Floor Statements

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I listened with care to the arguments espoused now by my good friend and colleague from Ohio, Senator DeWine. I compliment him on many aspects of his statement especially when he first opened up and said that he believed the Court got it wrong in the Garrett case; Congress did have our findings, which I have pointed out time and time again this afternoon that, in fact, Congress did have years and years of testimony, markups by five separate committees, 17 formal hearings, on and on, making the case for the Americans with Disabilities Act. As I understood what my colleague from Ohio said, he believed the Court got it wrong. I commend him for his statement on that; obviously, I concur in that opinion.

My good friend from Ohio goes on to say that basically Mr. Sutton, in arguing against Mrs. Garrett and in arguing for the State of Alabama in this case, was simply representing his client and following the canons of legal ethics in making sure he fought as vigorously as possible on behalf of his client. I understand that and I can accept that is what Mr. Sutton was doing in this particular case.

However, the canons of legal ethics also make it clear that in representing your client to the best of your ability and to vigorously defend your client that you also have to adhere to the codes of ethics and legal ethics and one of those is to be truthful and to do due diligence in terms of understanding the parameters of mistakes. People do make mistakes; I understand that, but I do believe Mr. Sutton in what he said in his oral argument before the Court when he said the ADA was not needed. I think that goes a little bit far. Earlier I said he either did not know what Congress had done or he did know and treated it with disdain. If that were the only thing, if Mr. Sutton's representation in the Garrett case were the only thing, I would say those who oppose him would, indeed, have a weak reed on which to stand.

But that is not the point. It is not just Garrett. It is the things Mr. Sutton has said outside of his representation of a legal client.

Before I get to that I will, again, reiterate for the sake of emphasis what the Senator from Massachusetts, Mr. Kennedy, said earlier, that in all of his representations he has never taken a case on the other side that is against States rights. Never; not one. So he picks out and looks at those cases where he can be on the side of States rights versus ability or the authority of Congress to legislate on a national basis.

Beyond that, it is what Mr. Sutton has said outside of the courtroom. First, I have pointed out before the Legal Times article in 1998 in which Mr. Sutton told a reporter he and his staff were always on the lookout for cases that would be coming before the Court that raise issues of federalism. He is always looking out for those cases. And what cases does he take? Only those in which he can argue on behalf of States rights versus Federal authority. He says: It does not get me invited to cocktail parties, but I love

these issues. I believe in this federalism stuff.

Again, that in and of itself might be kind of harmless. But then on National Public Radio in 2000 he said, ``As with age discrimination, disability discrimination in the Constitution is really very difficult to show.'' Here is the evidence: 17 hearings, markup by five committees, 63 public forums across the country, thousands of pages of documents, oral and written testimony by the Attorney General of the United States, Governors, State attorneys general, State legislators, or 300 examples of discrimination by State governments, all on the legislative record. Yet he said it is really difficult to show. He did not say this on behalf of a client; he said this in a radio interview. So we have to add all of these and look at the whole picture that emerges of Mr. Sutton.

Then in an article for the Federalist Society of 2000 Mr. Sutton says: Unexamined deference to the Violence Against Women Act fact findings would give to any congressional staffer with a laptop the ultimate Marbury power to have the final say over what amounts to interstate commerce.

Take that with the statement about how difficult it is to show in a constitutional sense, discrimination against disability, then his comments about how he believes and loves this federalism stuff, and the fact that he only takes cases on that side of the ledger. It adds up to one thing: That Mr. Sutton, in wanting to be a Federal judge, believes that when it comes to civil rights legislation, States rights trumps what we do here. When it comes to our ability to address underlying civil rights issues, States rights trumps the Federal Government. The fact he would even think that somehow Congress, in passing a law such as the ADA or the Violence Against Women Act, or any of these other civil rights bills, that somehow we have a staffer just sit down and type it out on a laptop and we bring it out here and pass it, again, that either illustrates that Mr. Sutton has a terribly uninformed view as to how we operate or he just has a disdain for what we do here.

As I said, I may disagree with some of my colleagues on the other side of the aisle on this issue or that issue, or how we approach this, but I do believe, whether it is under Republican control or Democratic control, Senators and Congressmen work very hard. We take an oath of office to uphold and defend the Constitution. We do not come out here willy-nilly and let ``staffers with laptops'' draft up a bill and just sort of vote it through. That is not what we do.

According to Mr. Sutton, he says we do that. Well, we do not do that. We have hearings. We have findings. We work things out. We took a long time in the case of the Americans with Disabilities Act--many, many years--to get it right, to make sure that we pass constitutional muster.

So it is not just Mr. Sutton's representation of his client in any particular case. It is the cases he takes, the writings he has made, the statements he has made outside the courtroom that indicate he would be an ideology-driven, activist judge on the circuit court.

If Mr. Sutton is so balanced, why didn't he ever take a case that took the opposite side on States rights? Not one. Not one.

My friend from Utah earlier pointed out he has represented people with disabilities and he sits on a board that looks out for the interests of people with disabilities. Let's take a look at that. Jeffrey Sutton did, indeed, represent the National Coalition of Students with Disabilities. According to my staff's research, the case was filed on November 6, 2000. Mr. Sutton was nominated for this court on May 9, 2001, almost 6 months later, and then Mr. Sutton did not become attorney of record on this case until April 26, 2002. That is quite a bit later. I find that very curious. In all the cases Mr. Sutton has taken, the one case they point to where he represented some people with disabilities he took after he was nominated for the vacancy on the Sixth Circuit Court of Appeals.

We have heard here time and time again that Mr. Sutton represented Cheryl Fischer in her attempt to be admitted to Case Western Medical School. Again, Mr. Sutton did work on the case, but he did not represent Cheryl Fischer. He was the Ohio Solicitor. He represented the Ohio Civil Rights Commission that supported Cheryl Fischer because that was his job. Again, he represented his client, which was the Ohio Civil Rights Commission. Cheryl Fischer's attorney was Thomas Andrew Downing.

Again, I commend Mr. Sutton's work on that case. But I guess it troubles me that Mr. Sutton's hearing testimony indicates his view that his work on that single case, a case in which he acted in his official capacity, balances out the significant impact that his arguments had on all these other cases, Garrett included.

Last, someone said Mr. Sutton sits on the board of the Equal Justice Foundation. Mr. Sutton came on that board a year before he was nominated. My question is, Has Mr. Sutton ever been the lawyer for any of the cases my colleagues mentioned that the foundation took? The foundation took cases. Was Mr. Sutton ever a lawyer for any of the cases my colleagues mentioned?

My friend from Utah named a few individuals who ``work in the disability community'' who support Mr. Sutton. I understand that. There are a few individuals who claim to be active in the disability community, and they support Mr. Sutton's nomination. But here is a list of 400 civil rights organizations, including every major disability organization, that have come together opposed to Mr. Sutton's nomination. As I look through this list, as I look especially at those who deal with disability issues, because that is my area of interest, I see sometimes they might have been opposed to this judge and then a different part of the group might have been opposed to that judge, but this is the first time that I know of that all of them came together on one judge: Mr. Sutton. All of them came together in opposing him.

My friend from Utah mentioned a person in particular, Francis Beytagh, mentioned by the Senator as the Director of the National Center of Law and the Handicapped.

I have been dealing in disability issues now going on 25 years. I said I don't know about this group. Let's find out about it. There is nothing in Mr. Beytagh's current and very detailed resume posted on the Web page of the Florida Coastal School of Law that mentions any work of his in the disability community--not even one mention. But I did find out that the National Center of Law and the Handicapped was founded in the early 1970s, in South Bend, IN, and has not existed for 15 years at least, according to Harvey Bender, one of its founders.

I don't know. My friend from Utah said he was the legal director for the National Center of Law and the Handicapped. We can't even find that that exists anymore, but evidently, in the 1970s, it was someplace at Notre Dame.

I understand from Mr. Beytagh's letter of support he worked extensively with Mr. Sutton when Mr. Beytagh was Dean of the Ohio Law School, and I also notice Mr. Beytagh also worked for Jones Day law firm, which is on his resume, which of course is the law firm for which Mr. Sutton works.

That is all great. But the statement that Mr. Beytagh represents a viewpoint of the disability community is totally inaccurate--totally inaccurate.

I just wanted to make those points to clear up some misconceptions that may have come out here on the floor earlier today, and hopefully I will have some more to say about this tomorrow.

Again, I want to make it very clear that it is not just Mr. Sutton's statements in the Garrett case. My friend from Ohio, Senator DeWine, is absolutely right. He is representing his client. That is not the point.

However, he did say one thing in that case that bothers me. That was, basically, that ADA was not needed.

OK, maybe you might excuse that and say that is just pushing the envelope on being a vigorous proponent of his client's views. But then take that in the contextual framework of everything else--Mr. Sutton always taking cases that are just on one side of the States rights issue, just one side; the fact that on numerous occasions outside the courtroom, in speaking and in writing, Mr. Sutton has shown either a total misunderstanding of how we operate here or a clear disdain for the ability of Congress to respond nationally in the area of civil rights. Take this all together and, again, it points to a person who has an ideology, as the New

York Times editorial said this morning: It is another ideologue for the court, someone who is driven by an ideology.

I don't mind someone having an ideology. All of us have different beliefs. But to be driven by an ideology and to carry that on the court indicates to me that Mr. Sutton would be an ideologically driven activist judge who would do all that he could to find on behalf of States rights as opposed to Federal rights.

There may be times when States rights should trump Federal rights-- obviously. Sometimes Federal rights ought to trump States rights. That is the give and take of our system. But according to Mr. Sutton's views, his writings, his statements, the cases he has taken, his view is that States rights should always trump what we do here at the Federal level.

That is why I believe Mr. Sutton should not be on the circuit court. Maybe he should be on a State court someplace but not on the Federal bench.

I yield the floor. I suggest the absence of a quorum.

Mr. President, our nation is at an economic crossroads. This budget resolution conference report is an important document, setting out a course of policy for the coming decade. I oppose this resolution. I believe it takes us dangerously in the wrong direction as a country.

We face a demographic shift as the baby boomers retire. We need to provide for the costs of Social Security and Medicare in the coming decades. I believe the elderly deserve a decent prescription drug benefit. We must provide a quality education for our children in an ever more competitive world

where a large part of our advantage is the skills of our workforce.

Prior to the 2001 tax bill, we were on a path to eliminate publicly held debt and to meet those needs. Now, the President is again proposing tax cuts of a similar size despite the fact that the surpluses predicted in 2001 have totally disappeared. Those projected surpluses have been replaced by record deficits. We may have historic deficits near $400 billion this year and next.

The ranking member of the Budget Committee explained earlier today on the floor that the largest single factor in turning surpluses to deficits has been that 2001 tax cut. That tax cut, which I opposed, is more responsible for deficits in the long term than the downturn of the economy, and more responsible than the new spending on defense and homeland security that was made necessary by the attacks of 9-11.

The President's new proposed tax cuts are largely provided for in this budget resolution--over $1 trillion worth. If made permanent, their cost to the Treasury will be larger than the entire projected shortfall in both Social Security and Medicare over the coming 75 years.

The proposal before the Senate is radical. So-called supply-side economics, manifested in the 1981 tax cut, brought us huge deficits in the 1980s. Unemployment skyrocketed from 7.4 percent to 10.8 percent in just 15 months. Supply-siders tried again in 2001, and we have lost 2 million jobs. Now we are being asked to bet the farm for the third try. The economists who are so sure that this third bet will work are the same ones who predicted economic destruction when we passed measures to balance the budget in 1993, which led to strong economic growth.

The budget resolution will produce $1.7 trillion in new Federal Government debt. That debt will compete with the private sector for funds, driving up interest rates. And it puts a break on economic growth, especially harming the housing, auto and agriculture sectors.

The Congressional Budget Office has concluded that the President's plan--which is very similar to this resolution--would actually reduce economic growth by almost 1 percent. The CBO, now under a just-departed member of the President's Council of Economic Advisors, did an analysis of the budget proposal under so called dynamic scoring. The supplysiders say that economic analysis will show how much good the budget will do. What did it show? More debt.

I believe that a short term economic growth package could be very helpful. We could make temporary tax relief available to working families immediately and provide financial assistance to states facing fiscal crisis. That would be stimulative. But the budget resolution proposes that only 5 percent of the tax cuts will be available this year. The proposal assumes that a huge share of the tax cuts will go to the very wealthy, those making $300,000, $500,000, and far more than a million dollars a year. There is nothing stimulative about such a proposal.

We need a budget that is balanced, that takes the approach that we need to reduce the debt to take care of the baby boomers and provide for a decent drug benefit for the elderly. Clearly, the $400 billion proposed for prescription drugs and other medical reforms is far too low for that purpose. The total drug cost of the elderly in the coming 10 years is estimated to be $1.8 trillion. While we should not cover all of that cost, far less than a quarter is not enough.

We need a budget that provides for more for the education of our children. This budget calls for education spending that is $4 billion less than the Senate measure for the coming year and $20 billion below that level over the coming 10 years. No Child Left Behind is not adequately funded. IDEA, a program Congress promised to provide 40 percent of the funds for decades ago is still grossly underfunded, meaning higher property taxes in almost every school district in the country.

Mr. President, we are wrapping up prior to going on a 2- week break from the Congress. We have the supplemental appropriations bill yet to do, so we are wrapping up this evening, late on Friday night. Congress will be gone for 2 weeks.

Something happens when we come back. Something very important and something very meaningful happens when we come back. I will talk about that for a few moments.

Mr. President, what is going to happen when we come back, there will be at some point soon after we get back from our break, a vote up or down on the Senate floor on whether or not the Senate will advise and consent to approving President Bush's nominee, Mr. Jeffrey Sutton, to be a judge on the Sixth Circuit Court of Appeals.

I will speak for a while tonight about Jeffrey Sutton, but when we come back I will have a lot more to say. I don't think too many people have focused on this. There has been a lot of talk about Mr. Estrada and now there is talk about Judge Owen from Texas but not too much has been said about Mr. Sutton. I will lay out the case and lay out for my fellow Senators and for the public at large what is at stake in this nomination.

First, for the record, Mr. Sutton is a 42-year-old lawyer, currently a partner at Jones, Day, Reavis and Pogue in the Columbus, OH, office. He is an adjunct

professor of law at Ohio State University College of Law. He served as State Solicitor of Ohio from 1995 to 1998. He is a former law clerk to Justice Powell and Justice Scalia and Justice Thomas Meskill of the Second Circuit Court of Appeals. He has been nominated by President Bush to be a member of the Sixth Circuit Court of Appeals.

At the outset, Jeffrey Sutton has a great resume. He hails from Ohio State Law School, is a former solicitor for the State of Ohio, and he has argued cases before the U.S. Supreme Court. Quite frankly, he has won many of them. So he has a great resume. Quite frankly, my arguments will not be about whether he is qualified. That is not the point.

I will state at the outset in terms of legal qualifications and background that Mr. Sutton is qualified to sit on a bench. However, I don't believe that is all we have to look at.

I had the opportunity to meet with Mr. Sutton for about an hour and a half in my office. He was kind enough to come to my office. We sat there and discussed an issue of great importance to me and to him. We had a great conversation. I found him to be personable. I found him to be highly intelligent, very bright. He is definitely an accomplished attorney. Frankly, I enjoyed my conversation with him for an hour and a half.

However, I take very seriously our responsibility to advise and consent on lifetime judicial nominees. These are not positions to rubberstamp or just to lightly say that simply because someone is qualified they should be on the court. I have done a careful review of Mr. Sutton's advocacy inside and outside the courtroom.

What I come to, I am not convinced Jeffrey Sutton would be able to put aside his own personal agenda and be a fair and balanced judge. Especially for me, I cannot support putting someone on a Federal circuit court who has worked, worked assiduously, worked intelligently, to undermine the Americans with Disabilities Act.

As many here know, my brother, Frank, now deceased, was deaf. Through his eyes and through his life, my family and I saw firsthand what discrimination against persons with disabilities looks like. It was not something abstract. It was real. It was personal. It was up close. I often said if I could ever be in a position to do something about the kind of discrimination that my brother and so many others had faced, I would do it. Through the generosity of the voters of Iowa, I was in that position. In both the House and later in the Senate, I spent my time working to develop legislation to bring out of the shadows of discrimination, of institutionalization, people with disabilities, bring them out of the shadows and bring into the sunshine of civil rights laws in this country.

The day before the Americans with Disabilities Act was signed by the first President Bush, the day before it was signed, if you were a person of color in this country, say, you were an African American, and you went down the street and answered an ad for a job for which you were qualified, and you walked in there and your prospective employer looked at you and said, I'm not hiring Black people, get out of here. You could have walked out that door, walked down the street, and walked right into the courthouse because we passed a Civil Rights Act in 1964 that outlaws, bans that kind of discrimination, based upon race.

If, however, on that same day a person in a wheelchair, qualified for that job, had rolled that wheelchair down there and the prospective employer looked at you and said, Get out of here; I don't hire cripples, and you rolled that wheelchair down to the courthouse door, the doors were locked. They were open if you were a person of color and you had been discriminated against. But, if you were a person with a disability, the courthouse door was locked because there was no law that banned discrimination based upon disability.

The next day President Bush signed it into law and you, Mr. President, or anybody else who might have a disability, took their place alongside those who had been brought into our civil rights laws in America.

We did not pass that bill overnight. We didn't just all of a sudden decide we were going to pass a civil rights bill for people with disabilities, and pass it. We spent years. I am going to have more to say about this when we come back after the break, but we spent years on this, holding hearings and hearings, in forums all over the United States; a Presidential task force appointed by a Republican President, having hearings all over the United States. There were years of drafting, debating, trying to hone it down to make sure we had it right. With bipartisan support it passed overwhelmingly in the Senate. It passed overwhelmingly in the House of Representatives with bipartisan support.

I will never forget that grand day when President Bush signed that into law on the White House lawn. At that time it was the biggest gathering ever in White House history for the signing of legislation.

Justin Dart was there. Justin Dart was right there on the platform. Justin Dart, the hero of the disability rights movement in America, now also sadly deceased. Justin Dart sitting up there, and President Bush talking about Justin Dart leading this great movement to bring people with disabilities under our civil rights laws.

Here is what President Bush said that morning:

The Civil Rights Act of '64 took a bold step towards

righting that wrong--the wrong of discrimination against

people of color--but the stark fact remained that people with

disabilities were still victim of segregation and

discrimination, and this was intolerable. Today's legislation

brings us closer to that day when no Americans will ever

again be deprived of their basic guarantee of life, liberty,

and the pursuit of happiness.

Justin Dart was there that day. Before he died, Justin Dart wrote this letter:

I feel certain that the great majority of 54 million

Americans with disabilities, and millions more of their

family members, join me in urging President Bush to

reconsider his nomination of Jeffrey Sutton as a Federal

judge.

I won't read the whole letter. I ask unanimous consent Justin Dart's letter be printed in the Record.

We in Congress met, these many years, overwhelming evidence that discrimination in this country against people with disabilities was rampant, unchecked, building up year after year. It was not just in the private sector but in the public sector. State governments and the Federal Government discriminated against people with disabilities. It was pervasive in our society. We took care, when we passed that bill, to make sure we had the findings and the constitutional

basis to pass muster in the United States Supreme Court.

The signing sealed the work of a monumental bipartisan effort that sought to right decades of wrong. It took the tireless work of Democrats and Republicans alike. As I said, it passed the Senate 91 to 6. The House passed it 402 to 20. Then-Attorney General Thornburgh was a strong supporter. The Chamber of Commerce was on our side, the business community, the States, President Bush, all stood together. Why did we all stand together on the ADA? Because it was the right thing to do. Justice demanded it.

July 26, 1990--President Bush said a lot of good things that day as he signed this bill. As I said, I will never forget it.

I was proud of this because it represented the hard work of a lot of people and it broke down these old barriers of exclusion and intolerance and injustice toward people with disabilities. Now after all the work we did, all the findings, all the hearings, all the documentation we compiled, all that President Bush said, Mr. Sutton-- guess what he said. He said it wasn't needed. He said the ADA was not needed.

Why did he say it was not needed? Why, because the States were doing the job. This was a State responsibility and Congress did not have the findings that States had been discriminating. As I told Jeffrey Sutton when he sat in my office that day, I said, ``How could you say that?'' I said, ``Did you read all the documentation? Did you read all the findings that we had? Twenty-five years of studies going clear back to 1965 and beyond; 1974. There were 17 formal hearings by congressional committees, markup by 5 separate committees. There were 63 public forums across the country by congressionally established task forces. There was oral and written testimony by the Attorney General of the United States, Governors, States' attorneys general and State legislators. There were over 300 examples of discrimination by State governments in that record.

Yet before the Supreme Court of the United States, Mr. Sutton said it wasn't needed. That is Garrett v. Alabama. I'll have more to say about Pat Garrett, too. But he said it just wasn't needed.

Regarding the Americans With Disabilities Act, I see them chipping away at a law that symbolizes the inclusion of all Americans in our society. For the past few years, Jeffrey Sutton has held the hammer and the chisel.

In my mind it is not about whether he is qualified to be a Federal judge, or whether he is a nice guy. As I said, I happen to have enjoyed my conversation with him. Frankly, I know who the six Senators were who voted against the ADA in the Senate. I hope to enjoy my conversations with them, too. I just disagreed with them and so did 91 other Senators disagree with them. But that doesn't mean the six who voted against it are bad people. I, frankly, enjoy the friendship of those six people.

That is not the point. The point is whether or not someone should be on the circuit court who holds that same kind of opinion. His qualifications--to me, a judge's qualifications are half of the equation. In other words, I think they have to meet the test of are they qualified. I think the other half of our responsibility is to determine whether or not that person can be a fair and balanced judge who understands the role of Congress in correcting ancient wrongs and helping to make our society more fair and more just. Frankly, in his writings and in his statements, and even in my conversation with him in my office, Mr. Sutton seems to have a unique view of our role here that somehow when it comes to civil rights laws, especially the Americans with Disabilities Act, that we have a very narrow area in which we can operate; the rest must be left to the States.

As I said, you read his writings. I was in the Supreme Court. I sat there in the front row the day he argued the Garrett case, sat right next to Bob Dole. And when I heard him stand up and say the ADA was not needed, I said: Wait a minute. When I heard him talk about how we had not really established the record, that we had not really had the findings of State discrimination, I said: How could he possibly say that? Only someone who did not know what we did could ever say that.

And that is what I talked to him about in my office. How could he say such a thing, when we had all this? Well, he said, yes, OK, he appreciated that, but I never got to the bottom of it with him.

Anyway, his arguments before the Supreme Court articulated that States can do a better job of it than we can, and Congress did not find enough evidence. We found the evidence. It is there. It is in the record. It is compiled.

Mr. Sutton has said a lot of times: Well, I was only representing my client, and I am duty bound as a lawyer to do the best I can for my client. And he was representing the State of Alabama. Well, OK, I can accept that. But here is what Mr. Sutton said on National Public Radio on October 11, 2000. Now, a lawyer's responsibility to fully represent his or her client does not spill over into talking on National Public Radio. That is his personal opinion. And here is what he said:

Disability discrimination, in a constitutional sense, is

really difficult to show.

That is what Mr. Sutton said on National Public Radio.

I am going to talk more about this when we come back after the break, about the extensive record that we found of constitutionally based discrimination against people with disabilities--discrimination that was pervasive in our society, the institutionalization of people, the blatant discrimination in jobs, in transportation, in public places against people with disabilities. And yet he said it is difficult to show.

Well, we showed it. But evidently that was not enough for Mr. Sutton because he has his own narrow view, his own personal view of what the limits of Congress are in addressing these wrongs.

People with disabilities, as I said, locked away in institutions for years; people with mental disabilities subjected to involuntary sterilization because, in the words of the late Justice Holmes: ``Three generations of imbeciles are enough.'' Persons with severe hearing loss, like my brother Frank, labeled deaf and dumb. They sent my brother away to a school, segregated him away from his friends, from his family, from his community, to go to the Iowa State School, as they said in those days, for the deaf and dumb. What does that do to people, simply because they are deaf, being called dumb? For too many years, those who were blind were forced to sell pencils on a street corner to earn a living.

When the day is done, and we all go home, Jeffrey Sutton--no matter how likable he is, no matter how good his qualifications are--has an extreme, limited view of our congressional role to legislate in this important area. From his arguments before the Supreme Court, he seems to believe that each State does its job to protect the constitutional rights of persons with disabilities as the State sees fit.

After what I saw and heard with my own ears, and during the crafting of the ADA over all those years and all those hearings, I cannot fathom anyone reaching that conclusion.

Pat Garrett--I will have more to say about the Garrett case--Pat Garrett, from Alabama, working in a job for the State, came down with breast cancer. She had to go have an operation. She had chemotherapy. She recovered. She went back to work. She was told by one of her fellow coworkers that her boss didn't like sick people. Her boss fired her.

So she brought a case under the Americans with Disabilities Act. She won. She won her case in the lower court. Then the State of Alabama hired Jeffrey Sutton to argue its case before the Supreme Court, and the Supreme Court found for Alabama by a 5-to-4 decision.

It seems to me that according to Jeffrey Sutton, that if Pat Garrett does not like the fact that the State of Alabama did not have a law that protected her rights as a disabled person, why, she can move to Nevada, maybe move to Minnesota, maybe move to Iowa. That is her right, that she can just move out of the State, maybe find some other place to live, where a State does have laws against discrimination against people with disabilities in their State institutions.

But is that what we have become in our country, a patchwork quilt? That is what we found in all these hearings

on the ADA, a patchwork. Yes, some States were good; some States had none--a patchwork quilt.

I do not believe that your civil rights ought to depend on your address. Your civil rights, under the Constitution of the United States, ought to depend on whether you are in this country and you are a citizen of the United States, not whether you live in Minnesota, Iowa, Nevada, or Alabama.

States rights--I don't know which seat the occupant of the chair from Minnesota holds, but it was that great Senator from Minnesota who, back in 1948, took on his own party--my party--the Democratic Party, in that great speech he gave at the convention and said: It is time to come out of the shadow of States rights and into the sunshine of civil rights. And that is when the Dixiecrat, Senator Strom Thurmond, left the party, because of what Hubert Humphrey said.

But Hubert Humphrey was right, it was time to come out of that shadow of States rights and recognize that civil rights inures to all of us as citizens of the United States and not just because I happen to live in one State or another.

But Jeffrey Sutton does not believe that; down deep inside he does not. And I say that only because of what he has said and what he has written, not just because of his representation of a client, but what he has said outside the courtroom.

All the lawyer code and duty talk does not tell the whole story. He has written articles, participated in radio talk shows, panel discussions, expressing his personal views, not his clients', but his own personal views. That kind of publicity is not required by his role as a lawyer advocating on behalf of his clients.

So based on his advocacy, based upon his own words, I am not convinced that a person with a disability, walking into Jeffrey Sutton's courtroom, can expect a fair shake from Mr. Sutton.

Again, as I said, I find him a likable individual, obviously very intelligent. But he means to undo with his position all we have done here to make sure that people with disabilities have their civil rights.

There are over 400 disability rights and civil rights groups in the United States opposing this nomination to the Sixth Circuit. I am hard pressed to know of any disability group that supports Mr. Sutton.

Again, this is nothing personal. People with disabilities understand how tenuous their hold on their civil rights is today. The Supreme Court has chipped away a little bit here, a little bit there on the Americans with Disabilities Act. There are still those in our country who believe we should not have had that law. Mr. Sutton, obviously, is one of those. He says it wasn't needed.

People with disabilities live every day wondering whether or not they will be treated fairly based not upon their disability but on their abilities: Will I be able to get a good education? Will I be able to be treated fairly and equitably in terms of employment? Will I be able to find some reasonable accommodation so I can do a job? Will I go into a place of business and be ignored because I look different, maybe I act differently?

That is what people with disabilities live with every day. They know their hold on this is tenuous. I can understand very deeply the concern that people with disabilities all over America have about this individual, the deep concern they have, because they see in Mr. Sutton the personification of all of the people in their lives who made life harder for them, people who had a view that was narrow, who said that somehow our National Government cannot do anything to secure their civil rights, they only have to look to the State.

I will have more to say about Mr. Sutton. I will close with this. On that National Public Radio broadcast I talked about, he also said:

I think it is a positive attribute of this system of

divided government that when 51 different sovereigns, 51

different legislatures 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.

That is his personal view. He was not representing anyone. This is Jeffrey Sutton talking:

I think it is a positive attribute of this system of

divided government that when 51 different sovereigns, 51

different legislatures tackle a difficult social problem,

they all arrive at different approaches. And the ultimate

idea and really transcendent purpose of federalism is to have

it compete for the best solution.

What happens when a State wins in these competitions? Do they get a prize? What happens to the people who are in the losing States? Are they just unlucky? What about Pat Garrett? Obviously, Alabama was not competing to have the best antidisability discrimination laws in the country.

I would be the first to say that one of the great things about our system of government is, it does allow for experimentation in different States. It allows different States to approach problems differently. Out of that we do get not a top-down, one-size-fits-all type of government. That is one of the beauties of our system. But when it comes to fundamental issues of fairness and justice and equity, when it comes to the basic, fundamental issues of civil rights, I say again, your civil rights as an American citizen should not depend on your address. It should not depend upon the shadow of States rights. It should depend upon the sunshine of being a U.S. citizen and having the Federal Government make sure that our civil rights are protected no matter where we are.

Again, if we want to have competition among States on education and transportation and all kinds of different things, that is fine. But on fundamental, basic civil rights, one law, one Constitution, one Bill of Rights that covers us all.

Mr. Sutton is going to be before us. He is not now, but I understand he will be as soon as we come back. I wanted to start the debate. Quite frankly, I don't think Mr. Sutton has received the kind of attention and the kind of discourse and debate in this body that a circuit judge of his stature deserves, at least one who has this background and one who by his statements invites this kind of controversy.

We have approved circuit court judges around here almost on voice vote, 98 to nothing, 96 to nothing. I have joined in that. The people were not only qualified, but they didn't raise these kinds of troubling questions about how they will deal with fundamental civil rights laws. But Jeffrey Sutton does. He raises those issues. He has done it on his own.

I will have more to say about his statements when we come back. I am hopeful--not in a vindictive sense or anything like that--that this Senate will disapprove of putting Mr. Sutton on the court, thereby sending a very loud and strong message to people with disabilities all over this country that we passed the Americans with Disabilities Act with our eyes wide open; that we knew what we were doing; that we assembled the data. We had all of the evidence we needed. We compiled the record, and we want to keep it as the law of the land--as the civil rights law of the United States.

It would be a powerful message because I can tell you this. If Jeffrey Sutton ascends to the Sixth Circuit Court of Appeals, Americans with disabilities all over this country will see the hands of the clock turning backward--back, back to the days of discrimination, back to those days when they were afraid to enter that door, or to demand their rights as an American citizen, as a human being. I believe it is going to cause people with disabilities to wonder whose side we are on.

Whose side are we really on? I hope we are on the side of civil rights.

I ask unanimous consent for fellow Julianne Carter to have the privilege of the floor for the duration of this debate and when we come back for debate on Jeffrey Sutton.

Mr. President. Today I am introducing legislation, the Assure Access to Mammography Act of 2003, on behalf of myself and my colleagues, Senators Snowe, Inouye, Graham of South Carolina, Murray, Corzine, Biden, Specter, Landrieu, Johnson, Lincoln, Hollings, Mikulski, Clinton, and Ms. Collins to ensure women have full and timely access to preventive breast cancer screenings. As you know, the earlier a woman is diagnosed with breast cancer, the earlier she can begin to receive treatment and the more likely she will survive.

Unfortunately, due to inadequate reimbursement rates for mammograms, women increasingly are having problems getting the mammograms they need. Across the nation, there have been reports of women waiting up to six months for an appointment for this simple procedure. While mammograms often cost up to $150 to administer, Medicare's reimbursement rate is currently set at about $82, barely over half the actual cost of the procedure. This disparity increasingly makes access a real problem, forcing many private centers to shut down and creating a shortage of providers willing to provide services significantly below cost.

The Assure Access to Mammography Act would reverse this growing and alarming trend by correcting the two primary causes of the problem. First, it would increase Medicare reimbursement to radiologists to a reasonable level to ensure health care providers are reimbursed fairly for mammography services. Second, the bill would increase the number of radiologists by increasing the Graduate Medical Education payments to provide for three additional radiologists in each teaching hospital. Finally, the Assure Access to Mammography Act would provide a MEDPAC study on the Medicare reimbursement structure for gender specific medical procedures so that Congress and CMS have the tools we need to make appropriate health policy decisions.

This is an issue that hits close to home for me. Both of my sisters died of breast cancer, at a time when mammograms were not readily available. While imperfect, mammograms are the best-known way to diagnose breast cancer at an early stage in order to reduce mortality. As our society ages, one million additional women each year are needing regular mammograms. The Assure Access to Mammography Act will provide the resources our health care system needs to guarantee all women access to the mammograms they need to ensure that breast cancer is detected early enough to apply appropriate treatments effectively. I look forward to working with my colleagues to pass this needed bipartisan legislation.

Mr. President. Today I am introducing legislation, the Assure Access to Mammography Act of 2003, on behalf of myself and my colleagues, Senators Snowe, Inouye, Graham of South Carolina, Murray, Corzine, Biden, Specter, Landrieu, Johnson, Lincoln, Hollings, Mikulski, Clinton, and Ms. Collins to ensure women have full and timely access to preventive breast cancer screenings. As you know, the earlier a woman is diagnosed with breast cancer, the earlier she can begin to receive treatment and the more likely she will survive.

Unfortunately, due to inadequate reimbursement rates for mammograms, women increasingly are having problems getting the mammograms they need. Across the nation, there have been reports of women waiting up to six months for an appointment for this simple procedure. While mammograms often cost up to $150 to administer, Medicare's reimbursement rate is currently set at about $82, barely over half the actual cost of the procedure. This disparity increasingly makes access a real problem, forcing many private centers to shut down and creating a shortage of providers willing to provide services significantly below cost.

The Assure Access to Mammography Act would reverse this growing and alarming trend by correcting the two primary causes of the problem. First, it would increase Medicare reimbursement to radiologists to a reasonable level to ensure health care providers are reimbursed fairly for mammography services. Second, the bill would increase the number of radiologists by increasing the Graduate Medical Education payments to provide for three additional radiologists in each teaching hospital. Finally, the Assure Access to Mammography Act would provide a MEDPAC study on the Medicare reimbursement structure for gender specific medical procedures so that Congress and CMS have the tools we need to make appropriate health policy decisions.

This is an issue that hits close to home for me. Both of my sisters died of breast cancer, at a time when mammograms were not readily available. While imperfect, mammograms are the best-known way to diagnose breast cancer at an early stage in order to reduce mortality. As our society ages, one million additional women each year are needing regular mammograms. The Assure Access to Mammography Act will provide the resources our health care system needs to guarantee all women access to the mammograms they need to ensure that breast cancer is detected early enough to apply appropriate treatments effectively. I look forward to working with my colleagues to pass this needed bipartisan legislation.

Mr. President, today I join my colleague from Mississippi, the Chairman of the Senate Committee on Agriculture, Nutrition, and Forestry, in support of this bill that would keep fresh fruits and vegetables going to over 100 schools throughout the Nation.

We hear a great deal about the importance of teaching our children good nutrition as well as about the epidemic of obesity and poor eating habits among American children. But for all the talk and concern, we do far too little about it.

Last year, I worked with my colleagues to take concrete steps to address these issues. Concerned about the fact that many children today have only minimal experiences with fresh fruits and vegetables, we created a pilot project that provides fresh fruits and vegetables to schools in Iowa, Indiana, Michigan, Ohio, and to schools on an Indian reservation at Zuni, NM.

Despite the fact that we know there are many positive benefits associated with the consumption of fresh fruits and vegetables, we still fail to do nearly enough to encourage their consumption through our Federal nutrition programs. We must do more to encourage their purchase in our schools and to promote their consumption on an individual level.

The reports that we are getting back from schools about this program are absolutely tremendous. Just last week my staff had a conference call with school administrators, parents, and students at Zuni, NM. They are almost ecstatic in their praise of the program. The children were excited to be able to try foods that they had never had a chance to eat before. Parents report that their kids are coming home to them and asking them to buy the same fruits and vegetables for the home that they eat at school. And school administrators report healthier diets, fewer discipline problems, and buy-in from the entire school community. Even the janitors love the program.

Dieticians and school officials in Iowa tell me that, because of the fruit and vegetable pilot, their work is more fulfilling now than ever before.

This is a program that we need to expand so that all schools are able to participate. As the Senate moves forward with the reauthorization of our child nutrition programs this year, I'll be looking at ways that we can do this and at ways that we can encourage healthier lifestyles for all of our children.

In the meantime, the bill that I am introducing today allows us to extend the current fruit and vegetable pilot for an additional year. Because of the short timeframe that we had to actually set up the fruit and vegetable pilot, many of the schools were not able to begin their participation in the program as quickly as they had hoped. As a result, many schools will have funds remaining at the end of the school year. They have told me, as has the Department of Agriculture, that they would like to use their carryover funds for an additional year. This bill simply extends the authorization of the Department of Agriculture to continue the program for another year.

This does not provide any new money. It simply allows the schools to carryover current funds into the 2003 school year. The Congressional Budget Office has indicated that there is no cost associated with this.

As evidenced by the concurrence of Senator Cochran, this is a non- partisan, non-controversial bill, and I urge my colleagues to work with me to see that this program is extended before its current authorization runs out on June 30 of this year.

Mr. President, on behalf of myself and Senators Murray, Kennedy, Mikulski, Durbin, Leahy, Akaka, Feingold and Boxer, I am introducing the Fair Pay Act.

April 15, tax day, is also Equal Pay Day. If you add what women made last year and so far this year, that would be the same amount men made in all of last year. In other words, it takes women 16 months to make what men make in 12.

There's been a lot of tax talk from Congress and the White House lately. We've got more than 1 million people out of work. And we've got millions of families struggling to make ends meet. The White House believes a new $750 billion tax cut for the rich is the solution.

I disagree. One way we can put more money in the pockets of working families--pay women what they're worth. Nearly 40 years after the Equal Pay Act became law, women are still paid only 76 cents for every dollar a man earns.

Working women at all income and education levels are affected by the wage gap. Last year, the GAO found that the pay gap continues to effect women in management and that, for these women, the pay gap has actually widened since 1995.

Regardless of education, the impact is the same. These women work as hard as men, but have less money to pay the bills, to put food on the table, or to save for their retirement or their child's education. That is simply wrong and it must end. We must close the wage gap once and for all.

First, we need to do a better job by enforcing and strengthening the penalties for the law that demands equal pay for equal work. That's why I support the Paycheck Fairness Act, sponsored by Senator Daschle and Congresswoman DeLauro.

Another part of discrimination against women in the work place is the historic pattern of undervaluing and underpaying so-called ``women's jobs.''

Millions of women today working in female-dominated jobs--as social workers, teachers, child care workers and nurses--are ``equivalent'' in skills, effort, responsibility and working conditions to similar jobs dominated by men. But these women aren't paid the same as men.

That's what the Fair Pay Act--that Congresswoman Norton and I are reintroducing today--would address. Unfairly low pay in jobs dominated by women is un-American, it is discriminatory and our bill would make it illegal.

20 States have ``fair pay'' laws and policies in place for their employees, including my State of Iowa. And Iowa had a Republican legislature and Governor when this bill passed into law. So, ending wage discrimination against women in a nonpartisan issue.

Some say we don't need any more laws; market forces will take care of the wage gap. If we had relied on market forces we would have never passed the Equal Pay Act, the Civil Rights Act, the Family Medical Leave Act or the Americans with Disabilities Act.

I first introduced the Fair Pay Act in 1996 after the Iowa Business and Professional Women alerted me to this problem. And as long as I'm in the U.S. Senate I will continue to fight to pass this important legislation so we can end wage discrimination against women once and for all.

Mr. President, on behalf of myself and Senators Murray, Kennedy, Mikulski, Durbin, Leahy, Akaka, Feingold and Boxer, I am introducing the Fair Pay Act.

April 15, tax day, is also Equal Pay Day. If you add what women made last year and so far this year, that would be the same amount men made in all of last year. In other words, it takes women 16 months to make what men make in 12.

There's been a lot of tax talk from Congress and the White House lately. We've got more than 1 million people out of work. And we've got millions of families struggling to make ends meet. The White House believes a new $750 billion tax cut for the rich is the solution.

I disagree. One way we can put more money in the pockets of working families--pay women what they're worth. Nearly 40 years after the Equal Pay Act became law, women are still paid only 76 cents for every dollar a man earns.

Working women at all income and education levels are affected by the wage gap. Last year, the GAO found that the pay gap continues to effect women in management and that, for these women, the pay gap has actually widened since 1995.

Regardless of education, the impact is the same. These women work as hard as men, but have less money to pay the bills, to put food on the table, or to save for their retirement or their child's education. That is simply wrong and it must end. We must close the wage gap once and for all.

First, we need to do a better job by enforcing and strengthening the penalties for the law that demands equal pay for equal work. That's why I support the Paycheck Fairness Act, sponsored by Senator Daschle and Congresswoman DeLauro.

Another part of discrimination against women in the work place is the historic pattern of undervaluing and underpaying so-called ``women's jobs.''

Millions of women today working in female-dominated jobs--as social workers, teachers, child care workers and nurses--are ``equivalent'' in skills, effort, responsibility and working conditions to similar jobs dominated by men. But these women aren't paid the same as men.

That's what the Fair Pay Act--that Congresswoman Norton and I are reintroducing today--would address. Unfairly low pay in jobs dominated by women is un-American, it is discriminatory and our bill would make it illegal.

20 States have ``fair pay'' laws and policies in place for their employees, including my State of Iowa. And Iowa had a Republican legislature and Governor when this bill passed into law. So, ending wage discrimination against women in a nonpartisan issue.

Some say we don't need any more laws; market forces will take care of the wage gap. If we had relied on market forces we would have never passed the Equal Pay Act, the Civil Rights Act, the Family Medical Leave Act or the Americans with Disabilities Act.

I first introduced the Fair Pay Act in 1996 after the Iowa Business and Professional Women alerted me to this problem. And as long as I'm in the U.S. Senate I will continue to fight to pass this important legislation so we can end wage discrimination against women once and for all.

Mr. President, in recognition of the 50th anniversary of the Foreign Agriculture Service of the U.S. Department of Agriculture on March 10, Senator Cochran and I are today submitting Senate resolution to honor that agency's many achievements over the past half century.

During the 83d Congress, President Eisenhower recognized that the productive capacity of the U.S. agricultural sector was outstripping the food and feed needs of our domestic economy. In order to assist American farmers and exporters in identifying, capturing, and maintaining overseas markets for our food and fiber, and thus boost the sector's earnings, Secretary Ezra Taft Benson established the Foreign Agriculture Service, FAS, by memorandum on March 10, 1953. The next year with the passage of the Agriculture Act of 1954, P.L. 83-690, agricultural attaches were transferred from the State Department to the new agency.

The mission of FAS is to serve U.S. agriculture's international interest by expanding export opportunities for U.S. agricultural, aquaculture, and forest products and promoting world food security. Since its inception, the agency has assisted in expanding U.S. agricultural exports from less than $3 billion in 1953 to projected exports valued at $57 billion for 2003, in nominal dollars.

In addition to providing in-country services and market analysis for the key importing countries in the agricultural attache corps, FAS, through

headquarters staff, conducts trade and food aid programs and works with staff from other USDA agencies to analyze world market trends. While the agency is not solely responsible for our large gains in exports over the past five decades, no one could argue it has not provided a crucial assistance in that effort. I salute the work of past and present FAS employees and look forward to their contributions in the future.

Mr. President, imagine a world with cars that spew out no smog, no toxic emissions, and no greenhouse gases. The only thing that would come out of the tailpipe would be water pure enough to drink.

Imagine a world in which we don't import a drop of Mideast oil, because clean, domestic, renewable energy sources meet all of our needs.

Imagine a world in which we don't need to worry about a terrorist strike on our large nuclear power plants, or a storm causing a blackout over a large region, because we get all of our electricity from small distributed generators on farms and in buildings throughout the country.

Sound too good to be true? The technology to do this, using hydrogen energy and fuel cells, is out of the labs and being tested on our streets and in our buildings today. For those of us who have been working for many years to bring this vision into reality, that is very exciting. But we still need a major effort to bring the costs down and commercialize the technology.

And there is remarkable bipartisan agreement on the need for government action. A couple years ago we were fighting for scraps of funding. Now the President has proposed $1.7 billion over 5 years toward getting hydrogen fuel cell vehicles on the road. The Senate energy bill last year, before it died in conference, included tax incentives for stationary fuel cells, fuel cell vehicles, hydrogen vehicles, hydrogen fueling infrastructure, and hydrogen fuel.

But we are still too timid to bring about the fundamental shift to the hydrogen economy. The Department of Energy is working toward a go- no go decision by the car companies by 2015, and mass production of vehicles by 2020. But the car companies themselves have been talking about commercial vehicles by 2010.

We need a bolder, more comprehensive plan. That's why I am introducing the Hydrogen and Fuel Cell Energy Act of 2003. This bill addresses three critical requirements to bringing hydrogen energy and fuel cells into commerce, and start gaining their environmental and security benefits, as soon as technically feasible.

First we need a technological push. We need better fuel cell stack components to reduce costs and improve longevity. We need lighter, more efficient ways to store hydrogen on-board vehicles. In the long term, we need cheaper ways of converting renewable energy to hydrogen fuel.

This bill reauthorizes the Matsunaga Act, which established the Federal hydrogen energy research program. It updates the language and sets clearer priorities. It expands the authorization to cover fuel cell research and development as well, to reflect the technical and bureaucratic reality that research on fuel cells--the most efficient, flexible, and cleanest way to use hydrogen energy--has become inextricably linked to research on hydrogen energy. It supports work on domestic and international codes and standards, to work through a major regulatory barrier to working with combustible hydrogen and to making all the infrastructure pieces fit together. It includes a specific mandate to do public education on hydrogen and fuel cells and to do university training in critical skills needed in the industry. And it increases funding levels over the next few years to accelerate progress in pre-commercial technologies.

Second, and perhaps most important right now, we need a near-term demand pull. As long as the fuel cells and hydrogen appliances are made by hand, they will remain very expensive. But it's also expensive to build the factories to build them more cheaply. We need support to get industry over that initial cost hump.

The first step is large demonstration programs that serve a dual purpose: they provide a realistic test of how the laboratory technologies work in the real world, and they provide funding for pre- commercial prototypes of the technologies, including starting to build a hydrogen fueling infrastructure.

The Hydrogen and Fuel Cell Energy Act authorizes several new, large demonstration programs:

The main demostration program would provide over $1 billion over 7 years for demonstrations of the full range of fuel cell applications and associated hydrogen infrastructure. These demonstrations would include fleets of fuel cell passenger vehicles, fuel cell buses and farm vehicles, stationary fuel cells in houses and commercial buildings, and portable fuel cells such as auxiliary power units in trucks.

A second, closely related program, would provide hydrogen fueling infrastructure over major transportation corridors and entire regions, and then demonstrate hydrogen-powered vehicles that are not tethered to a single pump. Early demonstrations, at least, would likely use vehicles that burn hydrogen; these are similar to gas-electric hybrids that you can buy today, but run on hydrogen rather than gasoline. These vehicles provide most of the benefits of fuel cell vehicles at a fraction of the current cost. They are not as good as fuel cell vehicles in the long term, they are less efficient, less flexible, and produce a little pollution, but would move us a long way toward the goal and would provide a good large-scale test of a hydrogen fueling system.

A third program would demonstrate hydrogen and fuel cell technologies in foreign countries. Hydrogen energy could have an early application in places where a competing fossil fuel infrastructure is not already well-developed. And assisting this application is in our national interest in order to promote global development without causing global warming and other harmful environmental effects, and to increase the global market for American hydrogen and fuel cell technologies.

The last program would focus on emerging technologies for production of hydrogen from renewable resources. Two approaches show particular promise for clean, efficient production of hydrogen at this time. Biorefineries make hydrogen and other products from biomass. And in ``electrofarming'' the hydrogen is produced and used on the same farm. The hydrogen might be made by growing and reforming biomass, from wind energy, or from farm waste; it could be used in farm vehicles and equipment and for heat and electricity in farm buildings.

All these demonstration programs would be conducted using competitive merit review of funding proposals from a wide variety of companies and organizations, and they would require cost-sharing from awardees.

Third, we need to show there will be a market for commercial hydrogen and fuel cell technologies in the long term. The Federal Government can do this by buying early commercial products and by providing incentives to others to do so, in recognition of their public benefits.

The bill includes Federal purchase requirements for both zero emission vehicles and stationary fuel cells. The vehicle requirements are similar to Federal fleet requirements for purchase of alternative fuel vehicles. They would require zero emission vehicles, most likely hydrogen fuel cell vehicles, to make up an increasing percentage of Federal fleet vehicle purchases up to 75 percent. Alternative fuel vehicles with very low emissions, such as hydrogen hybrid vehicles, would get partial credit. For stationary fuel cells, the bill

would require modifying energy efficiency regulations for Federal buildings to presume use of fuel cells to power new Federal buildings and to encourage their use in older buildings.

The bill also provides a broad array of tax incentives for stationary and portable fuel cells, hydrogen and fuel cell vehicles, hydrogen fueling infrastructure, and hydrogen fuel. These incentives are similar to those that have been proposed in the CLEAR Act on alternative fuel vehicles, in previous bills on stationary fuel cells, and in last year's energy bill. However, this bill makes some important changes. It makes all the tax credits tradable so that government agencies and non- profit organizations can use them as well as consumers and private companies. It increases the credit for hydrogen fueling infrastructure to recognize the cost of making the hydrogen on-site, not just pumping it. It adds an additional incentive for hydrogen from renewable resources to encourage a transition to a sustainable hydrogen system. And most importantly, it extends the tax credits so the industry will know the incentives will be there when they are needed--when real commercial products are available.

Finally, the bill ensures effective coordination and oversight of the expanded Federal hydrogen and fuel cell energy activities, with a new interagency task force to coordinate activities, a revamped technical advisory panel, and periodic outside review by the National Academies.

These measures will require a significant Federal investment in our energy future. But with these measures we can use hydrogen and fuel cell technologies to turn into reality a vision of cars that don't pollute, of power that won't go out, and of feeling less dependent on an area of the world where we are fighting the second war in recent years. It is time to take these steps now.

Mr. President, in the early 1990s, a large number of U.S. companies began a process of switching their defined benefit pension plans to cash balance plans. Many of the employees whose pension plans were to be altered drastically weren't told and didn't notice that they were essentially going to be working for years without earning any more benefits. Their not knowing was viewed as a key benefit by management. And the retirees were furious.

As Keith Williams with Watson Wyatt Worldwide and Amy Viener with William Mercer, two firms that put together these plans in 1998 said at an Actuaries conference:

Mr. Williams: I've been involved in cash balance plans five

or six years down the road and what I have found is that

while employees understand it, it is not until they are

actually ready to retire that they understand how little they

are actually getting.

Ms. Viener: Right, but they're happy while they're

employed.

One of the most abusive practices in cash balance conversions is known as ``wear away.'' Older workers see nothing added to their pensions as the value of the pensions is frozen, often for many years, until it reaches the lower value of the new pension plan. At the same time younger workers are getting their pensions increased. In my view, this is clearly age discrimination and bad pension policy. In 1999, I introduced a bill to make it illegal for corporations wear away the benefits of older workers during conversions to cash balance plans. I offered my bill as an amendment. Forty-eight Senators, including 3 Republicans, voted to waive the budget point of order so we could consider this amendment. We did not have enough votes then, but I believe the tide is turning.

After that vote, more and more stories came out about how many workers were losing their pensions. In September of 1999, the Secretary of the Treasury put a moratorium on conversions from defined benefit plans to cash balance plans. That moratorium has been in effect now for over three years. In April of 2000, I offered a sense-of-the-Senate resolution to stop this practice, and it passed the Senate unanimously.

But last December, the Treasury decided to end that moratorium. The Department proposed a regulation that will allow hundreds of companies, many employing thousands of workers each to go forward with conversions that will allow for the wear-away of the current benefits of people across the country. This plan is breathtaking in its audacity. In a time when people have lost their life savings to market downturns and corporate duplicity, they are looking at changing the rules so that employers can once again bolster their bottom line by shifting funds from the pensions they promised their workers. I will not stand by and let it happen.

There are over 800 age discrimination complaints currently pending before the EEOC based on cash balance conversions. How many more will there be if we again start allowing companies to make these abusive conversions?

I want to make it very clear: I am not opposed to all cash balance plans. Some cash balance plans can be very good. What I oppose is the unilateral decision of a company being able to change their plans and stop contributing to older employees' pensions while benefits are given to newer employees.

That is what this issue is all about. It is fairness. It is equity. I know discussion of pension law can become very convoluted. But in essence, what some of these companies have been doing to these workers is nothing less than sheer thievery. They are able to save millions, in some cases hundreds of millions of dollars, by converting their plans, robbing workers who have been loyal and hard working, robbing them of their rightful claims on future benefits, It is not right. It is not fair.

There is one thing that has distinguished the American workplace from others around the world. We have valued loyalty. At least we used to. That is one of the reasons pension plans exist--the longer you work somewhere, the more you earn in your pension program. Obviously, the longer you work someplace, the better you do your job, the more you learn about it, the more productive you are. We should value that loyalty.

If companies are able to wear away the benefits of the longest serving workers, what kind of a signal does that send to the workers? It tells workers they are fools if they are loyal because if you put in 20 to 25 years, the boss can just change the rules of the game, and break their promise. It tells younger workers that it would be crazy to work for a company for a long time, that it's best to hedge your bets and move on as soon as it is convenient.

This destroys the kind of work ethic we have come to value and that we know built this country. But some of these cash balance conversions counter all of that. Her is an analogy. Imagine I hire someone for five years with a promise of a $50,000 bonus at the end of five years of service. At the end of three years, however, I renege on the $50,000 bonus. But the employee has three years invested. Had they known that the deal was going to be off, perhaps they would not have gone to work for me. They could have gone to work someplace else for a total higher compensation package. Is that the way we want to treat workers in this country, where the employer has all the cards and employees have none, and employers can make whatever deal they want, but can change the rules at any time?

That is why I am introducing this legislation. It is simple. It says that you have to give older, longer serving employees a choice, at retirement, when their pension plan is converted to a cash balance plan to get the benefits earned in the old plan instead. It also says that employers must start counting the new cash balance benefits where the old defined benefit plan left off, instead of starting the cash balance

plan at a lower level than an employee had already earned.

In the March 3, 2002 issue of Fortune magazine, Janice Revell said of the possible impending flood of cash balances conversions: ``Brace yourself for a very un-fairy-tale ending to this tory. Millions of American workers are sure to see a large slice of their retirement income go up in smoke. It may not happen right away, but the groundwork is being laid right now.''

I urge my colleagues in the Senate to join me in cosponsoring this measure, so that we can stop the flood before it starts.

Mr. President, imagine a world with cars that spew out no smog, no toxic emissions, and no greenhouse gases. The only thing that would come out of the tailpipe would be water pure enough to drink.

Imagine a world in which we don't import a drop of Mideast oil, because clean, domestic, renewable energy sources meet all of our needs.

Imagine a world in which we don't need to worry about a terrorist strike on our large nuclear power plants, or a storm causing a blackout over a large region, because we get all of our electricity from small distributed generators on farms and in buildings throughout the country.

Sound too good to be true? The technology to do this, using hydrogen energy and fuel cells, is out of the labs and being tested on our streets and in our buildings today. For those of us who have been working for many years to bring this vision into reality, that is very exciting. But we still need a major effort to bring the costs down and commercialize the technology.

And there is remarkable bipartisan agreement on the need for government action. A couple years ago we were fighting for scraps of funding. Now the President has proposed $1.7 billion over 5 years toward getting hydrogen fuel cell vehicles on the road. The Senate energy bill last year, before it died in conference, included tax incentives for stationary fuel cells, fuel cell vehicles, hydrogen vehicles, hydrogen fueling infrastructure, and hydrogen fuel.

But we are still too timid to bring about the fundamental shift to the hydrogen economy. The Department of Energy is working toward a go- no go decision by the car companies by 2015, and mass production of vehicles by 2020. But the car companies themselves have been talking about commercial vehicles by 2010.

We need a bolder, more comprehensive plan. That's why I am introducing the Hydrogen and Fuel Cell Energy Act of 2003. This bill addresses three critical requirements to bringing hydrogen energy and fuel cells into commerce, and start gaining their environmental and security benefits, as soon as technically feasible.

First we need a technological push. We need better fuel cell stack components to reduce costs and improve longevity. We need lighter, more efficient ways to store hydrogen on-board vehicles. In the long term, we need cheaper ways of converting renewable energy to hydrogen fuel.

This bill reauthorizes the Matsunaga Act, which established the Federal hydrogen energy research program. It updates the language and sets clearer priorities. It expands the authorization to cover fuel cell research and development as well, to reflect the technical and bureaucratic reality that research on fuel cells--the most efficient, flexible, and cleanest way to use hydrogen energy--has become inextricably linked to research on hydrogen energy. It supports work on domestic and international codes and standards, to work through a major regulatory barrier to working with combustible hydrogen and to making all the infrastructure pieces fit together. It includes a specific mandate to do public education on hydrogen and fuel cells and to do university training in critical skills needed in the industry. And it increases funding levels over the next few years to accelerate progress in pre-commercial technologies.

Second, and perhaps most important right now, we need a near-term demand pull. As long as the fuel cells and hydrogen appliances are made by hand, they will remain very expensive. But it's also expensive to build the factories to build them more cheaply. We need support to get industry over that initial cost hump.

The first step is large demonstration programs that serve a dual purpose: they provide a realistic test of how the laboratory technologies work in the real world, and they provide funding for pre- commercial prototypes of the technologies, including starting to build a hydrogen fueling infrastructure.

The Hydrogen and Fuel Cell Energy Act authorizes several new, large demonstration programs:

The main demostration program would provide over $1 billion over 7 years for demonstrations of the full range of fuel cell applications and associated hydrogen infrastructure. These demonstrations would include fleets of fuel cell passenger vehicles, fuel cell buses and farm vehicles, stationary fuel cells in houses and commercial buildings, and portable fuel cells such as auxiliary power units in trucks.

A second, closely related program, would provide hydrogen fueling infrastructure over major transportation corridors and entire regions, and then demonstrate hydrogen-powered vehicles that are not tethered to a single pump. Early demonstrations, at least, would likely use vehicles that burn hydrogen; these are similar to gas-electric hybrids that you can buy today, but run on hydrogen rather than gasoline. These vehicles provide most of the benefits of fuel cell vehicles at a fraction of the current cost. They are not as good as fuel cell vehicles in the long term, they are less efficient, less flexible, and produce a little pollution, but would move us a long way toward the goal and would provide a good large-scale test of a hydrogen fueling system.

A third program would demonstrate hydrogen and fuel cell technologies in foreign countries. Hydrogen energy could have an early application in places where a competing fossil fuel infrastructure is not already well-developed. And assisting this application is in our national interest in order to promote global development without causing global warming and other harmful environmental effects, and to increase the global market for American hydrogen and fuel cell technologies.

The last program would focus on emerging technologies for production of hydrogen from renewable resources. Two approaches show particular promise for clean, efficient production of hydrogen at this time. Biorefineries make hydrogen and other products from biomass. And in ``electrofarming'' the hydrogen is produced and used on the same farm. The hydrogen might be made by growing and reforming biomass, from wind energy, or from farm waste; it could be used in farm vehicles and equipment and for heat and electricity in farm buildings.

All these demonstration programs would be conducted using competitive merit review of funding proposals from a wide variety of companies and organizations, and they would require cost-sharing from awardees.

Third, we need to show there will be a market for commercial hydrogen and fuel cell technologies in the long term. The Federal Government can do this by buying early commercial products and by providing incentives to others to do so, in recognition of their public benefits.

The bill includes Federal purchase requirements for both zero emission vehicles and stationary fuel cells. The vehicle requirements are similar to Federal fleet requirements for purchase of alternative fuel vehicles. They would require zero emission vehicles, most likely hydrogen fuel cell vehicles, to make up an increasing percentage of Federal fleet vehicle purchases up to 75 percent. Alternative fuel vehicles with very low emissions, such as hydrogen hybrid vehicles, would get partial credit. For stationary fuel cells, the bill

would require modifying energy efficiency regulations for Federal buildings to presume use of fuel cells to power new Federal buildings and to encourage their use in older buildings.

The bill also provides a broad array of tax incentives for stationary and portable fuel cells, hydrogen and fuel cell vehicles, hydrogen fueling infrastructure, and hydrogen fuel. These incentives are similar to those that have been proposed in the CLEAR Act on alternative fuel vehicles, in previous bills on stationary fuel cells, and in last year's energy bill. However, this bill makes some important changes. It makes all the tax credits tradable so that government agencies and non- profit organizations can use them as well as consumers and private companies. It increases the credit for hydrogen fueling infrastructure to recognize the cost of making the hydrogen on-site, not just pumping it. It adds an additional incentive for hydrogen from renewable resources to encourage a transition to a sustainable hydrogen system. And most importantly, it extends the tax credits so the industry will know the incentives will be there when they are needed--when real commercial products are available.

Finally, the bill ensures effective coordination and oversight of the expanded Federal hydrogen and fuel cell energy activities, with a new interagency task force to coordinate activities, a revamped technical advisory panel, and periodic outside review by the National Academies.

These measures will require a significant Federal investment in our energy future. But with these measures we can use hydrogen and fuel cell technologies to turn into reality a vision of cars that don't pollute, of power that won't go out, and of feeling less dependent on an area of the world where we are fighting the second war in recent years. It is time to take these steps now.

Mr. President, in the early 1990s, a large number of U.S. companies began a process of switching their defined benefit pension plans to cash balance plans. Many of the employees whose pension plans were to be altered drastically weren't told and didn't notice that they were essentially going to be working for years without earning any more benefits. Their not knowing was viewed as a key benefit by management. And the retirees were furious.

As Keith Williams with Watson Wyatt Worldwide and Amy Viener with William Mercer, two firms that put together these plans in 1998 said at an Actuaries conference:

Mr. Williams: I've been involved in cash balance plans five

or six years down the road and what I have found is that

while employees understand it, it is not until they are

actually ready to retire that they understand how little they

are actually getting.

Ms. Viener: Right, but they're happy while they're

employed.

One of the most abusive practices in cash balance conversions is known as ``wear away.'' Older workers see nothing added to their pensions as the value of the pensions is frozen, often for many years, until it reaches the lower value of the new pension plan. At the same time younger workers are getting their pensions increased. In my view, this is clearly age discrimination and bad pension policy. In 1999, I introduced a bill to make it illegal for corporations wear away the benefits of older workers during conversions to cash balance plans. I offered my bill as an amendment. Forty-eight Senators, including 3 Republicans, voted to waive the budget point of order so we could consider this amendment. We did not have enough votes then, but I believe the tide is turning.

After that vote, more and more stories came out about how many workers were losing their pensions. In September of 1999, the Secretary of the Treasury put a moratorium on conversions from defined benefit plans to cash balance plans. That moratorium has been in effect now for over three years. In April of 2000, I offered a sense-of-the-Senate resolution to stop this practice, and it passed the Senate unanimously.

But last December, the Treasury decided to end that moratorium. The Department proposed a regulation that will allow hundreds of companies, many employing thousands of workers each to go forward with conversions that will allow for the wear-away of the current benefits of people across the country. This plan is breathtaking in its audacity. In a time when people have lost their life savings to market downturns and corporate duplicity, they are looking at changing the rules so that employers can once again bolster their bottom line by shifting funds from the pensions they promised their workers. I will not stand by and let it happen.

There are over 800 age discrimination complaints currently pending before the EEOC based on cash balance conversions. How many more will there be if we again start allowing companies to make these abusive conversions?

I want to make it very clear: I am not opposed to all cash balance plans. Some cash balance plans can be very good. What I oppose is the unilateral decision of a company being able to change their plans and stop contributing to older employees' pensions while benefits are given to newer employees.

That is what this issue is all about. It is fairness. It is equity. I know discussion of pension law can become very convoluted. But in essence, what some of these companies have been doing to these workers is nothing less than sheer thievery. They are able to save millions, in some cases hundreds of millions of dollars, by converting their plans, robbing workers who have been loyal and hard working, robbing them of their rightful claims on future benefits, It is not right. It is not fair.

There is one thing that has distinguished the American workplace from others around the world. We have valued loyalty. At least we used to. That is one of the reasons pension plans exist--the longer you work somewhere, the more you earn in your pension program. Obviously, the longer you work someplace, the better you do your job, the more you learn about it, the more productive you are. We should value that loyalty.

If companies are able to wear away the benefits of the longest serving workers, what kind of a signal does that send to the workers? It tells workers they are fools if they are loyal because if you put in 20 to 25 years, the boss can just change the rules of the game, and break their promise. It tells younger workers that it would be crazy to work for a company for a long time, that it's best to hedge your bets and move on as soon as it is convenient.

This destroys the kind of work ethic we have come to value and that we know built this country. But some of these cash balance conversions counter all of that. Her is an analogy. Imagine I hire someone for five years with a promise of a $50,000 bonus at the end of five years of service. At the end of three years, however, I renege on the $50,000 bonus. But the employee has three years invested. Had they known that the deal was going to be off, perhaps they would not have gone to work for me. They could have gone to work someplace else for a total higher compensation package. Is that the way we want to treat workers in this country, where the employer has all the cards and employees have none, and employers can make whatever deal they want, but can change the rules at any time?

That is why I am introducing this legislation. It is simple. It says that you have to give older, longer serving employees a choice, at retirement, when their pension plan is converted to a cash balance plan to get the benefits earned in the old plan instead. It also says that employers must start counting the new cash balance benefits where the old defined benefit plan left off, instead of starting the cash balance

plan at a lower level than an employee had already earned.

In the March 3, 2002 issue of Fortune magazine, Janice Revell said of the possible impending flood of cash balances conversions: ``Brace yourself for a very un-fairy-tale ending to this tory. Millions of American workers are sure to see a large slice of their retirement income go up in smoke. It may not happen right away, but the groundwork is being laid right now.''

I urge my colleagues in the Senate to join me in cosponsoring this measure, so that we can stop the flood before it starts.

I suggest the absence of a quorum.

I ask unanimous consent that the order for the quorum call be dispensed with.

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

Madam President, I was not in the Chamber prior to the last vote, and there was an objection to having an extra minute so I could make some comments on the vote just held.

I thank the Senators for rejecting the McCain amendment for a number of reasons, but most importantly because the biggest item in that proposed amendment was funding to begin to complete the National Animal Disease Laboratory located in Ames, IA. I point out that this National Animal Disease Laboratory is fully authorized, specifically authorized. It has been peer reviewed. The USDA developed all the lands, and it is being built on an expedited basis to get it completed as soon as possible. It is a national animal disease laboratory in Ames. It is not an Ames lab, it is not an Iowa lab. Think about it like NIH. The National Institutes of Health is located in Maryland, but it is not a Maryland facility. It is a national facility. You can look at it like the Centers for Disease Control and Prevention in Atlanta, GA. That is not a Georgia facility; it is a national facility that just happens to be located in Atlanta. The same is true of the National Animal Disease Laboratory. It is a national laboratory that is located in Iowa.

I think in speaking of the Centers for Disease Control, we could also think of the National Animal Disease Lab as sort of the animal counterpart to the Centers for Disease Control and Prevention. Just as the Centers for Disease Control and Prevention is there nationally to help prevent or stop any kind of an infectious outbreak that might occur among humans, whether it is anthrax or smallpox or SARS or whatever it is, the job of the CDC is to get in there, contain it, stop it from infecting more people. The National Animal Disease Laboratory has the same function for animals. It is there to prevent, to stop infectious outbreaks among animals, infectious outbreaks that could devastate entire herds or entire populations of animals in this country, as we saw what happened with the mad cow disease in Great Britain. The National Animal Disease Lab would be charged with the responsibility, if there is any kind of bioterrorist outbreak or you had an animal infectious disease that could be transmitted to humans, the National Animal Disease Lab would be there to stop

it, contain it, and keep it from spreading.

That is why it is so important at this time to make sure we complete the National Animal Disease Lab as soon as possible.

I thank my colleagues on both sides of the aisle for their support in defeating the McCain amendment that would have drastically cut back on our ability to get the National Animal Disease Lab completed as expeditiously as possible.

I yield the floor and suggest the absence of a quorum.

I object.