Floor Statements

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

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

Mr. President, I ask unanimous consent that Teresa Danso- Danquah, Emily Flores, and Charles Hayes of my staff be granted floor privileges for the duration of today's session.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I have high hopes that the Senate will soon vote to enact the Drug Quality and Security Act, the so-called compounding and trace and track bill. This legislation helps ensure the safety of compounded drug products. It also secures the pharmaceutical supply chain.

I am pleased to report that it is the product of excellent bipartisan collaboration on the HELP Committee, where I worked very closely with our ranking member, my good friend Senator Lamar Alexander. It also reflects productive conversations with our colleagues in the House, including Chairman Upton and ranking member Waxman of the House Energy and Commerce Committee.

The House passed this bill on September 28. Now it is our turn to do our part. Title I of the bill addresses drug compounding. This is basically what happened here just over a year ago, when we were shocked to learn one of the worst public health crises that we have experienced in recent years was a meningitis outbreak that claimed the lives of 64 Americans and sickened 651 people in 20 States.

You can see the hardest hit were the home State of Senator Alexander, 153; Indiana, 93; Michigan, 264; Virginia 54, New Jersey, 51; Florida 25. Twenty States. A lot of people got really sick. I will be talking in a moment about those that still linger today.

What this outbreak did is it brought attention to the legal and regulatory gaps that allowed owners and managers at the New England Compounding Center to disregard basic procedures to ensure that the products they were manufacturing were sterile and safe.

This gross negligence had heart-breaking consequences for families nationwide, patients that were sick--patients such as Karina Baxter, whose

three adult children--Anita, Andrew, and Brian--lost their mother, and whose community lost a dedicated math teacher and tutor when she died of this meningitis outbreak at age 56.

Dawn Elliot, from Indiana, who used to scuba dive in her free time is now in unrelenting pain and has had to give up her job and deplete her savings.

Evelyn Bates, from Michigan, who was diagnosed last November, continues to struggle with tremendous pain every day, and her daughter had to quit her job to take care of her.

Dennis Blatt lives on the West Virginia-Ohio border with his wife and three young children. They have had to watch their father go from being an involved parent with a steady income to a man whose daily life feels, in his own words, like a ``slow, tortuous death.''

These meningitis outbreaks linger on. It also has a personal sensitivity to me. My older brother some years ago went deaf at a very young age because of meningitis. So it has lingering effects for a lifetime. That is what happened a little over a year ago. Although we know that it was not just an isolated incident, we know it was the biggest.

This chart is somewhat hard to read. It shows--going clear back to 2001--that we have had 4, 11, 64, 18. In other words, every year we have had some results we have noted from compounding that made people sick or cause deaths. So this has been ongoing for a long time.

It is just that what happened a little over a year ago in Tennessee and in these other States was that the dam broke. It is beyond all comprehension how many people got sick and died. So again, in response to these facts, beginning last year Senator Alexander and I convened the members of the HELP Committee, with assistance from Senator Franken and Senator Roberts, in an effort to identify the gaps in current policy, to solicit stakeholder views, to craft bipartisan legislation to better ensure the quality of compounded drug products.

We formally solicited three rounds of public comment. We held two public hearings before marking up the bill last May. Then over the summer we worked with our colleagues in the House to craft a package with strong bipartisan and bicameral support.

Now, the compounding provisions in this bill are an unqualified step forward from current law and practice. Basically, what this bill does in the compounding in title I--I will get to title II in a second--it distinguishes compounders engaged in traditional pharmacy practice from those making large volumes of compounded drugs without individual prescriptions.

So those who wish to remain in traditional compounding, that we might know where they are making small amounts for a certain type of illness or for a certain hospital--that sort of thing--they stay under the State boards of pharmacy as they are in current law.

An entity that neither stays within those limits of traditional pharmacy compounding nor registers as an outsourcing facility, if they do not do one of those two, then they are illegally selling unapproved drugs.

So that is what it does. It distinguishes. It defines the Food and Drug Administration's role in the oversight of these outsourcing facilities. They will be subject to FDA oversight in much the same way as traditional drug manufacturers are today.

FDA will know who these outsourcers are and what they are making, receive adverse event reports about compounded drugs, and have authority and resources to conduct risk-based inspections. In other words, the lines of responsibility are more clearly defined.

I give much credit to my friend from Tennessee for continuing to work on who is raising the flag, who has the flag, and who is responsible, because we found out there was a confusing mess for everybody about who was responsible and who was not. Thanks to Senator Alexander, we have cleared that up in this bill.

The bill offers providers and patients better information about compounded drugs, and it directs FDA to make a list of FDA-regulated outsourcer facilities that will be available on their Web site. It requires detailed labeling of compounded drugs and prohibits false and misleading advertising. Finally, it clarifies current Federal law regarding pharmacy compounding. It strikes the unconstitutional provisions that were in current law which led to a lot of this mess. We had different courts in different parts of the country interpreting it differently. So anyway, we resolve that patchwork and apply a uniform standard nationwide.

Now, that is title I. Title II of the bill is the track and trace provisions. Basically, this committee, again working in a bipartisan fashion a little over a year ago--as you may remember--brought an FDA user bill to the floor, passed and signed by the President. That cleared up the upstream part of where drugs come from; in other words, from the initial--from the plant derivation to the distilling of a product to everything--all the way up to the manufacturing. So now we have a much better regulation, a clearer picture of drugs that come from China and Indonesia and the U.S.--no matter where they come from, up to the manufacturing standpoint.

What we did not have at that time was a real understanding of or an agreement on how to control it from the manufacturer down to the consumer. So our committee got involved. Again, Senator Alexander was helping to lead the way with Senator Bennet and Senator Burr--almost 2 years working on this issue. So now we have this system. I think this chart shows it. As I said, everything up to the manufacturer we took care of in the FDA user bill.

Now this bill takes care of everything from the manufacturer down to the dispenser; that is, down to the consumer. So no matter where the drug goes, whether it goes directly from a manufacturer to a wholesaler to a dispenser, or whether it goes from here to a secondary wholesaler, another secondary wholesaler, and another secondary wholesaler, we found that in this country there is a patchwork, all kinds of different ways for a drug to get from a manufacturer down to a consumer.

So Senator Burr, Senator Bennet, Senator Alexander, and our staffs worked together to get this picture put together and to have a track and trace so that we can track the drug. No matter how it goes, we can track it and we can trace it. That will come into being over 10 years with electronic interoperable product tracing.

You might say that 10 years is a long time. I would point out that the House had 27 years. They agreed with us and made it 10 years. But that is for electronic interoperability. Beginning in January 2015, they will have to start paper tracing. So there will be paperwork, but it will take 10 years to get it all at a unit-level and all electronic and interoperable. You can understand, it takes a long time; different manufacturers and different suppliers have different systems. So these will be worked in over that period of time.

But we will have tracing after January, 2015. It establishes nationwide drug serial numbers and requires a pathway to unit-level tracing, as I said. It strengthens licensure requirements for wholesale distributors and third-party logistic providers. Again, there was a lot of hodgepodge of different kinds of licensures for wholesalers. We strengthened that. Then, as I said, we have a nationwide serial number established for that. That will come 4 years after the date of enactment. That will serialize drugs in a consistent way across the country.

Again, this is a bill that many might say is long overdue. Better late than never. I am sorry it took a terrible calamity such as the outbreak of meningitis to get us to really focus on this and move it. But it did. I think this is a good example of where the Congress can work in a bipartisan, bicameral fashion. I met Chairman Upton on the House side earlier this year to talk about a pathway of getting this done. In fact, what we are working on here is the House bill. The House passed it by unanimous consent. If you have been reading much about the House, you know they do not do a lot by unanimous consent. That just shows you how much work went into the bill and how it was done in a true bipartisan, bicameral fashion. So the House passed it by unanimous consent. Now we have it. I daresay, but for a Senator, one person, we probably would have passed it by unanimous consent here.

I have not found anyone who is opposed to this bill and who does not recognize that this is well supported. We

have a plethora of people and industry and consumer support: American Pharmacists Association, American Public Health Association, Biotechnology Industry Organization, plus a lot of the big pharmaceutical manufacturers and some of the small pharmaceutical manufacturers. Everyone recognizes that we need a better system to clearly outline who the traditional compounders are and who the outsourcers are, to give the FDA clear-cut authority over one segment, give the States the clear-cut authority over the other segment. As I said, if you do not fall into one of those two, you are outside the law. So it really does clear it up. This will ensure the quality and safety of the drugs on which patients rely.

We have a cloture vote later today. I am hopeful we will have a good strong vote on cloture on this bill. As I said, I honestly can say standing here I have not heard one Senator from either side of the aisle tell me or inform my staff that they were opposed to the bill as such.

I hope we have a strong vote. I am going to yield the floor and again pay my compliments and my highest respect to Senator Alexander for his leadership. His State was hit very hard. I know he is very sensitive to that. I know from my talks with him that it pained him a great deal to see so much suffering and death in his own State. Senator Alexander got on top of this and pulled us all together and basically said: We have to get it done.

So I thank Senator Alexander very much.

Mr. President, I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that Nathan Brown, a detailee on my staff, be granted floor privileges for the duration of the consideration of H.R. 3204, the Drug Quality and Security Act.

Mr. President, I ask unanimous consent that Tatiana Lowell-Campbell and Benjamin Friedman of my staff be granted floor privileges for the duration of today's session.

Mr. President, I ask unanimous consent that I be permitted to speak for up to 5 minutes in opposition to the Toomey amendment and that the Senator from Wisconsin also have 2 minutes to speak in opposition.

Mr. President, over the course of this debate, we have documented the tremendous business community support for this bill, including over 100 major companies. A key reason for that support is that ENDA is closely modeled on title VII of the civil rights law. Employers are familiar with the law, they understand how to comply with the law, and it provides certainty.

The many Fortune 500 companies that have employment nondiscrimination policies in place have modeled their policies on the nondiscrimination requirements of title VII. Unfortunately, by proposing an entirely new definition of businesses that would qualify for an exemption from the Employment Non-Discrimination Act, this amendment calls into question that very certainty. ENDA already exempts the same religious organizations that qualify for an exemption under title VII of the Civil Rights Act.

Under current law, the exemption includes not only houses of worship--churches, synagogues, and mosques--but also religious schools and religiously affiliated hospitals. The exemption in this bill passed the House of Representatives on a broad bipartisan basis, 402 to 25, in 2007.

In determining what organizations should qualify for religious exemption, most courts have also said that where the primary activity of the organization is commerce or profit, despite strongly held religious beliefs by the owners, the organization may not discriminate in hiring. That is what this amendment, I believe, seeks to change. This amendment would allow entities that are ``officially affiliated'' with a religious society to discriminate on the basis of sexual orientation and gender identity. This is a new term that is undefined in the text of the amendment and could lead to thousands of for-profit businesses being allowed to discriminate.

Some examples that have been suggested could qualify for the exemption could be a private employer whose only ``affiliation'' with a religious society is receiving a regular newsletter from that society or a private employer who sponsors a fundraiser for a religiously affiliated nonprofit or a private employer who provides goods and services to a religious organization. Again, this amendment would open the floodgates for all kinds of lawsuits. Courts would be inundated trying to figure out what does ``officially affiliated'' mean because there is no definition to that. The definitions we had before provide that kind of certainty to our business owners.

Our Nation's civil rights laws require those who participate in commercial activity must adhere to the broad principles of fairness and equal treatment. In potentially allowing secular commercial businesses to discriminate in hiring and other employment practices on the basis of sexual orientation or gender identity, this amendment threatens to gut the fundamental premise of ENDA that all workers should be treated equally and fairly.

So while I urge my colleagues to oppose this amendment, I wish to note that the sponsor of the amendment supported beginning debate of the bill. His amendment is one that goes directly to the substance of the bill that we are debating and not an unrelated issue. So I wish to compliment the author, Senator Toomey. This is the way we should operate in the Senate.

As many know, I have been advocating for rules changes since 1995. One thing I have always adhered to is that it is the right of the minority to be able to offer relevant germane amendments to a bill. The author of this amendment has adhered to that. This is certainly relevant. This is certainly germane. That is why I compliment him for providing us with a way the Senate should work. But the amendment, I believe, is ill-defined. It would open the floodgates for all kinds of new cases. It would disrupt businesses all over America. So for that reason I urge my colleagues to oppose the amendment by the Senator from Pennsylvania.

I yield the floor.

Mr. President, today the Senate is sending a clear message that all Americans are entitled to earn a living free from discrimination and to be judged in the workplace based on qualifications, ability, and integrity.

The Employment Non-Discrimination Act is simple and clear. It states that private businesses, public employers, and labor unions cannot make employment decisions--hiring, firing, promotion, or compensation-- because of a person's actual or perceived sexual orientation or gender identity. The bill is modeled on title VII of the Civil Rights Act, a law that has been in place for almost 50 years. It is a law that is well understood by employers and is strongly supported by employers.

More than 50 years ago, with the Civil Rights Act, we took the first steps to eliminate discrimination at work. Since that time we have ensured that the employers may not discriminate on the basis of race, sex, national origin, religion, or age. In 1990 with passage of the Americans with Disabilities Act we ensured that Americans were not discriminated against on the basis of a disability. Today, for the first time, the Senate goes on record prohibiting discrimination at work on the basis of sexual orientation and gender identity.

Yesterday I entered into a colloquy with Senator Leahy, the distinguished chairman of the Judiciary Committee with regard to Senate amendment No. 2012. I would like to further clarify my response to Senator Leahy. As Senator Leahy clearly set forth in his question to me, this amendment simply says that you cannot retaliate against an organization solely because it qualifies for the exemption under section 6(a) of ENDA. The amendment is not intended to undermine in any way current or future Federal, State, or local civil rights protections--States and localities can still enforce their own nondiscrimination laws for violations within their jurisdiction, regardless of whether an entity is exempt under the national ENDA legislation.

We have had a very collaborative process on this bill, and I would like to take this opportunity to thank all of those who have made that possible first, to the sponsors of the bill, Senator Merkley, Senator Kirk, Senator Baldwin, and Senator Collins, all of whom have put in many hours behind the scenes working to build support for this bill and make passage today a reality. Thank-yous also go to their staff: Jeremiah Bauman, Cade Clurman, Amber Shipley, John Kane, Katie Brown, and Betsy McDonnell.

On my HELP Committee staff I would like to thank Beth Stein, Lauren McFerran, Chris Williamson, and Pam Smith. I would also like to thank the HELP Committee minority staff who also worked to get this bill through a very collaborative process: Kyle Fortson, Kai Hirabayashi, and David Cleary. A special thank-you goes to Dan Goldberg, who recently left my HELP Committee staff but did a tremendous job on this bill up through the committee markup. I commend all of the staff for helping to make final passage of this bill a reality.

I thank the Chair.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on November 7, 2013, at 9:30 a.m.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on November 7, 2013, at 10 a.m., to conduct a hearing entitled ``Housing Finance Reform: Essential Elements To Provide Affordable Options for Housing.''

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on November 7, 2013, at 9:30 a.m., in room 366 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on November 7, 2013, at 11 a.m.

Mr. President, I ask unanimous consent that the Subcommittee on Consumer Protection, Product Safety, and Insurance of the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on November 7, 2013, at 10 a.m. in room 253 of the Russell Senate Office Building.

The Committee will hold a hearing entitled, ``Demand Letters and Consumer Protection: Examining Deceptive Practices by Patent Assertion Entities.''

Mr. President, I ask unanimous consent that the Committee on the Judiciary, Subcommittee on Oversight, Federal Rights, and Agency Action, be authorized to meet during the session of the Senate, on November 7, 2013, at 1:30 p.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Justice Denied: Rules Delayed on Auto Safety and Mental Health.''

Mr. President, I ask unanimous consent that Zachary Kachevas and Nicole DuBois, of my staff, be granted the privilege of the floor during the remainder of today's session.

I thank the Senator for his question. He is correct, nothing in this amendment would modify the nondiscrimination provision that was included in the Violence Against Women Reauthorization Act. What this amendment does is say that you cannot retaliate against an organization for discrimination in its hiring, firing, compensation, or other terms or conditions of employment if you are an organization that qualifies for the exemption under section 702(a) of title VII of the Civil Rights Act. ENDA's religious exemption does not create new grounds for liability or penalty.

Mr. President, I spoke at some length on this bill, the Employment Non-Discrimination Act, the other day, but as we move to end debate on the bill itself, I want to once again express the critical nature of the bill for ensuring equality in the workplace for all Americans.

I was just on the floor listening to Senator Merkley's very poignant remarks, and I want everyone to know that we would not be here at this point in time with this bill before us ready for passage tomorrow were it not for the leadership and the persistence of Senator Merkley from Oregon. He has been a champion of this issue since he served in the Oregon Legislature, and when he first came here he became a champion of this bill. He truly picked up the mantle of Senator Ted Kennedy in picking this bill out from sort of the ashes of 1996, the last time-- the only time--we ever had a vote.

I say through the Chair to my friend from Oregon, we thank you for your doggedness on this issue and for working across the aisle, on both sides of the aisle, to bring it first to our committee and then getting it through the committee and now on the floor.

Again, I want the record to show that it was Senator Merkley who really spearheaded this effort, along with Senator Mark Kirk on the Republican side. The two of them fought very hard to get us to this point and to make sure we were actually debating it. So we are greatly indebted to the distinguished Senator from Oregon for his leadership on this issue.

We had an incredible vote the other night that demonstrated more clearly than anything I can say that the Members of this body believe in the message of equality and fairness that is embodied in this bill. The commitment and good faith with which Members have negotiated and offered amendments has been a tribute to the Senate. What we are seeing here is how the Senate ought to work. This is sort of the Senate at its best. We can do business here and get important work done when we share a commitment to fairness and when we act in a spirit of compromise and good will.

I listened to the Senator from Oregon, who so eloquently pointed out that too many of our citizens are being judged not by what they can contribute to a business or an organization but by who they are or whom they choose to love. Well, the Senate is poised to take an important step toward changing that.

Quite frankly, I say with all candor, I think the American people have gotten way ahead of us on this one. The American people--a great majority--believe in the right of an individual to earn a living free from discrimination and to be judged in the workplace

based on their integrity, their ability, and their qualifications. This bill ensures that the same basic employment protections against discrimination that already protect American workers on the basis of race, religion, ethnicity, gender, and disability also apply to lesbian, gay, bisexual, and transgender Americans.

It is rare to have before us a bill with such broad and deep support. ENDA is supported by some 60 faith-based organizations, including congregations and organizations varying from the Presbyterian Church and the Episcopal Church to the Progressive National Baptist Convention, the Union of Reform Judaism, the Union Synagogue of Conservative Judaism, and the Islamic Society of North America.

A poll showed that 76 percent of American Catholics support basic workplace protections for gay and transgender workers, and in the same poll almost 70 percent of evangelical Christians support employment protections for LGBT persons.

Over 100 businesses support the bill, everything from Pfizer, Levi Strauss, to Hershey, Capital One, Alcoa, Marriott Hotels, InterContinental Hotels, Texas Instruments, and on and on.

Seventy-four percent of Fortune 100 companies and nearly 60 percent of Fortune 500 companies already have sexual orientation and gender identity nondiscrimination policies in place.

In the course of our committee hearings on this bill, we heard from executives of Nike and General Mills, who both testified that ``ENDA is good for business.'' A Nike representative told the committee:

Teams thrive in an open and welcoming work environment,

where individuals are bringing their full selves to work.

Since the Senate last considered a version of this bill in 1996, 17 States--and I am proud to say, including my State of Iowa--have put legislation in place that includes these basic employment protections for LGBT citizens. Those laws have been implemented seamlessly and have not led to any significant increase in litigation. But certainly that is not to say what we are doing here is not necessary. The majority of Americans--56.6 percent--still live in States where it is perfectly legal to fire someone or refuse to hire them because of who they are--a lesbian, gay, bisexual or transgender American.

Discrimination in the workplace is real. Forty-two percent of LGBT workers report having experienced some form of discrimination at work. Seven percent reported having lost a job as a result of their sexual orientation. Far too many hard-working Americans continue to be judged not by their ability and their qualifications but by their sexual orientation or gender identity.

I talked the other day about Sam Hall, a West Virginia miner who faced destruction of his property and verbal harassment from his workers because of his identity as a gay person. Sam is one of those millions of Americans who have no legal recourse without the law. I also talked about Kylar Broadus, who faced intense harassment at work as he transitioned from female to male and who has never recovered financially. I talked about Allyson Robinson, who was forced to live in a different State, apart from her family, because she could not find a job as an openly transgender female. This law will make a real difference for these Americans and for millions more like them.

I remember 23 years ago I stood at this podium, at this desk, as the sponsor of the Americans with Disabilities Act, as the chair then of the Subcommittee on Disability Policy. Senator Kennedy was the chair at that time. I talked about the necessity for the Americans with Disabilities Act in terms of a courthouse door.

I pointed out that as of that time, if you were an African American or a woman or let's say you were Jewish and you went down to get a job for which you were fully qualified and the employer said: I'm not hiring Black people; I don't hire Black people; I don't like you; get out of here; I don't hire Jews; get out of here, you could leave there and go right down the street to the courthouse, and the courthouse door was open to you because in 1964 we passed the Civil Rights Act that covered people that way. We said: You have recourse under law for violations of your inherent civil rights based on sex, national origin, religion, race.

But, as of 1990, if you were a person with a disability and you went down to the prospective employer to get a job for which you were fully qualified and the prospective employer said: Get out of here; I don't hire cripples; get out of here, and you wheeled your wheelchair down the street to the courthouse, the doors were locked. You had no recourse under law for that violation of your civil rights because it was not a civil right. So in 1990 we passed the Americans with Disabilities Act, and now the courthouse door is open. If you are discriminated against because of your disability, you can go down to the courthouse. You have the law on your side.

I stand here today, 23 years later, saying that we have covered civil rights laws in this country for almost everyone--except for those for whom gender identity or sexual orientation is part of who they are. That is true.

As I pointed out, we have reams of records here: people fired because they were gay or lesbian--not because they could not do the job, not because they were not doing their job, they were fired just because of who they were. Guess what. That gay person walked down to that courthouse door. It was locked. It was locked, just as it was for people with disabilities before 1990, just as it was for African Americans before 1964, and for women.

I mean these young people working here, these young women, they do not realize in the lifetime of their parents, at least their grandparents anyway, you could fire someone because she was a woman or not hire someone because she was a woman. Guess what. The courthouse door was locked. You had no recourse.

Some States passed civil rights laws. So we had some States pass civil rights laws. As I said, we have 17 States in America that do have laws on the books that ban discrimination on the basis of sexual orientation or gender identity. But how about the rest of the States? As I said, over 56 percent of American workers live in States in which there is no protection.

So in the long march of the American experiment, from the time of our founding and the Bill of Rights, from our Declaration of Independence which said ``all people are created equal,'' step-by-step, step-by- step, sometimes long, painfully--sometimes too long and too painfully-- we have expanded this covenant to bring more people into the American family to recognize that people should not be judged on the basis of some externalities such as the color of their skin or their sex or their religion or national origin or disability or whether they are lesbian, gay, bisexual or transgender.

Everyone should have these civil rights, to be covered by civil rights so they will be judged on their contribution to society, by what they do, not by who they are. That is why this vote is so important. That is why this is a historic step again for the Senate.

You could look back and, yes, there were people who opposed the civil rights bill in 1964. We had people here that opposed the Americans with Disabilities Act. But look back and see what they did for America. We are a stronger and a better country because of those laws that were passed, much better for everyone--for everyone, for our families, for the elderly, for everyone.

I hope that those who may be thinking: Gee, I do not want to support this; I am not a big fan of gay people or I may have some religious problems on that, we have religious exceptions in here. That is not the issue. The issue is whether that should be an allowable reason to be discriminated against in employment. As I said, we have said before that is not a legitimate reason for race, sex, national origin or disability; why should it be a reason based upon your sexual orientation or gender identity? I hope my fellow Senators will think about what they would have done had they been here to vote on the Civil Rights Act of 1964. What if they had been here just 23 years ago to vote on the Americans with Disabilities Act?

This Employment Non-Discrimination Act takes its place alongside all of those. That is why it is such a historically important vote. The bill's sponsors, Senator Jeff Merkley, Senator Mark Kirk, Senator Tammy Baldwin, Senator Susan Collins, have worked

long and hard. They have worked closely with us in the committee over the last few days to continue to build support for this bill, to work through proposals to change and improve the bill.

We are finishing the debate tomorrow. We will have the final vote on this bill. Passing it with a resounding majority will send a clear message to the American people and to the House of Representatives that we have waited long enough. Think about this. This bill failed by only one vote in 1996--one vote. So here we are 27 years later. It is time to pass this. It is time now to end workplace discrimination against any member of our American family based on sexual orientation or gender identity.

I yield the floor.

Mr. President, I ask unanimous consent that Lauren Sarkesian and Jennifer Lucas of my staff be granted floor privileges for the duration of today's session.

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

Mr. President, today marks another step forward in the progress of the United States of America in making sure that all of our citizens are treated fairly and equitably under the law, that each citizen of this country will know he or she cannot be discriminated against because of race, religion, sex, or national origin. That was all covered in the Civil Rights Act of 1964.

In 1990 I was proud to stand at this very desk when we took another step forward when we said we were going to extend civil rights to cover people with disabilities. Today I stand here to mark another step forward when we will have a vote on proceeding to the debate to end discrimination in employment because of a person's sexual orientation. It is a huge step forward, one too long in coming.

I was here in 1996 when we voted on the Employment Non-Discrimination Act, the bill that is now before the Senate. We lost by one vote--50 to 49. That was a dark day. We have been trying to get it before the Senate ever since, and we have finally done so. I am proud to say that we got it through the HELP Committee this summer on a strong bipartisan vote, and we now have it before the Senate.

People should understand this is a momentous day in the development of our country, ensuring that every person is recognized for their individual worth and for what they contribute to society, not for the color of their skin or race or religion or national origin or whether they have a disability. Today we also say: We will make sure you cannot be discriminated against because of your sexual identity or whom you love.

It has been 17 years since Ted Kennedy, who chaired the committee at the time, brought this bill to the floor in 1996, and it was, again, one vote shy of passage. In the meantime, over those 17 years, the attitudes in this country have changed dramatically about the rights of gay, lesbian, transsexual, and transgender Americans. In a nutshell, I think the vast majority of Americans believe that individuals ought to have the right to earn a living free from discrimination and that they should be judged on their performance in the workplace based on their talent, their ability, and their qualifications.

Interestingly enough, since 1996, 17 States--including my State of Iowa--have passed legislation that includes basic employment protections for all LGBT Americans. I will use that acronym or those letters to explain lesbian, gay, bisexual, and transgender Americans.

Eighty-eight percent of Fortune 500 businesses have included protections in their nondiscrimination policies, as have the majority of small businesses. Over 100 major businesses, including pharmaceutical and technology companies, banks, manufacturing companies, and chemical companies have announced their support for this bill. In fact, there are polls that show 8 out of 10 Americans already believe that discrimination against people because of their sexual orientation is already illegal; for example, that it is illegal to fire someone for being gay or for being a lesbian.

Why are we here today? Twenty-three years ago I stood at this desk as the manager of the Americans with Disabilities Act. That bill was to extend nondiscrimination clauses to people with disabilities. At that time a lot of people said: What is the problem?

Here is the problem in a nutshell. Let's say you are an African American--or a woman or Jewish or Catholic or anything else--and you applied for a job for which you were fully qualified and the prospective employer said: No, I am not hiring African Americans. I don't want any Black people working here. No, you are Jewish; get out of here. Do you know what you could do? You could turn right around, walk out the door, go down to the courthouse, and the courthouse door would be open for you. You can go into that courthouse and take that case to court.

When I stood here 23 years ago, I said: Until the President signs that bill into law, a person with a disability--for example, someone bound to a wheelchair--could be turned down in spite of being qualified for the job. The prospective employer could say: Get out of here; I don't hire cripples. If you then went down to the courthouse, the door was locked. You had no recourse under law for the violation of your civil rights. That is true today for gays, lesbians, bisexual, and transgender Americans. They could be fired just because of that. If they go down to the courthouse door, it is locked. They have no recourse under law.

As I said, 17 States have State laws, some municipalities have municipal laws, but the vast majority of Americans live in States in which there is no civil rights law governing LGBT people. The majority of Americans--more than 56 percent--live in States in which it is perfectly legal to fire or refuse to hire someone because of who they are--lesbian, gay, bisexual, or transgender. They have no recourse under law. As I said, most people in America think they are covered. They think you can't discriminate against someone because of that. The fact is that it is still perfectly legal to do so in most States in the United States.

As I said, I think we have changed quite a bit in the 17 years since we last considered this bill. That last vote was 49 to 50. We lost by one vote, and there were no amendments. At that time a majority of Senators would have been enough to pass it. All we needed was one more vote. I remember Vice President Al Gore was sitting in the chair, but we were one vote short.

Today, however, as times have changed, we know we need 60 votes to pass bills. Just think about that--17 years ago 51 votes would have passed this bill; now we have to have 60 votes. I won't get into the necessity of having to change the rules of the Senate. We need 60 votes before we can even bring up the bill. It is a tribute to the leadership of the bill's sponsors, Senator Jeff Merkley and Senator Mark Kirk, that we have now reached 60 votes. As of last week we only had about 57 or 58 votes, and then 2 more people decided to support the bill. Now that Senator Heller of Nevada has announced his support for the bill, we have 60 votes. We have 60 votes, and I predict we will get more than 60 votes. Once we reach the critical mass, I think my colleagues will understand that this is another step in the direction of opening America and making our society more inclusive rather than exclusive.

Senator Kirk, who is managing the bill for the minority, had been a supporter of this legislation before he was elected to the House. Senator Merkley, who is the sponsor of the bill, was the leader of this effort when he was in the Oregon State Legislature. One Republican and one Democrat were champions of this bill before they came to Congress. They both played a critical role in ensuring the bill was brought before our committee. Even though Senator Merkley left our committee to join the Appropriations Committee, he always kept on top of this. With their help, we voted it out of our HELP Committee in July with a strong bipartisan vote of 15 to 7. I thank the present occupant of the Chair, the distinguished Senator from Connecticut, for all of his help and support for getting this bill through. We had the support of three Members of the minority as well. The vote was 15 to 7. It was a great vote.

Despite the passage of laws at the State and local levels, discrimination in the workplace continues to be all too real. Forty-two percent of lesbian, gay, and bisexual workers report having experienced some form of discrimination at work. Even with the progress that has been made at the State and local levels, as I mentioned, too many

hard-working Americans, whether employed by private companies or public entities, are judged not by their ability and qualifications but by their sexual orientation or gender identity.

Consider the example of Michael Carney, who was denied reinstatement as a police officer three times before successfully using the protections of State law to get his job back. This is a job in which he has now served with distinction for many years.

Consider Sam Hall, a West Virginia miner who suffered destruction of property and verbal harassment from coworkers because of his identity as a gay person. Sam is one of those millions of Americans who currently have no legal recourse without this law.

Discrimination against transgender Americans is even more common, with 78 percent reporting harassment at work. I was fortunate enough to hear from Kylar Broadus, who was a witness at our HELP Committee hearing last year. Kylar faced intense harassment at work as he transitioned from female to male. He has never fully recovered financially from the loss of his well-paid position.

Allyson Robinson also provided written testimony to the committee regarding the painful separation from her family that she endured because of financial hardships while she searched for her first job as an openly transgender female.

Again, too many of our fellow citizens are being judged not by what they can contribute to the workplace but by who they are and whom they choose to love. Unfortunately, we can cite countless cases of bigotry and blatant job discrimination based on sexual orientation or gender identity. Equal opportunity is not just an abstract principle or a matter of statistics. Every day, decent hard-working Americans are being hurt by this form of discrimination.

It has been almost 50 years since we first took steps to eliminate discrimination at work and 23 years since we passed the Americans with Disabilities Act to eliminate discrimination against people with disabilities. We still have a long way to go, but our country is a far better place because of laws against discrimination based on race and sex and national origin and religion and age and, yes, disability. At long last, it is time for us to also prohibit discrimination on the basis of sexual orientation and gender identity. Such discrimination is fundamentally wrong and cannot be tolerated any longer in our country.

Lesbian, gay, bisexual, and transgender Americans deserve the same civil rights protections as all other Americans. This bill will accomplish that. It will say to millions of LGBT Americans that they are full and welcome members of our American family and that they deserve the same civil rights protections as every other American.

The bill is very simple. It is very clear. It states that private businesses, public employers, and labor unions cannot make employment decisions--hiring, firing, promotion or compensation--because of a person's actual or perceived sexual orientation or gender identity. There are exemptions for small businesses and religious organizations, and current rules that are applicable to the Armed Forces are not affected. The bill expressly prohibits disparate impact claims. I wish to repeat that. The bill expressly prohibits disparate impact claims. It is modeled on title VII of the Civil Rights Act. That law has been in place, as I said, since 1964. This bill also incorporates many suggestions from members of both sides, Republicans and Democrats, on our HELP Committee, and I am glad we could work on a bipartisan basis to improve the bill and get it through our committee.

ENDA, as it is known--the Employment Non-Discrimination Act--has unprecedented support from major American businesses, including Dow Chemical, General Electric, Hilton Hotels, GlaxoSmithKline, Chevron, Wells Fargo, Marriott Hotels, Coca-Cola, Cisco, Kaiser, and on and on.

I ask unanimous consent to have printed in the Record this list of over 100 companies that support the passage of the bill.

Mr. President, in the course of our hearings on this bill, we

heard from executives from Nike and General Mills, among others. Asked why they had chosen to implement strong nondiscrimination policies themselves, the Nike executive testified:

ENDA is good for business because teams thrive in an open

and welcoming work environment, where individuals are

bringing their full selves to work.

The bill we are debating specifically protects religious liberty with a substantial exemption that allows specific religious organizations to continue to take sexual orientation and gender identity into account when making employment decisions in their religious organizations. I might point out this bill is supported by 60 faith-based organizations, including congregations and organizations ranging from the Presbyterian Church of America, the Episcopal Church, the Progressive National Baptist Convention, the Union of Reform Judaism, the Union Synagogue of Conservative Judaism, the Islamic Society of North America, and many others.

Among other things, polls show that 67 percent of American Catholics support basic workplace protections for LGBT workers. Almost 70 percent in that poll of evangelical Christians supports LGBT employment protections. So there is overwhelming support for this bill, as I said, amongst people of faith and religious-based organizations.

Again, I acknowledge the leadership of Senator Kirk, as well as the bill's lead sponsor, Senator Jeff Merkley of Oregon, who has championed this bill and without whom, I dare say, we would not be starting this debate today. In addition, we are fortunate the lead Democratic sponsor of the bill in the House in previous Congresses is now a Member of the Senate and a member of our HELP Committee, that is Senator Tammy Baldwin of Wisconsin. I hope she will soon be able to say she helped pass this bill in both the House and the Senate.

I look forward to the vote later today when we will vote to proceed to this bill. As we all know, under the rules of the Senate, after cloture is invoked, we will have up to 30 hours of debate and then the bill will be on the floor and open. We had several amendments filed in committee that members of the HELP Committee reserved to try to bring to the floor. So I am confident we can work with those if they are offered again. I hope all amendments that are offered will be directed at improving this important civil rights legislation. I hope amendments that are focused on unrelated matters can wait for another time, another day, perhaps when that issue is on the floor. This is just too important--this major step forward in expanding our concept of civil rights laws--too important to be dragged down by spurious amendments that have nothing to do with the bill whatsoever. I hope we do not get bogged down with that.

As I said, it has been a long time coming for this bill, when we think about it. Seventeen years ago we voted on it and lost by one vote. Attempts have been made periodically to get it back to the floor again and it has just never happened, but now we have the opportunity. We reported it out of committee, as I said, with a good bipartisan vote.

ENDA is a critically needed bill. It is commonsense legislation. It has overwhelming support from corporate America, from religious groups, from small and large businesses all across the country. As I said, 8 out of 10 Americans already think it is the law. So let's make sure those 8 in 10 Americans who already think it is the law will now know it is the law, and we can pass it, send it to the House. Hopefully, the House will pass it and the President can sign it into law as soon as possible.

No American should be turned away or have to fear the loss of their job or their means of support or fear of not being hired, even though they are eminently qualified, for any reasons other than their ability to do that job. People shouldn't be fired and shouldn't be discriminated against in hiring because of the color of their skin, their race, their religion, their sex, national origin, disability. That is already in the law; now we put this next piece in place--no one should be denied a job, an opportunity to work because they are gay, lesbian, bisexual or transgender. That is what this bill does.

I encourage all Senators to join with us in passing this important civil rights legislation and continuing our Nation's advance toward freedom and inclusion for everyone in our society. Let's say this is a bright day for America. We are finally bringing it to the floor. As I said, we will have the vote later today. We have 60 people who have said they will vote for it; I hope we have more. Sometime later this week--I don't know if we will use the 30 hours but, hopefully, sometime later this week, we can finally pass it. As I said, I think this week will be one that will be an uplifting week. We have had a lot of problems around this place over the last couple of months. I know from the polls that Members of Congress, in both the House and the Senate, are probably about as popular as a toothache with the general public right now. But this week we can show the American people we can come together and we can lift our eyes above the haze and the smoke on the horizon, and we can make this country a better place for all of us by passing this bill. Let's do this, and let's bring to the American people what they think they have already and what they now want. That is, a society free of discrimination.

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

Madam President, the Senate is about to take another historic step. Think about it. In 1964 we had the Civil Rights Act. In 1990--23 years ago--I stood here when we passed the Americans with Disabilities Act, which extended civil rights to people with disabilities.

Today we are taking one more step to make the American family more inclusive and once and for all ban employment discrimination against gay, lesbian, bisexual, and transgender Americans.

This is a historic opportunity for the Senate once again to say that we are all members of the American family. No one should be discriminated against because of race, sex, religion, or national origin. They should not be discriminated against because of who they love, who they are or whether they are gay, lesbian, bisexual, or transgender.

This is a historic step for the Senate to take today.

I urge a yea vote on the motion to proceed.

Mr. President, I rise to congratulate the Employee Benefit Research Institute on its 35th anniversary this year.

As chairman of the Committee on Health, Education, Labor, and Pensions, I know how important it is for policymakers to have access to quality data on our health and retirement systems. And for 35 years, EBRI has been providing just that kind of information. For instance, EBRI is a major source of information on how health plan coverage has evolved over the years and how employers have responded to market changes. EBRI is also a unique resource on both 401(k) and IRA ownership, and during the Enron crisis of several years ago, EBRI was one of the only sources of data on what was happening with company stock in 401(k) plans. Because of their expertise and reliability, we in Congress frequently ask EBRI's experts to testify at our hearings, since we know we can trust what they have to say.

Health and retirement coverage for American families is critically important to our Nation's future. We are fortunate to have such a respected and reliable source as EBRI to tell us what is happening with employee benefits, and I commend them on their anniversary.