pathogens, on the other hand, have cause 5000 deaths, 125,000 hospitalizations, and 76 million illnesses each year. The numbers speak for themselves.

The swift and comprehensive response provoked by a single diseased cow in a neighboring country stands in stark contrast to the way our government currently responds to outbreaks of foodbornes illness in our country today. USDA has the ability to shut down the trade from the biggest importer of beef into out country on suspicions of possible food safety problems, but cannot even temporarily shut down one plant that USDA knows has problems.

I plan to seek every opportunity to get this language enacted. I think it is essential, both to ensuring the modernization of our food safety system, and ensuring consumers that we are making progress in reducing dangerous pathogens.

I hope that both parties, and both houses of Congress will be able to act to pass this legislation without delay. The public's confidence in our meat and poultry inspection system is at stake.

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

If the Senator will yield, I have an amendment on which I will not take much time, if I could just have 15 minutes. I do not know if it will be accepted or not. I ask for 15 minutes.

Right now.

Yes. Around 1:30. Yes, I can do that.

I will make time to do it.

Madam President, I have an amendment I send to the desk and ask for its immediate consideration.

Madam President, I ask unanimous consent that the reading of the amendment be dispensed with.

Is the time 15 minutes equally divided?

Madam President, this amendment seeks to reduce the wasteful buildup of unneeded inventory at the Department of Defense. Based on the findings of the General Accounting Office, I believe this amendment would save at least $2 billion annually.

Last year, as a member of the Defense Appropriations Subcommittee, I requested that the GAO prepare a report on the inventory requirements of the Department of Defense. That report has just been printed and released dated May 2003. This is the newest in a series that I have had GAO undertake in recent years on related topics.

Pentagon waste is not a new issue, nor is the issue addressed by my amendment the only kind of waste that occurs within DOD. People have pointed out numerous examples of waste in DOD over the years, some quite spectacular.

Later in my statement I will talk about the other kinds of waste we uncovered by past GAO reports that I requested. Much has been done to reduce Pentagon waste, and I commend those efforts. The chairman and ranking member, both, and when they have been in reversed positions, have made a great effort in this regard. We have reduced Pentagon waste.

However, the Department of Defense remains the largest purchaser of goods in the Federal Government. The size of the bill continues to increase, and we have an authorization bill of $400 billion. That includes $75 billion for procurement. At those levels, we do need to be vigilant and we need to perform an ongoing watchdog role. That is what this amendment is aimed to ensure.

I am sorry to say, despite the long history of investigations and GAO reports, many of the problems still have not been solved. That is why I offer this amendment.

What the amendment addresses is, the Department of Defense routinely purchases and keeps on hand, for the purpose of meeting the Department's requirements, many items in a category it calls secondary inventory. Secondary inventory means spare and repair parts for weapons. It also includes clothing, medical, and many other items that are not weapon systems themselves. Obviously, there is a large amount of such supplies our military needs to keep on hand--over 2 million items.

According to the GAO, the Pentagon has approximately $70 billion worth of this secondary inventory. Unfortunately, out of the $70 billion worth of secondary inventory, there was about $38 billion in excess or unneeded inventory. So we have $70 billion in secondary inventory, much of which is needed; but GAO identified $38 billion in what they call excess inventory, inventory that the Pentagon says they do not even need. That is more than half of the secondary inventory classified as excess. This is totally unacceptable. It is unacceptable that DOD could find itself with more than half of its secondary inventory above their own requirements. I am sure there are valid explanations why some requirements are misjudged, but to end up with $38 billion worth of unneeded inventory out of a total of $70 billion of inventory seems to me to be a pretty good definition of waste.

It is worth pointing out that the Department of Defense generally concurred with this GAO report. The Department did not disagree with these findings.

But that is not all. Of the $38 billion in excess secondary inventory, according to the GAO, $1.6 billion was still on order. In other words, we are still paying contractors to make $1.6 billion worth of stuff the Pentagon itself has acknowledged it does not even need. So why weren't the orders canceled?

My amendment addresses this problem in two simple ways. First, it requires the Pentagon to cancel those orders for unneeded items where it makes sense; that is, unless the Secretary determines, one, that it will not save money; or, two, the Secretary determines that it will harm national security. Unless he finds either one of those, then the Department must cancel orders for items it does not think it needs.

Second, my amendment requires the Pentagon to reduce the excess inventory it already has on hand. Again, if the Secretary determines that, (a), it will not save money or, (b), it will harm national security, then the Department can keep right on storing these items. Otherwise, they have to sell the stuff so we do not pay to keep storing it. According to the GAO, that excess inventory on hand was worth about $36 billion.

I believe these two simple steps should save taxpayers at least $2 billion annually without imposing burdensome requirements on the Department of Defense and without compromising defense readiness.

I have requested GAO reports in the past, and many of those reports also found significant waste in the Department of Defense. Reports on inventory that the Army and the Navy ship from one location to another found that each service loses track of at least $1 billion worth of shipped items every year. Imagine that. They ship it, they do not know if they shipped it, and they do not know if anyone got it. They lose track of $1 billion a year in inventory.

Last July, another report revealed a complete breakdown in tracking and control of Air Force inventory shipped to contractors. The Air Force could not make sure that contractors had asked for items they needed, they could not make sure they had received what was sent, and they could not make sure they used what they got on Government contracts, and they did not follow up on known problems. This was just a report from last summer.

Other reports have found that the Pentagon pays too much for common items and buys things we do not need, and on and on.

I believe we do have a serious problem in inventory control with the Department of Defense. I half facetiously, a year or two ago when I offered a similar amendment, said that the Government is now contracting out a lot of functions, and the Bush administration seems to be intent on contracting out, that maybe what we really ought to do is contract out inventory control for the Department of Defense to Wal- mart. I can guarantee that Wal-Mart does not lose $1 billion a year in inventory. I guarantee when Wal-Mart orders items, they know if they have been shipped and they know who gets it. I picked on Wal-Mart, but I could name another company. But my point is made.

We have a huge bureaucracy, the Department of Defense. They are buying billions of dollars' worth of items with taxpayers' money, and in many cases they cannot account for it. We have the stockpiling of excess items, and they keep right on buying items that they say they do not even need.

Would someone please make sense of this to this Senator? Why is the Department of Defense ordering items that it has already said it does not need, yet keeps the orders going? That is what my amendment is attempting to do.

Some of the past GAO reports have resulted in improvements. The Navy, for example, claims to have accounted for $2.5 billion of inventory discrepancies. But I am sorry to say the recommendations are frequently not followed. Just on inventory issues, the GAO has more than 30 open recommendations on using accurate data, setting consistent procedures and following them, adopting commercial best

practices and modern inventory systems, taking timely actions, and many more--30 open items the GAO has identified to which the Department of Defense simply is not paying attention.

My amendment also requires that the Department of Defense report to Congress on what the Department is doing to implement these open GAO recommendations on defense inventory issues.

Again, this amendment is a modest step forward. It is needed because the Department has either not been willing or not been able adequately to address, by itself, past findings by the GAO of serious waste. I have chosen to address the single, narrow area of secondary inventory because that is the area where we have fresh information from the GAO, information with which DOD generally concurs.

Now, while $2 billion may not be a large amount compared to the $400 billion authorized in this bill, it is still a lot of taxpayer money, and it is being wasted. We ought to stop it. That is what my amendment seeks to do.

I yield the floor.

Madam President, I thank both the chairman and the ranking member for their attention, and their responses. I know the Senators and their staffs, on both sides, have worked on this matter going back some years. I appreciate that.

This seems like that whack-a-mole type thing; you keep hitting it and something else pops up. From our side, the Defense Appropriations Subcommittee side, I have been addressing this since 1995. GAO even said here:

Since 1995, we have reported on imbalances in DOD's

inventory, and our current work shows that these imbalances

continue to exist.

I know the chairman and ranking member have a lot on their plate. This is a big bill. There is a lot you have to pay attention to. But somehow we just have to get our hands on this.

In response to what Senator Levin had said, we found in one of our reports--I am sure the chairman is very familiar with it--where we had at one point 100 years or more of inventory of some items. Of course they are going to be long obsolete before that hundred years is out.

Some of that has been taken care of. I compliment the chairman and ranking member, now and in the past, for attending to that, because a lot of that has been reduced. I compliment you for that.

But we still have one problem here--well, one among others--of the secondary inventory and the fact they keep buying, even though they themselves say they do not need it.

So I appreciate what you said. I know you have not had a chance to take a look at it. I look forward to my staff and your staff working together and maybe coming up with some things so we can get them moving in the right direction.

I appreciate my friend from Virginia mentioning that. That is true. That is why I understand we have to have some of this inventory. You are right, we should err on the side of caution in this area. But with the tremendous buildup we have and the amount

of money we are talking about here, let's face it, big mistakes can be made and things can happen.

I went back one time and I read a lot about the old Truman Commission in World War II that was set up. Here we were, World War II, and we had to respond, as the Senator knows, rapidly at that time. We had to go almost from nothing to build up an Air Force and a Navy and an Army. The enemy was at our gates. But at the same time, the Senate set up a special Committee then under Senator Harry Truman of Missouri. That commission did a number of things. Some people went to jail. Some people paid fines. They saved the taxpayers literally--I don't know if it was billions, at least hundreds of millions of dollars at that time, which would translate into billions at today's inflated levels. They did that in the midst of the Second World War.

I am just saying we need some more oversight, and we need some better accounting practices and inventory control systems.

Maybe the chairman did not hear me when I said earlier, half facetiously, a couple years ago maybe that when we are contracting out we ought to contract out inventory control to Wal-Mart. They don't lose much. They keep track of everything. As the chairman knows, there are some new technologies out there that are coming on line that will allow us to track----

I ask unanimous consent for a couple more minutes.

Maybe some of this new technology would be what would help us get more control.

I thank the chairman.

Amendment No. 774 Withdrawn

Madam President, I ask unanimous consent to withdraw my amendment. I look forward to working with the chairman and ranking member to try to get a better handle on this.

Mr. President, I am pleased to join the Senator from Iowa, Mr. Grassley, as a cosponsor of his amendment.

As we all know, the reason this is so critical is that the health care system in rural America is collapsing. For too long the Medicare reimbursements to urban centers have eclipsed those to rural communities at such a rate that cities, towns, and villages throughout rural America are in a real health care crisis.

In our State of Iowa, low reimbursement rates mean we can't recruit and retain health care professionals. Every time a hospital in Iowa treats a Medicare patient, it loses money. That cost is shifted to small businesses, private insurance companies, private payers--in other words, Main Street, Iowa.

This amendment takes a giant step forward in fixing this problem and getting us on the path to making sure we in rural States have the same kind of reimbursements that people do in more urban areas. It would give rural providers and hospitals, and the communities they serve, the support they need and deserve.

I urge my colleagues to support its adoption.

Mr. President, I ask if the Senator can yield me 15 minutes.

I appreciate that. I will not take an hour.

Parliamentary inquiry: The Senator asked that the amendments be set aside; right?

Mr. President, I send an amendment to the desk.

Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. President, I will speak to my amendment in a moment. Before I do, I wish to make preliminary comments about the tax bill before us which the President and the Republicans have called a jobs and growth package and they say it is to grow the economy. I certainly agree that the economy is in dire straits and we are in desperate need of taking action. That is true.

Since President Bush took office, the United States has lost 2.6 million jobs, more than 36,000 of those in my State of Iowa. Unemployment rates, including long-term unemployment rates, continue to rise. That is a fact. The economy is in a shambles. Unemployment continues to go up. This is not just some academic process. It is causing real hardship for millions of Americans and families who are without a job and without health care coverage.

Senator Specter and I had a hearing in our appropriations subcommittee talking about the lack of access and affordability of health care. You can read the story of the man who testified, Mr. Kurilko. He was referred to in the Wall Street Journal. He is 57 years old, worked 37 years on a job. He now has a heart problem, diabetes. He is out of a job. He and his wife now face the prospect of losing their life savings because his health care costs, just for insurance, are over $2,000 a month. This is a man who worked in a blue-collar job, a steel mill, all of his life.

That is what is happening in America today. Families without work, and the high cost of health care, go without coverage, and they see their life savings vanishing before their eyes.

We see it affecting other areas of our economy, our families, and our States. The tuition fees in Iowa have increased sharply at our public universities. However, the tuition does not make up for the shortfall in the loss of State funding. We are seeing cuts to critical public health initiatives, including those that help indigent dialysis patients, and a program that helps immunize low-income kids.

Public schools in Iowa have cut 350 teachers statewide. Schools are forced to share nurses and counselors and eliminate programs such as music and art and enrichment classes entirely from their schools.

In our hearing this morning, we had a teacher from a small school in Iowa testify. The cost just in her school district for health care coverage went up 61.5 percent over the last year.

As he said, they are now approaching the point where their health care costs are going to equal the salary of a first-year teacher. So this is the real America that is happening in my State, in every State, to people who have worked all their lives and now do not have any health care coverage. Our schools are being cut. Our infrastructure is deteriorating in this country, as well as our bridges, roads, sewer, and water systems.

What is the answer before us for growth and jobs in our economy? An enormous tax cut, in large part for the wealthy in our country. That is the answer. If I believed this tax bill before us would help the economy, create the jobs we need, and help provide health care coverage, I would be all for it. But the fact is, we have tried this before.

In 1981, under President Reagan, we had a supposedly big supply side cut in taxes. We lost 1.3 million jobs in the two years after the passage of that bill. Then OMB Director David Stockman called it a riverboat gamble. Guess what. Working Americans all over this country lost that gamble. In 1982, part of that measure was reversed and the Federal Reserve sharply dropped interest rates allowing for things to start to get better.

After much hard work in the 1990s, we passed a bill in 1993 that put us on the path towards a balanced budget, restored confidence and creating 22 million jobs. Productivity went up. It was a bill with a policy totally out of line with the supply side philosophy of the 1981 bill. Almost every Republican senator predicted that the economy would be severely hurt. The economy grew, and 6.5 million jobs were created in just the first two years after that bill passed. The United States enjoyed 40 consecutive months of unemployment below 5 percent.

Twenty years after 1981, we had another supply side riverboat gamble in front of us. President Bush assured the country in 2001 that

We can proceed with tax relief without fear of budget

deficits, even if the economy softens.

And on another occasion, he said

A tax cut now will stimulate the economy and create jobs.

Yet what we are now facing, almost two years after the passage of that measure is a loss of another 1.8 million jobs to our economy.

The President, and the Republicans, passed a $1.3 billion tax cut like the one we are considering today. It was targeted to the wealthiest. Unfortunately, the President's predictions were dead wrong. I want to get this chart back up. Two years after the 1981 bill, we lost 1.3 million jobs. Since the 2001 tax bill was passed 20 years later, we have lost 1.8 million jobs in almost 2 years.

Now, 22 years after the first try, we are going to try it again. It is not enough that the riverboat gamble failed in 1981. It is not enough that it failed in 2001. By gosh, we are going to try it again, folks--another riverboat gamble. One would think history would teach us something.

If history does not, then how about some of the economists and what they are saying. Federal Reserve Chairman Alan Greenspan said:

There is no question that as deficits go up, contrary to

what some have said, it does affect long-term interest rates.

It does have a negative impact on the economy . . .

He twice testified before Congress in opposition to the tax cut plan, warning that these deficits would stunt long-term growth. Ten Nobel laureates and 400 other economists disagree with the President's approach. In a statement made February 10 of this year, they wrote:

Regardless of how one views the specifics of the Bush plan,

there is wide agreement that its purpose is a permanent

change in the tax structure and not the creation of jobs and

growth in the near term.

The economists also said that:

Passing these tax cuts will worsen the long-term budget

outlook, adding to the nation's projected chronic deficits.

This fiscal deterioration will reduce the capacity of the

government to finance Social Security and Medicare benefits,

as well as investments in schools, health, infrastructure,

and basic research. Moreover, the proposed tax cuts will

generate further inequities in after-tax income.

That is what these 400 economists said.

What we are talking about is fairness. We want fairness in the Tax Code. We want fairness to the working families of America in how they are taxed and who pays the burden in this country.

Every time we talk about fairness, President Bush says, class warfare. Why is fairness class warfare? Why is it in President Bush's head that if we try to have fairness in the Tax Code, he thinks it is class warfare?

That is what this is about. It is about basic fairness. We have tried it before. It failed horribly, and yet I guess we are going to do it again.

Why should we do this? Why should we go against the advice of some of the most renowned economists and why should we go against what we know from history? Why take a risky gamble when people's lives are at stake? Why take a risky gamble when 9 million Americans cannot find jobs?

If I were out of work, I would want my representatives in Washington to do what has been proven to grow the economy, proven to create jobs, not what has twice proven to fail.

In fact, the more I think about this tax bill before us, I think of Bill Bennett. It is like a gambling addiction, putting $500 in the slot machine and

pulling the handle. That is what this tax bill is like. It is like putting $500 in and pulling the handle and hoping he hits it. Now we know that Mr. Bennett did not hit it. He lost millions of dollars over several years of gambling.

That is what this bill is like. It is a riverboat gamble, like David Stockman called it in the 1980s.

I am getting to my amendment now, and there is an interesting comparison I wanted to make on Medicare. How much does the plan before us cost? Well, when we throw out figures of billions of dollars, eyes sort of glaze over. No one can understand exactly how much money that is. So I thought I might compare it.

The President's plan if made permanent costs more than the entire 75- year shortfall in both Social Security and Medicare, about 1.8 percent of GDP. The Bush tax cuts made permanent over a 75-year period will amount to 2.3 percent to 2.7 percent of GDP.

We hear all the talk about the shortfall we are going to have in Social Security and Medicare when the baby-boomers retire, and that we have to do something about it. Here is your answer: The Bush plan will cost more than the shortfall in Social Security and Medicare. Think about it. Are we going to have this riverboat gamble, a tax cut that basically benefits the wealthiest in our society, when we could be using this to secure Social Security and Medicare for 75 years? But maybe that is what this is all about.

It was Newt Gingrich, after all, who said that they--the Republicans--wanted to have Medicare ``wither on the vine.'' Maybe that is what this is all about. Pass this tax cut, reward the wealthiest in our society, and when it comes time to do something about Social Security and Medicare, we will not have enough money. Maybe that is what it is all about.

That is not what we should be about. We should be about a jobs and growth bill that helps the working families of America. We ought to be about a bill to help secure Medicare and Social Security for the baby boomers. One of the ways we can do this is by making sure we have equity in the Medicare system. The amendment I sent to the desk will help do that by making sure we have better equity in the Social Security system and Medicare system.

I tried to listen as my colleague from Iowa offered his amendment. I did not receive a copy of it earlier, so I did not have a chance to look at it. I heard some of the things that my colleague from Iowa was talking about in terms of helping right some of the wrongs in Medicare to provide for less disparity under Medicare.

Most of what I heard I agree with. I think a number of the provisions in Senator Grassley's Medicare amendment are similar to provisions in my amendment. I commend him for that.

However, his amendment uses a different offset. I don't know exactly what that is. I plan to analyze it overnight. It may have some merit, I don't know. Both are trying to help rural hospitals and providers. I hope we can work together to get that done sometime this year.

Basically, what my amendment would do is, say, if the Congress does not pass legislation by December 31, 2003 then the Secretary of Health and Human Services would promulgate regulations by December 31, 2004. We would have to enact additional legislation. If none passed, the Secretary would have to act by the end of 2004. Those regulation changes would have to have the following parts:

One, to equalize urban and rural base payment rate. This increases the rate for all hospitals in cities below one million people.

Two, improve the Medicare incentive payment program to ensure that bonus payments are made on behalf of all eligible physicians; three, my amendment would eliminate the Medicare DSH cap. The current cap disproportionately hurts rural states; four, it would establish a Medicare inpatient hospital bonus payment for hospitals with low Medicare patient volumes; five, it would adjust the Medicare inpatient hospital prospective wage index to revise the labor-related share of such index to account for 62 percent of such index. Currently, payments are 71 percent based on labor costs. I heard Senator Grassley's amendment did the same thing; next, reinstate a bonus payment to home health care providers in rural areas. A 10 percent bonus has expired and this would reinstate it. Next adjust the work GPCI to no less than 1 for physicians; lastly, this amendment I am offering would say we would have a hold harmless clause that whatever we do could not result in the lower level of reimbursement for a health care provider under title XVIII, that such provider would have received but for the enactment or these of this amendment or these regulations.

The offset I used would be to limit, to put a cap on any tax deductions for dividend income not to exceed $500. In other words, you could get an exclusion of up to $500 on dividends in terms of a tax benefit, but no more than that. That offset would fully pay to make sure our hospitals in Iowa or Washington State--I know Washington is very low on the payment schedule--Montana, other States, make sure that we have an equalization so the Medicare payments in those States are not so skewed as they are right now.

We can get this done simply by capping at $500 the tax benefits under the present bill before the Senate on dividends. It seems to me that would be a small price for the wealthiest in our country to pay to make sure we had a working Medicare system that was fair to all.

In closing, regarding the tax bill, do we take a risky gamble as we have before, sort of a Bill Bennett gamble, as I have said, pull the handle on the slot machine and hope something comes up? Or do we go with proven methods to grow the economy and create jobs? Do we break the bank on tax cuts for the wealthy or do we invest in education? Do we break the bank on dividend tax breaks or do we cap them and use that offset as a way of helping equalize Medicare payments in our States? Do we break the bank on tax cuts for the rich or help families afford college tuition? Do we break the bank on tax cuts for the rich or do we help families afford health care coverage? Do we break the bank on tax cuts for the rich or do we keep Social Security secure? Do we break the bank on tax cuts for the rich or do we keep Medicare benefits intact? Do we break the bank on tax cuts for the rich or do we start to work on having smaller deficits?

These are our choices. The choice is clear. This bill needs some serious amendments. There will be a number of amendments offered and, quite frankly, if some of the amendments are accepted, maybe the bill would be worthy of support. As the bill sits right now, the bill must be opposed, unless we can adopt some of these amendments that I think would make it, A, more fair and equitable, and B, to make sure we invest in the long-term security of Social Security and Medicare.

How much time do I have remaining?

Parliamentary inquiry, Madam President: In terms of the time, can this time be reserved?

I reserve the remainder of my time.

I yield the floor.

Mr. President, I rise today to congratulate the people of Grundy Center, Iowa for their hard work and success in developing one of the Nation's best-all around physical education programs, in their schools and in the entire community. As a result of their leadership and dedication to physical fitness, Grundy Center has been selected to receive the PE4LIFE Community Achievement Award. In addition, the community will now serve other Iowans and the rest of the Nation as the second PE4LIFE Institute.

This is a great achievement, thanks in large part to Beth Kirkpatrick and Rick Schupbach, who for 15 years have served this community and dedicated themselves to building an innovative physical education program. The PE4LIFE program effectively reaches and inspires every student, regardless of athletic ability or experience, to become physically active for a lifetime. It is the kind of inclusive approach that will make a difference in Iowa and throughout the country. The need for what Rick and Beth will do as codirectors of the new PE4LIFE Institute has never been greater.

Obesity has become our Nation's fastest rising public health threat. The number of overweight and obese Americans has more than doubled in the last 30 years. The problem is especially serious for children; the number of overweight children is growing at a rate faster than the number of adults. If we don't do something to halt and reverse the trend, we will face a significant health care crisis. If we don't do something, our children, as they grow into adults, will face greater threats from diabetes, heart disease and other serious maladies related to being out of shape and overweight. It is now estimated that the annual cost of treating obesity related diseases is over $100 billion per year.

Unfortunately, the solution is getting away from us. Physical education in our Nation's schools has declined. In 1991, only 42 percent of our Nation's students had daily physical education. Today that number is around 29 percent.

Physical education and daily physical activity go a long way to improving the overall health of our children. We need to improve on cardiovascular endurance, muscle strength, flexibility, help with weight regulation, bone development and posture. Teaching active lifestyle habits to children will go a long way to helping our children grow up to be active and healthy adults. An active lifestyle also promotes the constructive use of leisure time. Improving physical education in our schools is a sure way to influence these behavior patterns in our children.

Our kids are not in shape. They spend too much time in front of the TV, playing video games or working on their computers. The best way to get them back on their feet is to improve the physical education they receive while they are in school. Programs like the new PE4LIFE Institute in Grundy Center are critically important to tackling this problem.

Before he was inaugurated, President-elect John F. Kennedy wrote an article for Sports Illustrated entitled, ``The Soft American.'' He wrote:

For physical fitness is not only one of the most important

keys to a healthy body: it is the basis of dynamic and

creative intellectual activity. The relationship between the

soundness of the body and the activities of the mind is

subtle and complex. Much is not yet understood. But we do

know what the Greeks know: that intelligence and skill can

only function at the peak of their capacity when the body is

healthy and strong: that hardy spirits and tough minds

usually inhabit sound bodies.

President Kennedy would have been impressed by the people of Grundy Center. We are proud of their accomplishments, and we look forward to working with them in the future as they help Iowa and the rest of the Nation become more physically fit.

Mr. President, today I come to the floor to pay tribute to a great person, a long-time friend and a true pioneer, Dr. Robert C. Atkins. Dr. Atkins, cardiologist, physician, and author, among many other endeavors, passed away tragically on April 17 from injuries suffered in a fall in New York City.

A leader in both natural medicine and nutritional pharmacology, Dr. Atkins majored in pre-med at the University of Michigan and then went on to receive his medical degree from the Cornell University Medical School in 1955. He was the founder of The Atkins Center for Complementary Medicine, Atkins Nutritionals, Inc, and cofounder and past president of the Foundation for the Advancement of Innovative Medicine. But as accomplished as he was a physician and researcher, Dr. Atkins was best known for his controlled carbohydrate approach to weight management known as the ``Atkins Diet.''

In addition to researching and developing what has become one of the leading weight control methods, Dr. Atkins also wrote 13 books, including ``Dr. Atkins' New Diet Revolution'' and ``Atkins for Life,'' both of which have been and remain on The New York Times bestseller list. His commitment to revolutionizing medicine and nutrition and determination to stand by his research led People magazine to name him one of the ``25 Most Intriguing People,'' and Time magazine to add him to their list of ``People Who Matter''.

Dr. Atkins invested millions of his own money in the Dr. Robert C. Atkins Foundation, endowing institutions with the necessary funding for research and education.

I knew Bob Atkins for many years. He was a good friend and we saw eye to eye on many important issues including dietary supplements, alternative medicine, and medical research. As the lead proponent in the formation the National Center for Complementary and Alternative Medicine, I was always grateful with Dr. Atkins tireless effort to educate law and policymakers. Dr. Atkins helped to bring national attention and credibility to complementary medicine as a serious and effective medical approach.

Dr. Atkins will always be remembered for having the courage and foresight to challenge conventional wisdom on nutrition. His tireless efforts to point out ways to lose weight and prevent and manage diabetes and heart disease in ways conventional medicine had ignored or were unaware are irreplaceable and have forever changed how Americans, and the world, view nutrition, weight loss and diet. During his life he treated thousands of patients, including Members of Congress and their families.

My condolences go out to his wife Veronica and mother Norma, and all the people who had the pleasure to work for and with him. His legacy and lifetime achievements will continue to guide policy makers and doctors around the world. Bob Atkins not only left a legacy of nutrition and health, but set an example for everyone to believe in themselves and to question establishment policies.

Bob, we thank you and we miss you.

Mr. President, I am pleased to be joined by Senators Specter and Kennedy today in re-introducing legislation that will give new hope to Americans with paralysis.

Recent news reports about the medical miracle Christopher Reeve has experienced over the two past years is an inspiration for every American living with paralysis as a result of a spinal cord injury. When it was announced that, for the first time since his accident in 1995, Chris regained sensation and movement in parts of his body, providing inspiration for some of the two million Americans with paralysis. Most recently, Chris has started weaning himself from a ventilator, breathing on his own for the first time since his accident.

Today, through the Christopher Reeve Paralysis Act of 2003, we seek to achieve two primary goals. First, to further advance the science needed to promote spinal regeneration. And second, to build quality of life programs throughout the country that will further advance full participation, independent living, self-sufficiency and equality of opportunity for individuals with paralysis and other physical disabilities.

Chris' recovery and recent scientific evidence show that progress is possible. At research centers in the United States, Europe and Japan, techniques of rigorous exercise have helped numerous persons with paraplegia with limited sensations in their lower bodies walk for short distances, unassisted or using walkers.

While the results of these new methods are quite promising, the limits of what physical exercise can do for patients remains grossly understudied. While each person and each injury is unique, and some people recover spontaneously, an estimated 250,000 Americans are living with spinal cord injuries that have not improved. Which therapy or combination of therapies will work for each person is unknown. Today two million Americans are living with paralysis, including spinal cord injury, stroke, cerebral palsy, multiple sclerosis, ALS and spina bifida. We need research to see how these new interventions work on the entire population of individuals with paralysis.

What we do know is the ordinary repetitive motions used in most rehabilitation centers, like squeezing a ball, are almost certainly not enough to appropriately address neurological injuries.

Patients are usually told that after one year, two at the most, they will never make further progress in their abilities to move or feel sensation. Yet eight years after his accident, through a rigorous exercise plan, Chris is finally seeing results.

Due to efforts led by the National Institutes of Health and the Christopher Reeve Paralysis Foundation, our Nation stands on the brink of amazing

breakthroughs in science for those with paralysis. However, the biotech and pharmaceutical industries have not invested in paralysis research because they believe the market does not support the private investment. There is an urgent need for the Federal Government to further step up its commitment in this area. The Christopher Reeve Paralysis Act would do just that.

By establishing Paralysis Research Consortia at the National Institute of Neurological Disorders and Stroke, we can substantially increase our ability to capitalize on research advances in paralysis. These consortia would be formed to explore unique scientific expertise and focus across the existing research centers at NINDS in an effort to further advance treatments, therapies and developments on one or more forms of paralysis that result from central nervous system trauma and stroke.

Additional breakthroughs are underway in rehabilitation research on paralysis. Federal funding for rehabilitation research at the National Center for Medical Rehabilitation Research at NIH is showing real potential to improve functional mobility; prevent secondary complications like bladder and urinary tract infections and ulcers; and to develop improved assistive technology. These rehabilitation interventions have the potential to greatly reduce pain and other complications for people with neurological disorders and stroke and, at the same time, save millions in health care costs.

Over the past 20 years, overall days in the hospital and rehabilitation center for those with paralysis have been cut in half. Those with paralysis face astronomical medical costs, and our best estimates tell us that only one-third of those individuals remain employed after paralysis. At least one-third of those with paralysis have incomes of $15,000 or less.

To date, there are no State-based programs at CDC that address paralysis and other physical disability with the goal of improving health outcomes and prevent secondary complications. This bill will, for the first time, ensure that individuals with paralysis get the information they need; have access to public health programs; and support in their communities to navigate services. Ultimately these programs will help remove the barriers to community participation and help improve quality of life. The bill also establishes hospital-based registries on paralysis to collect needed data on the true numbers of individuals with these conditions, and it invests in population-based research to see how various therapies impact different people.

We are on the brink of major breakthroughs for individuals with neurological disorders and stroke that result in paralysis. This bill will ensure that the federal government does its part to help more than 2 million Americans.

When Christopher Reeve was injured, he put a face on an issue that has been neglected for too long. Since then, his tireless efforts to walk again, coupled with his passion and commitment to improve quality of life for others with paralysis, make him an inspiration to all Americans.

It is a pleasure and an honor to lead a bipartisan group of Senators, along with the support of a number of disability groups, including the American Stroke Association, the American Heart Association, the Christopher Reeve Paralysis Foundation, the National Family Caregivers Association, the National Spinal Cord Injury Association, Paralyzed Veterans of America and Easter Paralyzed Veterans, in introducing this bill.

Mr. President, I am pleased to be joined by Senators Specter and Kennedy today in re-introducing legislation that will give new hope to Americans with paralysis.

Recent news reports about the medical miracle Christopher Reeve has experienced over the two past years is an inspiration for every American living with paralysis as a result of a spinal cord injury. When it was announced that, for the first time since his accident in 1995, Chris regained sensation and movement in parts of his body, providing inspiration for some of the two million Americans with paralysis. Most recently, Chris has started weaning himself from a ventilator, breathing on his own for the first time since his accident.

Today, through the Christopher Reeve Paralysis Act of 2003, we seek to achieve two primary goals. First, to further advance the science needed to promote spinal regeneration. And second, to build quality of life programs throughout the country that will further advance full participation, independent living, self-sufficiency and equality of opportunity for individuals with paralysis and other physical disabilities.

Chris' recovery and recent scientific evidence show that progress is possible. At research centers in the United States, Europe and Japan, techniques of rigorous exercise have helped numerous persons with paraplegia with limited sensations in their lower bodies walk for short distances, unassisted or using walkers.

While the results of these new methods are quite promising, the limits of what physical exercise can do for patients remains grossly understudied. While each person and each injury is unique, and some people recover spontaneously, an estimated 250,000 Americans are living with spinal cord injuries that have not improved. Which therapy or combination of therapies will work for each person is unknown. Today two million Americans are living with paralysis, including spinal cord injury, stroke, cerebral palsy, multiple sclerosis, ALS and spina bifida. We need research to see how these new interventions work on the entire population of individuals with paralysis.

What we do know is the ordinary repetitive motions used in most rehabilitation centers, like squeezing a ball, are almost certainly not enough to appropriately address neurological injuries.

Patients are usually told that after one year, two at the most, they will never make further progress in their abilities to move or feel sensation. Yet eight years after his accident, through a rigorous exercise plan, Chris is finally seeing results.

Due to efforts led by the National Institutes of Health and the Christopher Reeve Paralysis Foundation, our Nation stands on the brink of amazing

breakthroughs in science for those with paralysis. However, the biotech and pharmaceutical industries have not invested in paralysis research because they believe the market does not support the private investment. There is an urgent need for the Federal Government to further step up its commitment in this area. The Christopher Reeve Paralysis Act would do just that.

By establishing Paralysis Research Consortia at the National Institute of Neurological Disorders and Stroke, we can substantially increase our ability to capitalize on research advances in paralysis. These consortia would be formed to explore unique scientific expertise and focus across the existing research centers at NINDS in an effort to further advance treatments, therapies and developments on one or more forms of paralysis that result from central nervous system trauma and stroke.

Additional breakthroughs are underway in rehabilitation research on paralysis. Federal funding for rehabilitation research at the National Center for Medical Rehabilitation Research at NIH is showing real potential to improve functional mobility; prevent secondary complications like bladder and urinary tract infections and ulcers; and to develop improved assistive technology. These rehabilitation interventions have the potential to greatly reduce pain and other complications for people with neurological disorders and stroke and, at the same time, save millions in health care costs.

Over the past 20 years, overall days in the hospital and rehabilitation center for those with paralysis have been cut in half. Those with paralysis face astronomical medical costs, and our best estimates tell us that only one-third of those individuals remain employed after paralysis. At least one-third of those with paralysis have incomes of $15,000 or less.

To date, there are no State-based programs at CDC that address paralysis and other physical disability with the goal of improving health outcomes and prevent secondary complications. This bill will, for the first time, ensure that individuals with paralysis get the information they need; have access to public health programs; and support in their communities to navigate services. Ultimately these programs will help remove the barriers to community participation and help improve quality of life. The bill also establishes hospital-based registries on paralysis to collect needed data on the true numbers of individuals with these conditions, and it invests in population-based research to see how various therapies impact different people.

We are on the brink of major breakthroughs for individuals with neurological disorders and stroke that result in paralysis. This bill will ensure that the federal government does its part to help more than 2 million Americans.

When Christopher Reeve was injured, he put a face on an issue that has been neglected for too long. Since then, his tireless efforts to walk again, coupled with his passion and commitment to improve quality of life for others with paralysis, make him an inspiration to all Americans.

It is a pleasure and an honor to lead a bipartisan group of Senators, along with the support of a number of disability groups, including the American Stroke Association, the American Heart Association, the Christopher Reeve Paralysis Foundation, the National Family Caregivers Association, the National Spinal Cord Injury Association, Paralyzed Veterans of America and Easter Paralyzed Veterans, in introducing this bill.

Mr. President, today Senator Specter and I and others introduce the Medicaid Community-Based Attendant Services and Supports Act of 2003, MICASSA. This legislation is needed to truly bring people with disabilities into the mainstream of society and provide equal opportunity for employment and community activities.

In order to work or live in their own homes, Americans with disabilities and older Americans need access to community-based services and supports. Unfortunately, under current Federal Medicaid policy, the deck is stacked in favor of living in an institution. The purpose of our bill is to level the playing field and give eligible individuals equal access to community-based services and supports.

The Medicaid Community Attendant Services and Supports Act accomplishes four goals.

First, the bill amends Title XIX of the Social Security Act to provide a new Medicaid plan benefit that would give individuals who are currently eligible for nursing home services or an intermediate care facility for the mentally retarded equal access to community-based attendant services and supports.

Second, for a limited time, States would have the opportunity to receive additional funds to support community attendant services and supports and for certain administrative activities. Each State currently gets Federal money for their Medicaid program based on a set percentage. This percentage is the Medicaid match rate. This bill would increase that percentage to provide some additional funding to States to help them reform their long term care systems.

Third, the bill provides States with financial assistance to support ``real choice systems change initiatives'' that include specific action steps to increase the provision of home and community based services.

Finally, the bill establishes a demonstration project to evaluate service coordination and cost sharing approaches with respect to the provision of services and supports for individuals with disabilities under the age of 65 who are dually eligible for Medicaid and Medicare.

Some States have already recognized the benefits of home and community based services. Every State offers certain services under home and community based waiver programs, which serve a capped number of individuals with an array of home and community based services to meet their needs and avoid institutionalization. Some States also are now providing the personal care optional benefit through their Medicaid program.

However, despite this market progress, home and community based services are unevenly distributed within and across states and only reach a small percentage of eligible individuals.

Those left behind are often needlessly institutionalize because they cannot access community alternatives. A person with a disability's civil right to be integrated into his or her community should not depend on his or her address. In Olmstead v. LC, the Supreme Court recognized that needless institutionalization is a form of discrimination under the Americans With Disabilities Act. We in Congress have a responsibility to help States meet their obligations under Olmstead.

This MICASSA legislation is designed to do just that and make the promise of the ADA a reality. It will help rebalance the current Medicaid long term care system, which spends a disproportionate amount on institutional services. For example, in 2000, 49.5 billion dollars were spent on institutional care, compared to 18.2 billion on community based care. In the same year, only 3 States spent 50 percent or more of their long term care funds under the Medicaid program on home and community based care.

And that means that individuals do not have equal access to community based care throughout this country. An individual should not be asked to move to another state in order to avoid needless segregation. They also should not be moved away from family and friends because their only choice is an institution.

For example, I know a young man in Iowa, Ken Kendall, who is currently living in a nursing home because he cannot access home and community based care. Ken was injured in a serious accident at the age of 17 and sustained a spinal chord injury. With the help of community based services covered by his insurance company, Ken could live in his home in Iowa City. Remaining independent made a tremendous difference in his life.

However, several years ago, Ken lost his health insurance and after a time, he went onto Medicaid. As a Medicaid recipient, Ken was only given the option to live in a nursing home in Waterloo, almost two hours from his friends and family in Iowa City. In the nursing home, Ken has become isolated. He is very far from his family and friends and does not have access to transportation. He has not been to a restaurant or a movie since he moved to the nursing home over two years ago. His life has dramatically changed from when he lived in his own apartment and hired his own attendants to care for him. MICASSA would give him that choice again--the choice to control his own life and live a full and meaningful life in his home community surrounded by his friends and family.

Federal Medicaid policy should reflect the consensus reached in the ADA that Americans with Disabilities should have equal opportunity to contribute to our communities and participate in our society as full citizens. That means no one has to sacrifice their full participation in society because they need help getting out of the house in the morning or assistance with personal care or some other basic service.

I am very pleased that the administration has included the Real Choice Systems Change grants in its budget this year at $40 million dollars. Senator Specter and I have supported these grants for several years now. I also applaud the administration's commitment to The President's New Freedom Initiative for People with Disabilities and believe that this legislation helps promote the goals of that initiative.

Community based attendant services and supports allow people with disabilities to lead independent lives, have jobs, and participate in the community. Some will become taxpayers, some will get an education, and some will participate in recreational and civic activities. But all will experience a chance to make their own choices and govern their own lives.

This bill will open the door to full participation by people with disabilities in our workplaces, our economy, and our American Dream, and I urge all my colleagues to support us on this issue. I want to thank Senator Specter for his leadership on this issue and his commitment to improving access to home and community based services for people with disabilities. I would also like to thank Senators Kennedy, Cochran, Biden, Landrieu, Kerry, Corzine, Schumer, and Clinton for joining me in this important initiative.

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

Mr. President, today Senator Specter and I and others introduce the Medicaid Community-Based Attendant Services and Supports Act of 2003, MICASSA. This legislation is needed to truly bring people with disabilities into the mainstream of society and provide equal opportunity for employment and community activities.

In order to work or live in their own homes, Americans with disabilities and older Americans need access to community-based services and supports. Unfortunately, under current Federal Medicaid policy, the deck is stacked in favor of living in an institution. The purpose of our bill is to level the playing field and give eligible individuals equal access to community-based services and supports.

The Medicaid Community Attendant Services and Supports Act accomplishes four goals.

First, the bill amends Title XIX of the Social Security Act to provide a new Medicaid plan benefit that would give individuals who are currently eligible for nursing home services or an intermediate care facility for the mentally retarded equal access to community-based attendant services and supports.

Second, for a limited time, States would have the opportunity to receive additional funds to support community attendant services and supports and for certain administrative activities. Each State currently gets Federal money for their Medicaid program based on a set percentage. This percentage is the Medicaid match rate. This bill would increase that percentage to provide some additional funding to States to help them reform their long term care systems.

Third, the bill provides States with financial assistance to support ``real choice systems change initiatives'' that include specific action steps to increase the provision of home and community based services.

Finally, the bill establishes a demonstration project to evaluate service coordination and cost sharing approaches with respect to the provision of services and supports for individuals with disabilities under the age of 65 who are dually eligible for Medicaid and Medicare.

Some States have already recognized the benefits of home and community based services. Every State offers certain services under home and community based waiver programs, which serve a capped number of individuals with an array of home and community based services to meet their needs and avoid institutionalization. Some States also are now providing the personal care optional benefit through their Medicaid program.

However, despite this market progress, home and community based services are unevenly distributed within and across states and only reach a small percentage of eligible individuals.

Those left behind are often needlessly institutionalize because they cannot access community alternatives. A person with a disability's civil right to be integrated into his or her community should not depend on his or her address. In Olmstead v. LC, the Supreme Court recognized that needless institutionalization is a form of discrimination under the Americans With Disabilities Act. We in Congress have a responsibility to help States meet their obligations under Olmstead.

This MICASSA legislation is designed to do just that and make the promise of the ADA a reality. It will help rebalance the current Medicaid long term care system, which spends a disproportionate amount on institutional services. For example, in 2000, 49.5 billion dollars were spent on institutional care, compared to 18.2 billion on community based care. In the same year, only 3 States spent 50 percent or more of their long term care funds under the Medicaid program on home and community based care.

And that means that individuals do not have equal access to community based care throughout this country. An individual should not be asked to move to another state in order to avoid needless segregation. They also should not be moved away from family and friends because their only choice is an institution.

For example, I know a young man in Iowa, Ken Kendall, who is currently living in a nursing home because he cannot access home and community based care. Ken was injured in a serious accident at the age of 17 and sustained a spinal chord injury. With the help of community based services covered by his insurance company, Ken could live in his home in Iowa City. Remaining independent made a tremendous difference in his life.

However, several years ago, Ken lost his health insurance and after a time, he went onto Medicaid. As a Medicaid recipient, Ken was only given the option to live in a nursing home in Waterloo, almost two hours from his friends and family in Iowa City. In the nursing home, Ken has become isolated. He is very far from his family and friends and does not have access to transportation. He has not been to a restaurant or a movie since he moved to the nursing home over two years ago. His life has dramatically changed from when he lived in his own apartment and hired his own attendants to care for him. MICASSA would give him that choice again--the choice to control his own life and live a full and meaningful life in his home community surrounded by his friends and family.

Federal Medicaid policy should reflect the consensus reached in the ADA that Americans with Disabilities should have equal opportunity to contribute to our communities and participate in our society as full citizens. That means no one has to sacrifice their full participation in society because they need help getting out of the house in the morning or assistance with personal care or some other basic service.

I am very pleased that the administration has included the Real Choice Systems Change grants in its budget this year at $40 million dollars. Senator Specter and I have supported these grants for several years now. I also applaud the administration's commitment to The President's New Freedom Initiative for People with Disabilities and believe that this legislation helps promote the goals of that initiative.

Community based attendant services and supports allow people with disabilities to lead independent lives, have jobs, and participate in the community. Some will become taxpayers, some will get an education, and some will participate in recreational and civic activities. But all will experience a chance to make their own choices and govern their own lives.

This bill will open the door to full participation by people with disabilities in our workplaces, our economy, and our American Dream, and I urge all my colleagues to support us on this issue. I want to thank Senator Specter for his leadership on this issue and his commitment to improving access to home and community based services for people with disabilities. I would also like to thank Senators Kennedy, Cochran, Biden, Landrieu, Kerry, Corzine, Schumer, and Clinton for joining me in this important initiative.

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

Mr. President, parliamentary inquiry.

Will the Chair inform the Senator as to the agreement entered into and what is the time agreement?

Therefore, if time is running, it runs off of the other side.

The order was entered into and Mr. Schumer is not here.

Mr. President, parliamentary inquiry: Since the other side is not speaking, does their time run?

Under the previous order, how much time was the Senator from New York given?

Mr. President, I was informed that I may reserve time for the end of the debate also.

How much time do we have remaining?

Five more minutes.

Mr. President, I reserve the remainder of my time.

Mr. President, it is an odd game that is being played here by the majority party of the Senate. First, we asked a vote be put off until after the caucus this afternoon. The majority leader could not even do that. Why do they want to rush a vote at noon after we have been gone for 2 weeks? Senators have just come back. Some Members wanted the opportunity to talk about Mr. Sutton in our caucuses. The majority leader says no, we will vote at noon; we cannot vote at 2:15. We will not have any other votes today but they want to ram this through and vote at noon. I know our assistant minority leader, Senator Reid, asked if we could have the vote later on and the majority leader objected. Why? What are they afraid of?

Again, I point to an incident that happened today and yesterday that again illustrates why people with disabilities have every reason to be out here in the lobby today--and the reception room--opposing Mr. Sutton's nomination. We had a room reserved, the Mansfield Room, for a press conference this morning for disability groups. Somehow yesterday it was taken away from us. We do not know why; it was just taken away. Then we were told we could use the LBJ Room--fine--at 10 o'clock. People with disabilities lined up outside to come in to that press conference at 10 o'clock, but they were not allowed to come in until 9:30. People with wheelchairs, people what seeing eye dogs, people who are hearing impaired, standing in line out there to try to come in here to exercise their legitimate rights; yet they are held up out there because it takes a long time to process them and get them through.

When I heard this was happening, I called Mr. Pickle, the Sergeant at Arms, and he rushed right down there and he made sure they got through. I thank Mr. Pickle.

But why do we have to do that? The people who are down there should have been treated just like a banker, a financier, or K Street lobbyist who come up here when we have votes on the floor. And they were not-- until Mr. Pickle went down there and straightened things out.

People with disabilities struggle every day just to get through. We had years, decades, centuries of discrimination against people with disabilities in this country, so we passed the Americans with Disabilities Act in 1990. Mr. Sutton, the nominee before the Senate, says it is not needed. It was not needed? On National Public Radio he said ``disability discrimination in a constitutional sense is difficult to show.''

We did not think it was that difficult: 25 years of study by the Congress, starting in 1965 with the National Commission on Architectural Barriers, through 1989--25 years. And then Congress, recognizing that we had left out of the Civil Rights Act of 1964 people with disabilities.

After all the studies--we had 17 hearings, we had a markup by five separate committees, 63 public forums across the country, held by Justin Dart, who was President Reagan's appointee to head the National Committee on People With Disabilities. Justin Dart collected over 8,000 pages of testimony of individual acts of discrimination against people with disabilities in this country. Attorney General Thornburg testified on behalf of it and said it was needed, along with Governors and State attorneys general. We had over 300 examples of discrimination by State governments in the legislative record--300 examples of discrimination by State governments. Yet when Patricia Garrett of Alabama was fired from her job because of her disability, Mr. Sutton, in representing the State of Alabama, just said that is tough; we do not need the ADA. He said it is not needed. Well, Congress thought it was needed and people with disabilities all over this country knew it was needed also.

I make it clear, I am not accusing Jeffrey Sutton of having any personal animosity toward people with disabilities. I spent an hour and a half with him. I don't believe he does. But what he does have is a very narrow, rigid view of the law which he summed up best when he said that in the contest involving these laws between the Federal Government and States rights, it

is a zero sum game. In other words, if a claimant on civil rights under a Federal civil rights statute, for example, such as the Americans with Disabilities Act, if that person wins against a State that does not protect those civil rights, then somehow the State loses. The Federal Government wins and the State loses. He says it is a zero sum game.

What an odd view to have that somehow if the civil rights of people with color, the civil rights of women, the civil rights of the elderly, the civil rights of people with disabilities, if somehow they are constitutionally upheld by the Federal courts, a State loses--an odd, odd view. But that is Mr. Sutton's view, a narrow, rigid, interpretation of the law that does not recognize what we did, that does not recognize the history of discrimination, only his own ideology about how that law should be interpreted. If civil rights wins, the State loses, according to Mr. Sutton.

This is what the New York Times said yesterday morning in the editorial: ``Another ideologue for the courts.'' Not that he is a bad man. I am not saying he is a bad man at all. I am just saying his views are antithetical to civil rights laws in this country. That is why over 400 civil rights groups in this country have come out in opposition to Mr. Sutton. Never before have all these groups come together to oppose a nominee to the Federal bench. Maybe this group or that group might have opposed this judge or that judge, but never before have all 400 come together in opposing Mr. Sutton. Yet we are told we have to rush the vote. We have to vote. We cannot debate it. We can't talk to our caucuses; we have to vote at noon.

We hear all this talk that Mr. Sutton was just representing his clients. He wasn't just representing his clients. In his writings, in his statements, in his sayings outside the courtroom, he says his ideology, his belief is that it is a zero sum game. He believes in this federalism stuff.

He says any congressional staffer with a laptop can make constitutional law. That is not what we did when we passed the Americans with Disabilities Act. We spent years documenting discrimination against people with disabilities.

People may get up and say, ``I voted for the Americans with Disabilities Act.'' ``I cosponsored the Americans with Disabilities Act.'' Fine, we appreciate it. It passed the Senate 90 to 6. But I don't understand how you can say you voted for it, you supported the Americans with Disabilities Act, but now you want to put a judge on the bench who wants to undermine that law and has so stated and has so written, that he would be willing to undermine it in preference to States rights.

In 1948, the then-mayor of Minneapolis, Hubert Humphrey, stood up in front of the national convention of the Democratic Party when then Strom Thurmond, who later became a Senator, walked out, took the South with him, and formed the Dixiecrat Party because they didn't like the civil rights plank in the Democratic platform in 1948. It was then- Mayor Humphrey who got up before that Democratic convention and said: It is time we get out of the shadow of States rights and into the sunshine of human rights.

He was right. The history of this country since then has been one of ensuring the civil rights and civil liberties of our citizens.

I say to my fellow Senators, when you come over to vote, go through the reception room. You will see dozens of people there: Hearing impaired, some who are blind, people who use wheelchairs--people with all forms of the different types of disabilities. They are there. Walk by them and tell them you are going to vote for Jeffrey Sutton. Tell them you are going to vote for Jeffrey Sutton because you believe their individual States will protect their civil rights; that the individual States will take care, will make sure they are not discriminated against.

I will.

I just hope Senators will go by and, rather than saying they are going to vote for Sutton, will strike another blow for civil rights in this country and tell the assembled people with disabilities out here in this reception room that we are going to say no to Mr. Sutton and we are going to set a higher standard for our Federal judges.

Let's defeat this nominee, not on a personal basis, but let's have judges who will understand that upholding people's civil rights against States rights is not a zero sum game. When we win on our civil rights, we all win.

I am glad to yield to my friend from Nevada.

That is true.

I say to my friend from Nevada, when my brother Frank was out of school and in the workforce, I remember I was in the military. I was a Navy pilot. I was down in Florida. I wanted my brother to come down and visit me on one of his vacations. He didn't want to do that. I was wondering why.

He said, You know, I am really concerned. I can get a car; I have a driver's license. But he was afraid of staying in hotels and motels because he was concerned because he had read about a couple of motel fires. He said, What if I am in a motel or hotel and there is a fire? I won't be able to hear anything. So he was afraid to travel.

Today when you go to hotels or motels, they have lights that flash and modest little improvements to make sure people with disabilities can basically enjoy the same things we do.

The Senator from Nevada has accurately described what this country was like before the Americans with Disabilities Act. Architectural barriers? My nephew is an architect. After the act was passed, I remember my nephew said, Now we can start designing buildings the way they ought to be designed, with universal accessibility. That is happening today.

There was a young child turned away from a zoo because the child had cerebral palsy. The child was turned away from the zoo because they were afraid that child would scare the chimpanzees. That is a true story.

I ask unanimous consent for 5 more minutes.

Mr. President, a lot of times these debates, especially when they involve a court nominee such as Mr. Sutton, tend to get personal, and they should not. I hope no one here interprets anything I have said as being any kind of personal thing against Mr. Sutton.

I said at the beginning I found him to be a pleasant, intellectual individual with whom I spent an hour and a half. I do not know him personally, of course. That is not the point. It is just like my good friend from Utah, Senator Hatch. Senator Hatch was very helpful when we passed the Americans with Disabilities Act. I have told him that many times. He happens to be a good friend of mine on a whole host of issues on which we have worked together. I have no doubt that perhaps Mr. Sutton has compassion toward people with disabilities, but that also raises a problem with me.

It has been said many times Mr. Sutton's father had a school for kids with cerebral palsy. When Mr. Sutton was in my office, I asked him if that was a segregated school and he said, no, it was not. But he thought I meant male and female. What it was, was kids with cerebral palsy only went to this school. Well, I commend Mr. Sutton's father for his compassion, for having a school for kids with cerebral palsy, but that is what we are trying to get over with the Americans with Disabilities Act. That is what we are trying to get beyond. We are trying to get beyond segregation.

I spoke about my brother Frank when he was sent half way across the State to the school for the deaf--segregation because he was disabled. So, again, to have that mindset that somehow people have to be put in an institution, like the Olmstead case--fortunately, Mr. Sutton did not win that one, but if his view had prevailed, the two women in that case would still be in an institution. Now they are living by themselves, out free to shop, free to make their own meals, free to travel, not being stuck in an institution.

This vote we are about to have has nothing to do with Jeffrey Sutton as a person, but it has a lot to do with him as a potential judge and how he views his role and how he views Congress's role. He said that the Americans with Disabilities Act was not needed. On National Public Radio he said that, ``disability discrimination in a constitutional sense is really very difficult to show.''

Then, later on, Mr. Sutton said that in this context it is a zero sum game; that if civil rights wins, the States lose.

It is not a zero sum game at all. Yes, like my friend from Utah, I believe in federalism. I believe in the Federal/State system on which our country is set up, on which our constitutional framework is established. I think it is the best system ever devised on the face of the Earth. But I do not believe in the kind of federalism that Mr. Sutton espouses, that it is a zero sum game; that if we expand civil rights somehow a State loses, or that somehow Congress does not have the authority, constitutionally, to address the kinds of social ills and social wrongs perpetrated so long in our country on minorities and on people with disabilities. That is why 400 civil rights groups have come out opposed to Mr. Sutton.

We here in the Congress did our job. We worked long and hard over many, many years, Republicans and Democrats, to pass the Americans with Disabilities Act. Mr. Sutton says that discrimination against people with disabilities is very difficult to show. Is that the mindset we want on the Federal bench? I ask my fellow Senators, send a strong message that we are going to stand behind the Americans with Disabilities Act, that we are not going to let it be chiseled away by a Federal judge such as Mr. Sutton. I ask for a ``no'' vote to send that message.

Mr. President, I ask unanimous consent to have printed the Record a list of letters the Committee has received in opposition to the confirmation of Jeffrey Sutton to the Sixth Circuit Court of Appeals, and three of these letters which come from large coalitions of civil rights, women's rights and disability rights organizations.

First, a letter from the Leadership Conference on Civil Rights and the Alliance for Justice, dated April 28, 2003.

Second, a letter from 25 women's groups, dated April 28, 2003.

Third, a letter from ADA WATCH, a coalition of disability rights organizations, dated May 14, 2003.

Mr. President, today, Senator Hagel and I, and others introduce ``The IDEA Full Funding Act of 2003.'' This bill will provide increased mandatory funding for the Individuals with Disabilities Education Act, IDEA, and meet the Federal Government's commitment to pay 40 percent of the average per pupil expenditures. These additional funds will ensure that every child with a disability gets a free, appropriate public education.

In 1975, when the IDEA was passed in the House and Senate, there was an agreement made by negotiators based on the understanding that the Federal Government's goal would be to provide 40 percent of the average per pupil expenditures in each local education area. There was no time frame placed on this goal, but since that time it has been understood that ``full funding'' for IDEA means reaching that 40 percent goal.

For the past 28 years, we have put additional resources into IDEA but we have not come close to full funding. This bill will put our money where our mouth is and say that the federal government will be full partners with states and local governments in meeting the needs of children with disabilities.

This bill fully funds the IDEA. It appropriates funds for the next 10 years, gradually increasing the percentage of funds which are mandatory and increasing the amounts so that in year 8 we are at the level projected to equal 40 percent of the average per pupil expenditure. While we have seen welcome increases in IDEA spending over the past few years, past year increases do not guarantee future increases. This bill guarantees full funding, phased in over 8 years.

This bill does not create a new entitlement program. It provides advanced appropriations for the next 10 years, but it has a set amount for each year, not an open-ended figure.

This bill also provides incentive for compliance with the requirements of IDEA. If all of the IDEA-eligible children are getting the services that they are entitled to, then local property taxpayers get relief.

Last year, the Senate passed an amendment to the reauthorization of the Elementary and Secondary Education Act which would have required full funding of IDEA. The full funding provision was not in the final conference report. Prior to that amendment, there have been 22 separate bills and resolutions in the House and Senate calling for full funding.

This year, the time has come for full funding to make it into law. It has been 28 years since the Federal Government agreed to pay a share of IDEA and it is time to meet that goal.

The IDEA has been remarkably successful. In 1975, only \1/5\ of children with disabilities received a formal education and several States had laws specifically excluding many children with disabilities, including those who were blind, deaf, or had mental health needs from receiving such an education. The most recent data on the number of children served under IDEA indicates that over 6 million children are currently benefiting from the law.

Although IDEA has been successful, there is more work to be done. Every time I speak to school districts in Iowa, they tell me that the costs of special education are very difficult for them to manage. Some parents of children with disabilities also complain that their children are not getting the education promised by IDEA.

This bill will provide significant additional resources. In 2003, we are funding $17.6 percent of the cost at 8.8 billion dollars. Under our bill, this number rises steeply to 22 percent of the cost and 10.8 billion dollars in 2004. The increases continue until 2011, when we reach 40 percent and an expenditure of 24.6 billion. Iowa sees its funding rise from 96 million in 2003 to 278.3 million in 2011. We are more than doubling the resources going to special education in Iowa and elsewhere.

I want to thank Senator Hagel for his ongoing leadership on this issue and for his work in achieving bipartisan support for this bill. I also want to thank Senators Kennedy, Jeffords and Dodd for their longstanding commitment to fully funding IDEA. In addition, I want to acknowledge all of the co-sponsors of this bill, who are joining me today in leading the way for Congress to finally pass full funding into law.

This is a win-win-win bill. With this advance appropriations, students with disabilities will get the public education they have a right to, school districts will be able to provide services without cutting into their general education budgets, and in cases where all IDEA-eligible children are getting the services they are entitled to, property taxpayers get relief.

Mr. President, today, Senator Hagel and I, and others introduce ``The IDEA Full Funding Act of 2003.'' This bill will provide increased mandatory funding for the Individuals with Disabilities Education Act, IDEA, and meet the Federal Government's commitment to pay 40 percent of the average per pupil expenditures. These additional funds will ensure that every child with a disability gets a free, appropriate public education.

In 1975, when the IDEA was passed in the House and Senate, there was an agreement made by negotiators based on the understanding that the Federal Government's goal would be to provide 40 percent of the average per pupil expenditures in each local education area. There was no time frame placed on this goal, but since that time it has been understood that ``full funding'' for IDEA means reaching that 40 percent goal.

For the past 28 years, we have put additional resources into IDEA but we have not come close to full funding. This bill will put our money where our mouth is and say that the federal government will be full partners with states and local governments in meeting the needs of children with disabilities.

This bill fully funds the IDEA. It appropriates funds for the next 10 years, gradually increasing the percentage of funds which are mandatory and increasing the amounts so that in year 8 we are at the level projected to equal 40 percent of the average per pupil expenditure. While we have seen welcome increases in IDEA spending over the past few years, past year increases do not guarantee future increases. This bill guarantees full funding, phased in over 8 years.

This bill does not create a new entitlement program. It provides advanced appropriations for the next 10 years, but it has a set amount for each year, not an open-ended figure.

This bill also provides incentive for compliance with the requirements of IDEA. If all of the IDEA-eligible children are getting the services that they are entitled to, then local property taxpayers get relief.

Last year, the Senate passed an amendment to the reauthorization of the Elementary and Secondary Education Act which would have required full funding of IDEA. The full funding provision was not in the final conference report. Prior to that amendment, there have been 22 separate bills and resolutions in the House and Senate calling for full funding.

This year, the time has come for full funding to make it into law. It has been 28 years since the Federal Government agreed to pay a share of IDEA and it is time to meet that goal.

The IDEA has been remarkably successful. In 1975, only \1/5\ of children with disabilities received a formal education and several States had laws specifically excluding many children with disabilities, including those who were blind, deaf, or had mental health needs from receiving such an education. The most recent data on the number of children served under IDEA indicates that over 6 million children are currently benefiting from the law.

Although IDEA has been successful, there is more work to be done. Every time I speak to school districts in Iowa, they tell me that the costs of special education are very difficult for them to manage. Some parents of children with disabilities also complain that their children are not getting the education promised by IDEA.

This bill will provide significant additional resources. In 2003, we are funding $17.6 percent of the cost at 8.8 billion dollars. Under our bill, this number rises steeply to 22 percent of the cost and 10.8 billion dollars in 2004. The increases continue until 2011, when we reach 40 percent and an expenditure of 24.6 billion. Iowa sees its funding rise from 96 million in 2003 to 278.3 million in 2011. We are more than doubling the resources going to special education in Iowa and elsewhere.

I want to thank Senator Hagel for his ongoing leadership on this issue and for his work in achieving bipartisan support for this bill. I also want to thank Senators Kennedy, Jeffords and Dodd for their longstanding commitment to fully funding IDEA. In addition, I want to acknowledge all of the co-sponsors of this bill, who are joining me today in leading the way for Congress to finally pass full funding into law.

This is a win-win-win bill. With this advance appropriations, students with disabilities will get the public education they have a right to, school districts will be able to provide services without cutting into their general education budgets, and in cases where all IDEA-eligible children are getting the services they are entitled to, property taxpayers get relief.

Mr. President, just before we broke for the recess, I spoke here on the Senate floor for a short amount of time about the nomination of Jeffrey Sutton to be on the Sixth Circuit Court of Appeals and about the deep concerns I have about this nomination. I want to take more time today to explain my concerns that Mr. Sutton, I don't believe, will be able to put aside his own deeply felt and deeply held ideological views; that he will not be able to put aside his determination to be an activist judge and give people a fair and impartial hearing, especially when it comes to cases dealing with civil rights and, more specifically, when it comes to cases dealing with rights under the Americans with Disabilities Act.

I had the opportunity to meet with Mr. Sutton for over an hour and a half in my office. We had a great conversation. I found him to be very personable. I listened to my friend from Ohio talking about how bright he was, that he is an accomplished attorney. I will grant all of that. He is a very bright, capable, and accomplished attorney. He has a great resume: Ohio State Law School, first in his class, and former Ohio Solicitor. He has argued cases before the U.S. Supreme Court, and he has won many of them. But qualifications are just one aspect of whether or not a person ought to have a life tenure--think about it: life tenure--as a Federal judge.

Qualifications are certainly important, obviously. But that is only one part of the equation. The other part has to deal with this person's views. What is the historical analysis of what this person has both said and written in terms of how he would view his role as a Federal judge?

So, again, I think we have a responsibility as Senators to take into account both the qualifications but also this other side of the agenda as to whether or not this person would be a Federal judge who could give a fair and impartial hearing to those who come before him.

These are not occasions on which the Senate ought to just rubberstamp a nominee. This nominee was brought up on the evening before we went out for the break. No one was here. Now it is a Monday, and there are no votes today, so Senators are drifting back from their 2-week spring recess, and we are supposed to vote on Mr. Sutton tomorrow. I hope the majority leader will allow us a little bit more time to discuss this rather than asking Senators just to rubberstamp this nominee.

I can tell you, after careful review of his advocacy, both inside and outside the courtroom, I am not convinced that Mr. Sutton would be able to put aside his personal agenda. I am not convinced that someone with a disability rights or civil rights claim would get a fair shake from Mr. Sutton. Especially, for me, I cannot support putting someone on a Federal bench who has worked to undermine the Americans with Disabilities Act.

Again, many of my colleagues know that when I first came to the Senate in the mid-1980s, I began to work, as I had done in the House, with many disability groups around the country to finally address the glaring omission from the 1964 Civil Rights Act, that glaring omission being Americans with disabilities.

So at that time I became chairman of the Disabilities Subcommittee on the then-Education, Labor, and Health Committee under the great leadership of Senator Kennedy. In fact, before I took over, it was Senator Lowell Weicker, a Republican, who had introduced the first version of the Americans with Disabilities Act, who became a great champion, and still is a great champion, for Americans with disabilities. So it was really a bipartisan effort in those days to get a civil rights bill through that closed that loophole of not having a Federal civil rights bill that covered people with disabilities.

As many of my colleagues knew at that time--maybe some do today--I had a brother with whom I grew up who was deaf. I saw how he had been treated as a child, growing up, and as an adult, and how he was discriminated against simply because he had a disability.

He was sent away at a young age halfway across the State of Iowa to attend the Iowa State School for the Deaf. In those days, they called it the ``School for the Deaf and the Dumb.'' As my brother once said: ``I may be deaf, but I'm not dumb.'' But that is the way people were treated. In other words, if you had a disability, you were segregated, you were taken out of your home, out of your home community, without any consideration for the family or anything, and you were sent to an institution someplace; in this case, it was a school for the deaf.

While he was there, my brother was told he could be one of three things: He could be a baker, a shoe cobbler, or a printer's assistant-- and nothing else. Well, he did not want to be any of those, so they said: OK, you're going to be a baker.

Again, because he had a disability, because he could not hear, it was, I guess, accepted or thought that people had to be told what to do; they could not decide for themselves. Their horizons were limited. That was the real world in which I grew up, the real world of what happened to people with disabilities--travel, accommodations, jobs, employment, everything.

So we in Congress began to look at this. What was it like in this country to be a person using a wheelchair? What was it like to be a person with cerebral palsy? What was it like to be a person with blindness? What was it like to be a person who was deaf, like my brother? What was it like? What were their lives like? How did they live? And how did our Constitution cover them? Were they equal to us? Were they equal to the nondisabled community in America? Or were they somehow discriminated against because of their disability?

We in Congress did not just rush through a law, like Mr. Sutton says. We did not just have a bunch of staff with laptop computers and they just sort of turned it out. We laid the groundwork--years, years, years of accumulating data, of findings, of investigation, of hearings--a legislative record fully documenting the overwhelming evidence that discrimination in this country against people with disabilities was rampant--not a little bit here, not a little bit there, but rampant.

At the time of the drafting of the ADA, we took care to make sure that this important civil rights law had the findings and the constitutional basis to pass muster with the U.S. Supreme Court.

Here are some of the things we did: 25 years of studies by the Congress, going clear back to 1965 with the National Commission on Architectural Barriers; in 1974, the White House Conference on Handicapped Individuals; in 1983, the U.S. Civil Rights Commission published ``Accommodating the Spectrum of Individual Abilities,'' with a comprehensive report on discrimination against people with disabilities; in 1986, the National Council on Disabilities--I knew them well; they were the first group I started to work with when I came to the Senate--15 appointees by then-President Reagan, and their report documenting pervasive discrimination and the need for an omnibus civil rights statute.

I am not going to go through them all, but, again: study after study, 17 formal hearings by congressional committees and subcommittees, a markup by 5 separate committees, 63 public forums across the country, oral and written testimony by the Attorney General of the United States, Governors, State attorneys general, State legislators.

We had in excess of 300 examples of discrimination by State governments in the legislative record--300 examples--and yet in the Garrett case--I will speak more about that; and I was there; I was sitting in the Supreme Court the day Mr. Sutton argued the case there-- Mr. Sutton said--and I could not believe my ears when I heard

it--he said there was really no evidence that this was needed, that basically States were doing a pretty good job, that the ADA was not needed. There were over 300 examples of discrimination by State governments.

It took the tireless work of Democrats and Republicans, and when it passed the Senate, it passed 91 to 6. That is pretty overwhelming support. In the House, it passed 403 to 20. Attorney General Thornburgh, Republican Attorney General, the Chamber of Commerce, President Bush, the first one, stood with us. Why did we all stand together on the Americans with Disabilities Act? It was the right thing to do. Justice demanded it.

At the time he signed the ADA into law, President Bush had many good things to say about it. I ask unanimous consent to print in the Record President Bush's statement.

A lot of the work we did is being termed irrelevant. Somehow, according to Mr. Sutton, we did not do enough. You may be wondering why I go into all of this. Mr. Sutton says we didn't have the findings, basically.

When I look back on the Supreme Court decisions handed down in the last few years, I am troubled that a lot of the work we have done on civil rights over the last 30 years is in jeopardy. In particular, I see a chipping away of the Americans with Disabilities Act, the bill that symbolizes the inclusion of people in our society. Mr. Sutton has held the hammer and the chisel.

That is why I am convinced Mr. Sutton does not possess all of the qualities needed to serve a life tenure on the Sixth Circuit. I am not convinced that someone with a civil rights claim could walk in the courtroom and be confident they will get a fair shake.

It is not the person himself that troubles me. It is his ideology. It is where he is coming from. It is what he has said and written and advocated. He has advocated for the proposition that civil rights protections for persons with disabilities belongs in the hands of each of the 50 separate States. His arguments before the Supreme Court articulate that States can do a better job of it than Congress and that we did not find enough evidence.

We found the evidence, and it is there in the record. I don't know how anyone in the real world could say: Disability discrimination in a constitutional sense is really difficult to show.

That is what Jeffrey Sutton said on National Public Radio October 11, 2000. You will hear a lot of talk, probably today and leading up to the vote tomorrow, that Jeffrey Sutton was representing his clients. He said this on National Public Radio. He was not representing a client. He said: It is really difficult to show disability discrimination in a constitutional sense.

The unfortunate history of unequal treatment of persons with disabilities in our country has been locked away in institutions for years: People with mental disabilities are subjected to involuntary sterilization; persons with severe hearing loss labeled, as my brother, deaf and dumb; and for way too many years, those who were blind forced to sell pencils on the street corner for a living.

Mr. Sutton seems to have an extremely limited view of our authority as Congress to legislate in this important civil rights area, as well as others. From his arguments before the Supreme Court, he seems to believe each State does its job to protect the constitutional rights of persons with disabilities as the State sees fit. After what I saw, what I heard after all these many years, all the hearings and the record, I can't fathom anyone would actually reach the conclusion that the States were doing a good job protecting people with disabilities. Some States, yes, had pretty decent laws on the books covering people with disabilities. Other States did not.

But I ask, as an American citizen, as a citizen of the United States, should your civil rights depend on your address? Should your civil rights depend on the State in which you happen to live?

I believe the Constitution and civil rights cover us all. And what we found during all these years, all the hearings, the record, was that there was a patchwork quilt of laws around the country so if you were in a State, maybe, that didn't have very good laws and protection of people with disabilities, the only way you could ensure your civil rights was to move to another State. I don't believe that is what the Constitution intends when it covers all Americans with civil rights.

Again, people will say: Mr. Sutton was just defending his clients. He was duty bound to advocate on behalf of his clients.

I am a lawyer. I know the professional code of conduct. But that doesn't tell the whole story. Mr. Sutton has written articles, participated in radio talk shows and panel discussions, where he has expressed his own personal views--not his clients', his views. That kind of publicity is not required by his role as a lawyer advocating on behalf of clients. It is clear to me this lifetime appointment would be detrimental to the civil rights that protect all Americans. He zealously advocates for States rights at the expense of individual rights. Persons with disabilities, senior workers, people of color, and underprivileged children deserve better.

More than 400 disability rights and civil rights groups agree. This chart depicts that. More than 400 have come out in opposition to Mr. Sutton being on the Sixth Circuit.

Jeffrey Sutton did not have to talk to the Legal Times about his pursuit of federalism cases. I want to speak about not the clients he has represented but what he said outside of the courtroom. In a November 2, 1998 article, the reporter writes that Mr. Sutton told him he and his staff were ``always on the lookout for cases coming before the court that raise issues of federalism or will affect local and State government interests.'' He is quoted as saying:

It doesn't get me invited to cocktail parties, but I love

these issues. I believe in this federalism stuff.

From the cases he has aggressively pursued, his view is that State power trumps the rights of U.S. citizens. I believe in States rights, too, to do certain things. One of the geniuses of our system is 50 different States experimenting in doing things. But when it comes to basic human rights, civil rights, we are all U.S. citizens. As I said, we should not let a State decide what our civil rights are. That is decided by the Constitution. My freedom of speech should not depend on whether I am in Iowa or California or Georgia or wherever. It is the fact that I am a U.S. citizen, here in this country. The Bill of Rights covers us all regardless of the State in which we may happen to live.

On National Public Radio he said:

As with age discrimination, disability discrimination in a

constitutional sense is really very difficult to show.

That was on National Public Radio, October 11, 2000. I guess, according to Mr. Sutton, all of the hearings we had, all of the markups, all of the public forums, all of the witnesses, all of the examples, do not mean a thing. What matters to him is his narrow view that it is up to the States to take care of this.

Now, again, on that same NPR radio broadcast, Mr. Sutton said:

I think it's a positive attribute of this system of divided

government that when 51 different sovereigns [including the

District of Columbia there], 51 different legislatures [we

don't have that here in the District of Columbia] tackle a

difficult social problem, they all arrive at different

approaches, and the ultimate idea and really transcendent

purpose of federalism is to have them compete for the best

solution.

He wasn't representing a client here. These are his own personal views. What happens when a State wins in these competitions? Do they get a prize? What about the people who are in the ``losing'' States? Are they out of luck? As I said before, do they have to move to another State?

After listening to all of the testimony on the ADA over a several years period of time, I find it hard to believe the 50 States were competing for the best solution on disability discrimination.

In 1997, Mr. Sutton served as a moderator for a panel discussion sponsored by the Federalist Society. As the moderator, Mr. Sutton criticized States for sacrificing ``federalist principles in order to obtain near-term politically favored results.''

I am not certain I know what that means, but I do know it is an opinion. He wasn't representing a client. It is his opinion. I think it is an opinion that State officials should challenge things like the ADA and civil rights laws that cover the elderly, and the Violence Against Women Act.

According to Mr. Sutton, the reason they don't contest a lot of this is because they don't want to upset the respective constituency with what those constituents would probably consider bad policy. I can think of a lot of people in my State who would consider it bad policy to allow discrimination against people with disabilities. Mr. Sutton said he was ``frustrated that, in the pursuit of particular political goals, the States are not rising up together and defending their authority against the encroachments by Congress.'' Frustrated? To me, that is a personal opinion, a personal emotion. I think the majority of us experience frustration when someone is adamant about disagreeing with us. We get frustrated when someone doesn't agree with our point of view. So he is ``frustrated that States are not rising up together''-- these are his words--``and defending their authority against encroachments by Congress.''

If he is frustrated, he must think that is what they should do. Maybe he is agitated because the States and Federal civil rights laws are different than what he would want. Maybe most States don't see them as encroachments on their State authority.

A lot of States are not joining in his extreme views on congressional authority to pass civil rights laws. Some States see it differently than Mr. Sutton. Fourteen State attorneys general signed on in support of Patricia Garrett in Garrett v. Alabama. Arizona, Connecticut, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Missouri, New Mexico, New York, North Dakota, Vermont, and Washington wrote saying that Congress had the authority to enact the ADA. The 14 States I just named opposed Alabama's position represented and argued by Mr. Sutton.

Mr. Sutton seemed to favor a States rights philosophy in civil rights based on a personal opinion about what Congress is and what Congress does and how we do our work. Listen to this on the Violence Against Women Act, on which we had extensive findings that supported the passage of that law. He said in an article for the Federalist Society-- again not representing a client, but in his own writing:

Unexamined deference to the VAWA [Violence Against Women

Act] factfindings . . . would give to any congressional

staffer with a laptop the ultimate Marbury power--to have the

final say over what amounts to interstate commerce. . . .

Evidently, we Senators and Congressmen, with all these hearings, all of the investigations, all of the public forums, all of the testimony we have, all of the examples we have compiled--it doesn't mean anything. Evidently, we don't do that. We just have staffers with laptops and they churn out civil rights legislation.

Finally, in another article for the Federalist Society in 2001, Mr. Sutton stated his belief that federalism is a ``zero-sum'' situation in which either a State or Federal lawmaking prerogative ``must fall.'' He wrote:

The National Government in these types of cases invariably

becomes the State's loss and vice versa.

Think about that. Passing the Americans with Disabilities Act becomes a State's loss. How can Mr. Sutton hold such a view, that we break down the barriers of discrimination long held in our society against people with disabilities; and he says the Federal Government wins, the State governments lose. Well, quite frankly, we all saw it differently-- Republicans and Democrats. We saw this as a win-win. Everyone wanted this. American citizens wanted it when we broke down these barriers. Statutes like the ADA set a minimum bar for the country. States can always do more, but we passed a minimum bar. To me, that is not a zero- sum game. I don't see the Federal Government winning and States losing on that. I see all of us winning when we become a more inclusive society.

So, again, it is not Mr. Sutton's clients who are driving these issues. It is not just the fact that Mr. Sutton advocated for his clients, as we will hear and have heard and will continue to hear. It is what Mr. Sutton himself believes. It is how he feels. It is his views on whether or not we here in the Congress have the authority to pass civil rights legislation. According to him, no, we don't. The record, Mr. President, was replete. We didn't just pass it overnight, as I said.

We had case after case after case, and I can mention a few. There was the zookeeper who would not admit a child with mental retardation to the zoo because it would upset the chimpanzees. Another child with cerebral palsey was kept out of school because the teacher said his appearance ``nauseated'' his classmates.

What does all this discrimination do to those children with disabilities as they grow up? We had a woman who said:

We can just go on so long constantly reaching dead ends. I

am broke, degraded, angry, and have attempted suicide three

times. I know hundreds. Most of us try, but which way and

where can we go?

Well, in Mr. Sutton's America, she cannot go to the U.S. Congress. Despite all of the evidence, Congress did not have the power to pass the Americans with Disabilities Act because of States rights. We appointed a task force, led by Justin Dart. We went all over the Nation and had 63 meetings, as I said. Justin Dart heard from over 8,000 people in 50 States. He gathered stacks and stacks of letters into evidence. Just as an example from a health administrator who is blind. He wrote:

When I walked into the office of one department head, he

looked at me and said, ``Ah--if I knew you were blind, I

wouldn't have bothered bringing you in for an interview.''

Prior to the ADA, that was all right. A person could be denied a job because he was blind, even though he was fully qualified for it.

We have to go back to July 26, 1990. Well, let's go back to July 25, 1990. On July 25, 1990, if one was a person of color, say an African American, and they saw an ad in the paper for a job for which they were qualified, and they went down to interview for this job and their prospective employer took a look at them and said, get out of here, I am not hiring black people--probably would have used a word worse than that--on July 25 of 1990, he could have walked out of that door, gone right down the street to the courthouse and filed a lawsuit for a violation of his civil rights.

The same day, July 25, 1990, a person using a wheelchair sees an ad in the paper for a job for which they are qualified. They roll their wheelchair down there, go in the door, and the prospective employer looks at them and says, get out of here; I am not hiring your kind; cripples, get out of here. I do not want anybody like you around here. The person rolled their wheelchair out of there and went down to the courthouse on July 25, 1990, but guess what, the courthouse door was locked. They could not get in because they had no cause of action.

On July 25, 1990, as it had been for hundreds of years before, to discriminate against a person on the basis of their disability was not a violation of their civil rights. But on July 26, 1990, after President Bush signed it into law, if a person rolled their wheelchair down there and someone said, get out of here; I am not hiring people in wheelchairs, they could roll their wheelchair down to the courthouse door and, just like African Americans, or national origin, religion, or sex, they could then get in the courthouse door. Think about that. Before that, they could not do anything.

I will be honest and say some States did have certain laws on the books that might have protected people with disabilities. A lot of States did not. That is why we found this patchwork quilt. So a person's civil rights depended upon what State they lived in. We said, that is not correct. We said, that should not be so.

Well, Mr. Sutton's view that the Americans with Disabilities Act is not needed would turn us back to July 25, 1990, where one could be discriminated against.

I suppose Mr. Sutton might say, well, that was then; this is now. States are more enlightened now. Surely they would not do anything like that now.

A couple of years ago--I think 4 years ago, if I am not mistaken-- Patricia Garrett, from Alabama, had breast cancer. Patricia Garrett is right here in this picture. She went for medical attention, had surgery, chemotherapy, and then she returned to her work as a nursing supervisor.

Her boss wanted to get rid of her, not because she could not do her job but because her boss did not like having people around who were sick and had cancer. So Mrs. Garrett lost her job. She had to take a lower-paying job, but she decided to fight back. This was in 1997.

Six years later, she is still fighting in the courts about whether Congress had the ability to pass a law that applied to her because Alabama did not. She had to litigate whether Congress could pass the

Mr. President, no doubt Mr. Sutton is a very bright individual. He is very capable. He has argued cases before the Supreme Court. I don't argue his qualifications--not a bit. But I do argue his views--his views which, if he is permitted to take a seat on the Sixth Circuit Court of Appeals, I believe would mean that when Mrs. Garrett or my nephew Kelly or other people with disabilities walked into that courtroom, or wheeled their chairs into that courtroom--that Mr. Sutton wouldn't see a person. He would not see the years and years of discrimination against people with disabilities. He would not see what that individual person has to put up with day after day.

He would only see one thing: What is the State law? If the State law did not cover it, then we in Congress have no power to act.

That, Mr. President, is an extreme view--an extreme activist view--of the role of our Federal judges, and one which this Senate should not accept.

I yield the floor.

I thank the Senator for the dialog. I thank the Senator for his statement, but I thank the Senator for his great leadership in the 1980s.

When I first came here in 1985 and became a member of the Labor Committee under the leadership of Mr. Kennedy, the Senator from Massachusetts, we were beginning to develop, as the Senator knows, at that time, the underlying legislation for ADA. It was the Senator from Massachusetts who provided the great leadership that brought us together--Republicans and Democrats, Republican Attorney General, Republican President, States attorneys general, Governors--all over the country, coming together saying, finally, we have to do something about this.

That is why Mr. Sutton's view is so disturbing in how he approaches this matter. As the Senator from Massachusetts so correctly stated, a lot of people are saying he was representing his client. However, he was on an NPR radio interview--not representing a client there, he was representing himself--in which he said disability discrimination in a constitutional test is hard to show, difficult to show.

The Senator from Massachusetts alluded to how much work we had done to show that, 25 years of study. The first study done by Congress showing discrimination against people with disabilities was in 1965, the National Commission on Architectural Behaviors. Finally, in 1989 we passed the Americans with Disabilities Act. Mr. Sutton says that is not enough.

As the Senator from Massachusetts pointed out, we had 17 formal hearings by the committee of the Senator from Massachusetts and the subcommittee which I chaired. Five separate committees marked up this bill. We had 63 public forums across the country, led by Justin Dart, head of the President's national committee--8,000 pages of testimony-- as the Senator mentioned, the Attorney General of the United States, Thornburg, Governors, State attorneys general, State legislators. But especially as it pertains to the Garrett case, Mr. Sutton basically said that Congress had not made a showing, that States were not living up to their responsibility to protect people with disabilities. There were 300 examples that came into our committee regarding discrimination by State governments. Mr. Sutton says that is not enough.

I wonder aloud to my friend from Massachusetts, how many do we need, 325? Is it 350? What is the magic number to show that State governments were violating constitutional rights of their citizens? With 300 examples, Mr. Sutton says that is not good enough.

I thank the Senator from Massachusetts for his statement, for his lifelong advocacy and support, especially of people with disabilities. I have geared my remarks on that--and for his advocacy and support for the Americans with Disabilities Act.

People say Mr. Sutton is a nice guy and all that kind of stuff. I suppose he is. I spent an hour and a half with him. I found him to be a very pleasurable individual. The Senator from Ohio said that he does not have any bias against people with disabilities. I don't contend that. I know the Senator from Massachusetts does not contend that Mr. Sutton has any personal bias against people with disabilities. However, his rigid ideology in that we in the Congress cannot pass national laws protecting the civil rights of people with disabilities sets the clock back 25 years or more. So that is the problem with Mr. Sutton. He has this rigid ideology that says people may be hurting, people may be discriminated against because they use a wheelchair or they have cerebral palsy or they are deaf or they are blind, and isn't that just too bad, our hearts go out to them, but we can't do anything about it unless the State does something about it.

I find that to be the primary reason why Mr. Sutton should not be on the circuit court of appeals. If he wants to be on the State bench some place, at a State court he can espouse that, but not as a member of the circuit court of the United States.

I thank the Senator from Massachusetts.