Floor Statements

Mr. President, let me first commend and congratulate Senator Roberts, the chairman of our Select Committee on Intelligence, for the leadership he is giving on that very important committee. It is a very important and difficult assignment.

I thought his statement today was a very good one. I jokingly said, but I meant it sincerely, I could not quite tell when he went from quoting Churchill to speaking for himself because the eloquence was very close.

He makes a plea that is so important, and that is: Do not prejudge what the subcommittee is going to do. Members of the Intelligence Committee should not prejudge the information we are going to receive in the staff report. We should work together to see what we have and what conclusions we reach and what should be done. That is our job.

I acknowledge that this is another in a series of what has been described in many different ways but I just refer to it as ``oops'' hearings--oops, we missed something here. But it has been going on for years.

There was not a clear indication of what was happening in the Soviet Union, that they were imploding economically and they did not have the strength we thought they did in the defense area. We had Khobar Towers. We have had a series of events that our intelligence did not pick up. Once again, we find ourselves now, with the 9/11 Commission, working to see what we missed perhaps in our intelligence and law enforcement community before 9/11. It should not be approached, though, with the idea of condemning some particular individual but finding out what happened: Why did we not do a better job? What did we not know? And more importantly, what are we going to do about it?

I am tired of oops hearings that happen after the fact and nothing really changes. Are we going to make a real change this time? Can we do a better job with our intelligence, and our intelligence community? I think we can.

By the way, when we start pointing a finger of blame, we better look in the mirror first. We have had these intelligence committees since the 1970s. We have known that their budget has not been adequate through much of the 1990s. We have known that we lost our ability to have human intelligence, people on the ground. It became politically incorrect in the 1970s to have the head of, say, a financial institution in Buenos Aires to be headed by an American who was an agent, or a journalist who was working for a newspaper but was an agent. We have made it extremely difficult. We have become too caught up in sophistication, thinking we could get enough with satellites or with technology. It is not enough.

I think what we need to do is lower the rhetoric. I know this is a political year, an election year. Everything is going to be somewhat political on both sides, but can we spare one thing, just one thing, from the political agenda? Can we not separate out intelligence and how we support it? Can that not be bipartisan? Now there is a call for an independent commission. We have even dropped ``bipartisan.'' Now it is ``independent.''

Who decides that it is independent? Some people are indicating if the President calls for an independent commission, one to which he appoints good men and women, that is not independent, but if it is one established by the Congress where we name Republicans and Democrats; that is independent.

Quit the blame game. Ask legitimate questions. Work together. Draw conclusions and, more importantly, take action. Intelligence is so critical. In some respects it is even more critical than defense spending, because if we do not have good intelligence and if we do not have a reliable intelligence apparatus that works with our defense, our men and women are exposed to uncertainty, unknown difficulty, and death.

We are talking about the lives of young men and women. Is it good that we are condemning and revealing information about the quality of our intelligence community while our men and women are today in Iraq, Afghanistan, and all over the world, who are relying on the ability of our agents, the CIA, the DIA, the different organizations we have doing intelligence? Even doing that is dangerous, in my opinion.

We should do our work. I am not happy with the intelligence. I do not think the intelligence was what it should have been. It was inadequate, maybe even inaccurate. But why? There was large agreement not only within our community but also with agencies from around the world.

Has my time expired?

I believe the Senator from Kansas yielded to me some more of his time, if I could inquire about using an additional 2 minutes.

Madam President, I yield myself an additional 2 minutes of time that has been designated for the leader or Senator Roberts. I will be brief because I know Senator Feinstein is waiting.

I would be glad to yield.

Madam President, I conclude by talking about what we should do now. The Intelligence Committee should do its job. We should not jump to conclusions. Let's review the report. Let's do our homework. We pushed so much of it off on our staff, now it is time we do it ourselves. Let's read what is in there and then let's decide what recommendations we are going to make.

Why do we have these committees that are evenly divided? I have studied the history. I have been involved in how the Intelligence Committee works. We have carefully tried to make sure we put our best on that committee and that it is equally divided and that it is not partisan. The same thing in the House. Now it is time we lead and show some direction.

I hope we will take some action. I am for actually making some really aggressive rules. I am not sure our intelligence community is set up properly. I don't like the idea that we have 13 different agencies running around. Who is in charge, who coordinates and asks them and directs them? I think there are some problems there.

Then there are those saying we need an independent commission. The President said we should have one. Let's do everything we can to find out the facts and see the recommendations and take action and reassure ourselves and the American people. Now that is being condemned.

I think we should do our work in the Intelligence Committee. Let the President appoint this independent commission. Let's do this job in a responsible way and not rush to judgment.

There will be efforts today to say, well, the report is totally inadequate, before the Senators even read the report. I realize Senators don't like to have lengthy sessions of reading material to review these recommendations. But never before has it been more important that we do this right.

I think we should make changes. I personally think there need to be some personnel changes. That may not be my decision. But hopefully I can help get a result that will make sure we don't have another, ``Oh, my God, what didn't we know?'' hearing. This is too serious. I urge my colleagues on both sides of the aisle, let's do our job, let's do it in a nonpartisan way, and let's try to keep politics, as much as we can, at least out of Intelligence.

I yield the floor.

Mr. President, I believe I have 5 minutes under the unanimous consent agreement.

I thank Senator Kyl and Senator Reid for making sure we have this time. I, too, think we need to sober up a little bit and look at the facts of what is involved.

First, it is an election year. Politics will come into play in everything we do. I don't mean that necessarily critically of us or either side. It is a fact. I suspect that it is having a hand in what we are seeing now.

Secondly, the fact is, we do have some problems with our intelligence community. It is not new. It didn't come up over the last 10 months or the last 10 years. It probably goes back to the mid-1970s when we had the Pike and the Church commissions that forced changes in the intelligence community from which we have never quite recovered. That is when we started getting away from human intelligence and relying on satellites and computers and technology. That is a big problem.

We can go back and point to things we didn't know or information we should have had back in the 1980s and 1990s that we didn't have. For us to take a look at our intelligence community and ask questions about why they have not done some things or they have gotten some things wrong is perfectly legitimate. The most important question should be, what are we going to do about it? Instead of pointing the finger of blame, trying to put some scalp on the wall and say: We nailed somebody because this information may not have been completely accurate, we should ask: What did we know? Did we need to know more? Were there inaccuracies? If so, what were they, and what are we going to do about it? Do we need to completely reconstruct our intelligence community?

Do we need to make some changes at the head of some of these agencies? I don't know yet. But that should be our approach because we are going to need our intelligence community. We need it this very day.

Senator Kyl was making the point. Our troops are in the field today all over the world, particularly in Iraq and Afghanistan. They are working with the intelligence community today to try to make sure they know what is going on and what is happening, what the threats are. We don't want to undermine them. At the same time, if we are going to make improvements or changes, the sooner we can do it, the better.

The other thing is, what did we know. It is almost as if there were no weapons of mass destruction. We knew they had weapons of mass destruction--chemical, biological. They tried to get nuclear capability. We know they killed their own people. They used chemical weapons on the Iranians. I was talking to a constituent this morning who was in Bazra back in the early 1990s, who talked about how simple it was to produce chlorine gas. Yet if you looked at the plant, you could be told, this is just a plastics plant. But it is very simple to make chlorine gas. It is very toxic, and that was what was used, I believe, against the Iranians. So we know they had these weapons of mass destruction.

Did they dismantle them, destroy them? Where did they destroy them? Why did Saddam Hussein give out bad information? Was he being lied to? Yes. Was he lying to the world community? Yes. There are all kinds of problems or questions such as that.

Did they move these weapons to Syria, Iran? We know they had them. That is a fact. We still don't know exactly what happened to them, and that is a danger.

What are we going to do about it? Let's become a government of commissions. It is really easy. Pass it off to a commission--the base- closure procedure, the 9/11 investigation, Social Security, intelligence. Let the Congress just say: We know nothing; we see nothing; we hear nothing. Let's let somebody else do it.

By the way, I have watched these commissions. Just because you have Republicans and Democrats, are you going to call them independent? How about an independent commission set up by the President that might have people who weren't clearly Republican or Democrat? How about experts on intelligence, people who have been at the CIA and the FBI, people who are not identified in the political area? If you want a real independent commission, that might be the way to do it.

I have another question: Why don't we do our own work? What do we have the intelligence committee for? The more I am on there, the more I think maybe we should not have it the way it is presently constituted. We are not going to wait for the Senate Intelligence Committee to put out its report. We are not going to wait on the House, bipartisan, Select Intelligence Committee to put out its report. No, we are going to rush pellmell and create a commission before we even see the report.

I suspect the report from the Senate Intelligence Committee is going to be more aggressive than a lot of people might think. I think we are going to ask a lot of legitimate questions. How about letting the Iraqi survey team, the group that is out there still looking, do their work. But, no, it is a political year. We are going to use this to question all kinds of people.

The President got information on which he relied. The Senate got information it relied on. If there was inaccurate information, we ought to find out why and determine what we are going to do about it. We need to back off a little bit because we are dealing with people's lives. How we act in the intelligence area is going to be very important in the next few months.

I yield the floor.

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

Mr. President, what is the parliamentary situation? I wish to speak on the pending legislative issue, the pension bill. Is the floor open for comments?

Mr. President, I rise in support of this legislation. I commend the Senators who have been involved in working out most of the disagreements, including Senators Grassley, Baucus, Gregg, Kennedy, and, of course, our leaders, Senator Frist and Senator Daschle, who have all been involved in working through the difficulties of this legislation.

Quite frankly, this is complicated and difficult legislation to understand. A lot of times, people start referring to issues by acronyms such as COLA or DRC. If you are not really involved in the intricacies of pension issues and, particularly, this area of deficit reduction contribution, you can get lost in the details. You can even be misled as to what the reason for it is and what the impact will be.

I have followed this issue because I am a member of the Finance Committee, which has jurisdiction in the area of pension plan contributions, and also as chairman of the Aviation Subcommittee of the Commerce, Science, and Transportation Committee. I do believe the airline industry is in a difficult situation now, but I think they are a critical part of America's economy and our transportation system. There is no question that they have been greatly impacted by fuel costs, the events of 9/11, and even, temporarily at least, by the war in Iraq. They have been struggling to deal with those issues. They also have had mistakes in their past, in management decisions. Some of the contracts they have with labor put real pressure on them in terms of being able to make enough money to pay all the costs of delivering this service. Regardless of that, I think it is hugely important for America that we have a viable and available airline industry.

We have been doing things to try to help them. Right after 9/11, we passed major airline relief, leading up to the war in Iraq. In the aftermath of 9/11, we provided direct assistance to the airlines. Late last year, we passed the Federal Aviation Administration reauthorization, a significant multiyear legislation that was hard to get through, but we got it done. It was supported by management and labor and the administration in the end. That gives some certainty about what the administration will be doing, what they can do. We opened up some areas that needed some changes. This area is also very important to the survival of some of our airlines.

Some will argue that it gives the major airlines an advantage over the smaller airlines. I certainly am not in a position to want to do that. I want all of our airlines to be able to meet the responsibilities and commitments of their pension plans but also to be able to stay in business and provide service. We need the shorter routes, the ones that fly from point to point, and the hub airlines. I want a healthy airline industry. This is one step in that process.

Some people will attack this legislation and say the airlines brought it on themselves. Sure, they have made mistakes, but a lot of things they are being hit with cannot be put at their doorstep as being their fault. They

didn't cause 9/11. They have not been responsible for the increasing and up and down prices of fuel. A number of factors that have played into their economic situation they cannot be blamed for. They have certainly made mistakes, but this is not something they brought on. This is a requirement in the law that we put on them. This is a part of the PBGC legislation, where they have to pay into the pensions, and we capped how much they could pay in.

A few years ago, in 2000, the airlines were committed and paying, I think, 100 percent of what was needed. But in the last year or two, they have fallen under severe pressure, and, as a result of the quirks in the law, they now would have to pay an accelerated penalty, even more money, because of the 30-year Treasury bond calculation process to determine how much they paid in. That has come to a conclusion. They have to go to a new system.

My point is that I think this DRC relief is the right thing to do. It is a temporary 2-year deal. They are not absolved of all of their responsibilities. It is an 80-60 percent--80 percent relief in the first year, 60 percent in the second year, and only plans that were not subject to the deficit reduction contribution relief in 2000 would be eligible for this relief.

The plans would not be able to increase benefits if they were 75 percent funded or less. An application process would allow companies that are not in those industries to request DRC relief if they were not subject to the DRC in 2000.

This is a temporary modification to provide relief to allow airlines to work through the difficulties they are having now. I believe this relief will enable them to move forward and fulfill their commitments in the future.

It is not going to bring in all of the plans. It is targeted at airlines and steel only, and I understand only a couple of steel companies would be affected by this.

This legislation is bipartisan. Democrats and Republicans have been working to try to address some of the concerns and deal with the recognition that interest rates have contributed to this problem, stock market declines have contributed to this problem, and what would we do to be of assistance to the airlines. But it also makes sure the PBGC is not left holding the bag. I think we have come up with the right solution.

Some people will argue the DRC relief will actually worsen the financial standing of the PBGC. I am concerned about the financial stability of the PBGC, but I think this temporary, limited relief will actually be in its best interest. If we do not do this, some of these airlines will go into bankruptcy and PBGC will have an even more difficult situation on their hands. If these companies wind up taking chapter 11, then the pension fund is going to have a problem.

The point might be made: Let's wait for the bigger pension reform bill. I know Chairman Grassley and others want to have broad pension reform. We need to do that. But we are not going to be able to do it in the next month or two, and I don't even think we are going to be able to get it done this year. We need to do it. We ought to do it. This problem is imminent. If we don't act by April 1, these airlines and steel companies are going to have to pay at the accelerated rate, which they are not going to be able to do. So it is timely. We have to act now because in a very short period of time, the roof will come falling in on these companies.

I understand there may be a couple of amendments. I appreciate the fact that Members did work with me on a provision I had concerning multiemployer withdrawal liability. We worked on compromise language that is in the legislation which I think is acceptable. Many of the questions that were raised by the chairman of the Budget Committee and by Senator Kyl of Arizona have been addressed. I understand they may have an amendment or two. We ought to debate those amendments and have a vote. But then I hope my colleagues will allow this legislation to move forward, go on to conference, and let's get it done in a timely fashion. It is in the best interest of the airline industry and, I believe, the PBGC, and the American taxpayer.

I thank the Chair. I yield the floor.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on January 22, 2004, at 9:30 a.m., in closed session to receive a classified operations/intelligence briefing regarding ongoing military activities in Iraq and Afghanistan, as well as other areas of interest.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on Thursday, January 22, 2004, at 10 a.m., on ``Judicial Nominations,'' in the Dirksen Senate Office Building Room 226.

Panel I: Senators.

Panel II: Raymond W. Gruender to be United States Circuit Judge for the Eighth Circuit.

Panel III: Ricardo S. Martinez to be United States District Judge for the Western District of Washington, Gene E.K. Pratter to be United States District Judge for the Eastern District of Pennsylvania, Neil Vincent Wake to be United States District Judge for the District of Arizona.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on January 22, 2004 at 2:30 p.m. to hold a closed hearing on Intelligence Matters.

Mr. President, in accordance with section 318 of Public Law 101-520 as amended by Public Law 103-283, I am submitting the frank mail allocations made to each Senator from the appropriation for official mail expenses and the quarterly summary tabulations of Senate mass mail costs for fiscal year 2003 to be printed in the Record. The official mail allocations are available for franked mail costs, as stipulated in Public Law 108-7, the Omnibus Appropriations Act 2003.

I ask unanimous consent that the materials be printed in the Record.

Mr. President, in accordance with section 318 of Public Law 101-520 as amended by Public Law 103-283, I am submitting the frank mail allocations made to each Senator from the appropriation for official mail expenses and summary tabulations of Senate mass mail costs for the third and fourth quarters of fiscal year 2001 to be printed in the Record. The third quarter of fiscal year 2001 covers the period of April 1, 2001, through June 30, 2001. The fourth quarter of fiscal year 2001 covers the period of July 1, 2001, through September 30, 2001. The official mail allocations are available for franked mail costs, as stipulated in Public Law 106-554, the Consolidated Appropriations Act 2001.

I ask unanimous consent that the materials be printed in the Record.

Mr. President, in accordance with section 318 of Public Law 101-520 as amended by Public Law 103-283, I am submitting the frank mail allocations made to each Senator from the appropriation for official mail expenses and the quarterly summary tabulations of Senate mass mail costs for fiscal year 2002 to be printed in the Record. The official mail allocations are available for franked mail costs, as stipulated in Public Law 107-68, the Legislative Branch Appropriations Act of 2002.

I ask unanimous consent that the materials be printed in the Record.

I am happy to answer the Senator's question. This provision was adopted in the Senate after being offered by the Senator from Alaska.

That is correct. Section 808 will allow carriers to interline cargo in Alaska so long as the cargo has an ultimate origin and/or destination outside of the United States. It does not allow foreign carriers to carry or transfer cargo with an ultimate origin and destination both in the United States.

Mr. President, could I inquire about what time remains for Senator Wyden?

Thank you very much, Mr. President.

I believe this is an issue whose time has come in the Senate. It is an issue I am very familiar with because I have dealt with holds, both as a Senator as a leader. I have placed holds, and probably over the years some of them have been anonymous, not so much out of intent, just that is the way it was.

I remember talking to Senator Wyden years ago, and Senator Grassley, about what we could do to have a better understanding of what a hold is and how it works and what could we do to stop the anonymous holds. Senator Daschle and I even got together on a letter and tried to clarify how holds should be handled, and what they mean, and how Members should deal with them, by telling the committee chairman or the sponsor of legislation that they had a hold. But there was no enforcement mechanism, so it did not happen.

At this time of year, holds are particularly a problem for the leadership. Republican or Democrat, this is not a partisan issue because when they pop up right at the end of the session, it could be unrelated to the nominee, unrelated to the bill. They can be a part of a rolling hold. But with all the warts of the hold, it is something Senators prize, maybe even treasure. But I do not see how anybody can defend them being anonymous.

If there is a secret hold on a bill or a nominee, and it is just at this time of year, it is almost impossible for the leadership to deal with it. The leader, he tries to track down who has the hold, and sometimes the staff will not even tell you who has the hold because they have a problem.

I can remember tracking down Senators in their hideouts, finding Senators in airports, saying: Please, this is the Deputy Secretary of State or this is a Commissioner who needs to be confirmed.

It is not good for the institution. I think someday we should even look at the whole practice of holds. You have an institution where one Senator--one Senator alone--particularly at the end of a session, can defeat a nominee or a bill anonymously. There is something wrong with that. You are putting your constituency or the constituencies of others and 99 Senators at the mercy of one.

There is this feeling here in the institution that we cannot touch the traditions or the precedents or the rules of the Senate. They are sacrosanct. They are holy. How do you think they got there? Changes were made. Improvements were made. Or problems were created.

So that is why I do commend Senator Wyden and Senator Grassley for being doggedly persistent on this issue. I do not wish to be a part of a process or an effort that causes difficulty for the leaders. They have enough problems now. They are concerned with the Energy bill, the omnibus bill, the Medicare prescription drug bill, the FAA bill--you name it. So I do not want to contribute to their problems.

But I do think something needs to be done here. I think we need to address the overall issue of holds, but at the very minimum we should have some way to deal with secret holds.

When we sent the letter, as I suggested earlier, we required Members to notify the sponsor of the legislation, the committee of jurisdiction, and the leaders of their hold. It had a little effect for a little while. Senators sort of said: Oh, yeah. OK.

By the way, what is a hold? A hold is a notice by the Senator--to the staff, usually--that before a nominee or bill is brought up, they want to be notified so they can debate it or so they can reserve all rights to amendments. That is all it really is.

Now, if it is anonymous, that makes it even more damaging. But it is a problem for the leader because you try to get the work completed, and the threat of a filibuster or endless amendments basically kills it. So since there was no enforcement mechanism, it just did not accomplish what we wanted it to accomplish.

This resolution would place a greater responsibility on Senators to make their holds public. It creates a standing order that would stay in effect until the end of this Congress. This is something that Senator Byrd had suggested, that maybe was the solution that would do the job. We can see how it works. Let's make it a standing order, not change the rules. Let's make it apply to the rest of this Congress, which would be next year. If it works, great, we might want to build on it. If it does not, it is dead.

The order requires that the majority and the minority leaders can only recognize a hold that is provided in writing. I put a hold on a nominee today. I said: Please put a hold on this nominee. Letter will follow. So I put it in writing and it is not a secret thing.

Moreover, for the hold to be honored, the Senator objecting would have to publish his objection in the Congressional Record three days after the notice is provided to the leader. That is critical: notice. That is all really we are looking for here: Understand what a hold is; put it in writing; and make it well known.

A hold should be left to the wrestling ring, not to the Senate, and it certainly should not be in secret.

I hope the leadership, Senator Frist and Senator Daschle, will work with Senator Wyden and Senator Grassley to find a solution that will allow us to do this. The light of day always has a purifying effect. This is getting to be very moldy. We need to deal with it. Again, I emphasize, I am for this because I think it would be good for the institution. I am for it because I think it is the right thing to do. I am not for it because I am trying to cause problems with the leaders. Heaven forbid, I don't want to do that. Actually, we are trying to help them deal with a problem. They are hesitant to do it because I know Senators are going to slip up next to them and say: Wait a minute, you may not want to change anything here. This is the way it has been done.

I challenge the Senators to stand up here and say they should not at least make it public. We can't have cowardice on something that is affecting people's lives and on legislation that affects our country.

I guess I am getting a little carried away. I agree with the Senator. I am going to continue to work to try to find a way to be helpful in getting this issue addressed because I think it is time we do it.

Mr. President, I appreciate the remarks of the Senator from Oregon and his thoughtful comments about the electricity section. I do think this legislation includes good language in that area that will be fair to all sides of electricity production.

I do believe, as a result of this legislation, we are going to have a better grid. There are incentives to expand the grid where it is needed. In my part of the country, there have been significant investments in the grid already. We have a surplus of power. We are delighted to have more competition. We are delighted to work to have interconnectibility.

But my concern had been that this language, this section, was not written properly, that the Federal Energy Regulatory Commission would have come up with a plan that would have forced ratepayers in my State to pay for additional transmission lines which would not benefit them. So it is a delicate balance.

It has been very hard to work through this with regional differences, with Senators on both sides of the aisle coming at it from a different viewpoint. But through the efforts of Senator Domenici and Senator Craig Thomas, and the interest of Senators such as Gordon Smith and Larry Craig, and the chairman in the House, Billy Tauzin, we came up with a good package. I appreciate the efforts of all concerned.

We will hear from the chairman and ranking member about details of this legislation. I am sure they will go into some of the specifics about policy decisions that were made in the electricity section and also give us detailed information about some of the tax policy, the tax incentives that were included in this bill.

I guess there is some sticker shock when we learn that the tax section would actually wind up being some $23.5 billion. But it is a diverse package and one that I do believe will produce more energy in this country.

It has a lot of incentives. Some of them will not produce that much, and I acknowledge that. Some of it I would not have included. Probably two-thirds of it I would not have included. But this is the art of legislating.

So I want to speak to the broader perspective of what we are doing.

We have not passed major energy legislation in the Congress for 10 years. The truth is, we have done very little since 1979, when we were dealing with lines at gas stations and unreliability of supply. Frankly, it has not been getting better over the years. It is getting worse. We are becoming more and more and more reliant on foreign oil for our energy needs--now well over 50 percent, probably headed for 60 percent. This is dangerous. We are relying on Saudi Arabia, Iraq, Venezuela, Nigeria, and other countries such as Canada and Mexico, countries on which it makes me very nervous that we are dependent for their oil to power this country.

This issue is about the future of America. Are we going to continue to be dependent on this foreign oil and, if we are, what will that mean for our economy if they decide to jack up the prices or cut off the supply, or if there is a change of government that produces uncertainty as we have seen to a degree in Venezuela, not to mention Iraq, of course.

That leads to the national security aspects. If we don't have a reliable energy supply, it will affect our ability to power our ships, our planes. I thought it was so ironic last year that we were involved in a direct conflict with Iraq and yet we were winding up relying on Iraqi oil which we brought to the United States, refined, and put in airplanes to bomb Baghdad. This is a dangerous situation.

What is the solution? Produce more energy supply of our own. The whole package, not just oil but, yes, oil. We have a lot of oil in America that is captured in these stripper wells, these small wells. We have natural gas that we could produce more of. What we have done in America is there is no incentive to produce it, and by the way, we have locked up lots of it. You can't drill in most of the Gulf of Mexico, not on the Atlantic or Pacific coasts, not in certain areas in the west. So slowly but surely we have stopped production in America.

This bill will produce some more oil and natural gas. We will be able to have greater use of coal because we are going to put an investment in clean coal technology. We are going to have more hydropower and, yes, more nuclear power. The cleanest power producers are natural gas and nuclear power. Why don't we encourage more of that?

And we have lots of incentives in here for alternative fuels: ethanol, biodiesel, whatever that is. We are going to use biomass, and some of that will be done in my State. I don't think it is going to produce a whole lot. I think it is going to eat up a lot of money. But we will look for alternative fuels, and that is good. So that is part 1: more production.

Some people say we don't need more production; we can conserve ourselves into an energy policy. How ridiculous can you get. What are we going to do, go back to just burning coal in the fireplaces? I used to have to bring in a scuttle of coal every morning before I went to school, and I didn't like it. It was cold to bring in the coal, and it was dirty burning. I never liked it. Well, what are we going to do? Just produce more blankets. They would probably be sent to us from China.

Let's get real. In conservation, yes, give incentives to people to better insulate their homes and to maybe buy more fuel-efficient and better appliances that don't create pollution. Let's include that. More production: let's go after alternative fuels. Let's have conservation. Let's have the whole package.

What will be the result? America will be more secure. Our economy will be stronger because this bill will produce jobs. You may say, well, they are not real jobs or maybe they are temporary jobs. A job is a job where I come from. Where I come from, if you want to eat and live and do well, you have to find a job. You take what you can get. This will produce over 800,000 jobs. This is a jobs bill.

It is about the future reliability of our economy, about the future of our national security, and it is about jobs, which will help our economy.

It is also about ensuring clean, affordable, and reliable energy--the whole package. I think we have good legislation here. We do have incentives in it for ventures such as geothermal energy. That will bring a renewable energy online, could create a few hundred jobs. We also are going to put a real emphasis on clean coal technology. We have an abundant supply of coal, and we are developing the technology to be able to use it, burn it, and in a clean way.

I commend my colleagues for producing this bill. It is like every legislative piece. It has a few warts on it. If you are expecting the perfect, this is not it. But we need to do this. We have been arguing about it for 3 or 4 years. The things that held us back in the past we did set aside. Now we are going to be able to get this legislation.

When you look back on this year, there is going to be a lot the Senate can take credit for having made a difference in the country--the tax bill, the partial-birth abortion legislation, energy legislation, and transportation bills.

I am glad we have this legislation. I urge my colleagues to support it. It will make a difference for the future.

I thank Senator Hutchison of Texas for putting together this opportunity for us to speak.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 2197 to Amendment No. 2150

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

Mr. President, this is an important piece of legislation that has been in the process all year now. As we know, the aviation industry has had its difficulties since the events of 9/11 and the Iraq war. Aviation across the board has struggled to comply with additional security requirements and to become economically viable again. A lot of changes are happening in the industry.

But Congress certainly has not been insensitive to the needs of this industry. We passed legislation to be of assistance in, I guess, 6 weeks after the 9/11 events, and then earlier this year additional assistance was provided to the airline industry as a result of losses they were experiencing and expected to experience as a result of the war in Iraq.

But they need the broader long-term Federal Aviation Administration reauthorization. I consider this legislation to be the third leg of the stool to give the aviation industry, as a whole, an opportunity to get up and running, to provide service to the American people, and to, frankly, see blue skies again. That is why this legislation is very important.

If we do not extend this FAA reauthorization, there are certain parts of the program that will either be deferred or will have to shut down. So it is not insignificant that we are up against the wall in terms of extending the Federal Aviation Administration legislation.

I emphasize, too, that this is not just about the agency. This is about an important part of our economy. We are very mobile in America. Transportation is such an important part of our economy. Americans are flying all over the country, as we speak, on airlines and in general aviation. They are in our airports. It is an important part of our economy. It creates hundreds of thousands of jobs, when it is allowed to function as it should. So we need to get this legislation passed.

It is, in my opinion, about safety in the aviation industry at our airports, in general aviation, with the airlines. We need to make sure the money is there for the aviation program, for the security that needs to be put in place on the airplanes, in the airports, on the perimeters. This is very important legislation. It is part of our overall homeland security program.

I remind my colleagues that H.R. 2115, the FAA reauthorization bill, is a 4-year $60 billion bill. This is a huge piece of legislation. We need to get it done.

I would like to point out to my colleagues some of the impacts we see as a result of this industry and what it means. First, aviation generates more than $900 billion in GDP every year. Over the life of this bill, the legislation is expected to create approximately 665,000 jobs; $14.2 billion in airport grant funding would create these 665,000 jobs. There would be 162,000 jobs in 2004 alone; $14.2 billion will be used for security, safety, and capacity projects at airports; $13.3 billion would be to modernize the air traffic control system, and $500 million for the Essential Air Service program.

This is an important piece of legislation. A lot of money is involved. It is not just about the big airports; this is about the smaller airports. We do have good programs included here, including the Essential Air Service, and also a program that allows communities to be involved and participate with some funding of their own.

We have had an experimental program in place now for the last couple years. This would extend that small community Essential Air Service program. A number of communities around the country are very much interested in having that opportunity.

It also provides new opportunities for flights out of Reagan National Airport, 8 new flights inside and 12 new flights outside the perimeter. So this is very important legislation in terms of the airports.

For the first time we actually make sure the regional airlines get some assistance. When we passed the big legislation back in 2001, the regional airlines were sort of left out. So we would get that done.

It provides for cost-effective programs that could save the taxpayers

$173 million per year. It has a huge impact on States all over the country. I would like to show a chart to give you some idea of the amount of money and the amount of jobs that would be affected by this legislation. I have the list here. It is too small probably for most of you to see, but I will just pick a couple of them: Alaska, $522 million, 24,000-plus jobs.

I see the Senator from Georgia, a very important terminal in Atlanta, one of the most important in the country, $162.6 million; 7,722 jobs; a smaller State, North Dakota, $59.2 million, 2,814 jobs.

The list is here. If you want to see how your State would be affected with dollars and jobs, we have the information for you.

The question would be, Why has this taken so long? We passed it back in May in the Senate. It passed the House. We went to conference. We worked out an agreement on good legislation. But it did include some language that became controversial. It did say there would not be privatization of the air traffic control system, but it identified 69 sites in medium and small communities where contract hours could be considered or could be actually put into place. So there was a criticism about that.

After trying to work it out in a variety of ways, we went back to conference and took that language out. So we basically went back to the status quo. We don't say there won't be privatization of the air traffic control system, and there won't be. We didn't say that, well, these 69 contract areas might be considered for contract hours. We took both of those out, thinking, well, we are ready to go now.

Strangely enough, that was not acceptable, either. So we have been working in a bipartisan way to try to come up with some solution that would satisfy both parties, all parties, and how this could be handled.

Senator McCain, Senator Hollings, Senator Rockefeller, Senator Dorgan, and I sent a letter to the FAA Administrator, Marion Blakey, last week saying we thought it would be appropriate to have a 1-year moratorium on any effort of privatization. We have been working with the administration on that issue since that time.

The administration, I believe, is willing to make a commitment to not go forward for 1 year, for a moratorium, while GAO does a study of the impact of privatization, and also so the Commerce Committee, chaired by the Senator from Arizona, can have hearings on that matter. But they want to be able to go forward with those things that are already underway.

The net result for the air traffic controllers and for other unions within the FAA would be a 1-year moratorium. However, where there is an ongoing A-76 study, that would not be stopped. Now I am being told maybe even that is not enough. I ask, how much is enough?

This is very important legislation that affects the economy of the country and this industry. Are we going to let 1 or 2 groups decide we will not have this $60 billion bill unless they get some guarantee on something that is not going to happen, anyway? I don't believe that is reasonable. I think we need to go forward and have this vote. Let the American people see who wants to be of assistance to aviation, who really wants to have safety in the skies.

Let me say to all of my colleagues on both sides of the aisle, be careful how you vote because this legislation provides funds for security at airports. It changes who pays for the security costs and where that money would go. The AIP, airport improvement program, which was used for $500 million in security costs over the last couple of years would not continue to be used for that purpose. It would go back to being used for what it was originally intended--improvements at terminals, runways, and aprons, but there would be a dedicated line of money that would go to security. If you vote against this legislation, and it continues to drag out indefinitely, and we don't get these security funds to the proper place they are supposed to go-- particularly the airports--if we have another instance at an airport, or with the airline industry, I would not want to be on record voting against this very important legislation that has been developed over a long period of time, in a bipartisan way.

Yes.

Mr. President, I say to the distinguished chairman of the subcommittee he has put his finger right on the heart of the problem. There are funds that would not go out for security and airport improvement if we don't pass this legislation. The alternative would just be to extend the current law for, I don't know, 6 months. The Senator is right that in that case the status quo is in place. As a matter of fact, any privatization efforts that might be underway or they want to do in that period could go forward. We had worked it out where we had language both in the conference report and in a letter that would say there would not be privatization of the air traffic control system.

Finally, even other parts of the FAA would get a 1-year moratorium. This is the classic example of where my colleagues in the Senate-- Democrats--seem to be hopelessly pursuing where the last rose lingers. We have a whole bouquet in this bill. It is good for the American people. It is going to be good for the industry and it will create jobs. We are looking for this one last thorny rose we can claim and say, well, we got it done. I note the House has already passed this legislation and we are, I assume, sometime in the next month going to complete our session of this year. We need to get this done. It would be very positive for the industry and for the Congress for us to go ahead and complete this action.

The Senator is absolutely right. The alternative, if we don't pass this legislation, is the status quo, which would allow the administration to do whatever they please in terms of privatization under legislation Congress has previously passed.

I will make one other note. On this idea of contract towers, there are mixed emotions on both sides of the aisle. It is not a Republican or Democrat thing. But there have been hundreds of these contractors put into place. Usually, they are supported by local congressmen and senators--and, by the way, it is an idea that really exploded and was used extensively during the Clinton administration. I am not being critical. In many cases, it makes common sense. In many communities, if you don't have the contract towers, you would not have anything.

For the life of me, I cannot understand why we haven't been able to bring this to conclusion. I think it is time to vote and see who is for getting this legislation done and who wants to preserve the status quo, I guess, or have nothing, which would hold up funds to the tune of billions for security and improvements at our airports.

Since the chairman is here, and I know Senator Lautenberg is waiting

to speak, I will reserve the remainder of my time. We will claim more time after Senator Lautenberg has had a chance to speak.

I yield the floor.

Mr. President, on the time of the Senator, I am glad to respond.

I will give the Senator a direct answer. Senator Stevens indicated that is what he wanted. I understand there are extenuating circumstances with those two areas in Alaska. That varies from State to State. In some States, they want contract towers for a particular site, and in others not. I agree with the Senator on that. I think we should not have excluded them.

Mr. President, for the sake of a flow back and forth, I yield 5 minutes of our remaining time to the chairman of the full committee.

I yield 5 minutes to the Senator from Arizona.

Mr. President, before he leaves the Chamber, I thank the Senator from West Virginia for his work on the Commerce Committee, and specifically for his work and his cooperation on the development of this legislation, both at the subcommittee and full committee level and here in the Chamber of the Senate, and also for the tone of his remarks. He wants to get this done and that is the attitude we should all have. In fact, that has been my goal. I am trying to find a way we can get a bill completed that has $60 billion in it, billions of dollars for security for our airports and for the airline industry as a whole and that the President will sign.

Is this about trying to win the point--the congressional position will prevail and the President's position will prevail? How about finding a position we can both live with? That is, fortunately or unfortunately, how it works sometimes in a legislative body. That has always been my attitude. I am not interested in making statements. We came here to get things done. We need to get this legislation completed. That is why we have been working feverishly to try to come to a conclusion.

With regard to contract towers, we have one in Tupelo, MS. It works fine.

I believe the record will show that the Senator from New Jersey has over the years supported the concept of contract towers. As a matter of fact, when he was chairman of the Transportation Appropriations Subcommittee, in 1994, the number of contract towers grew from 14 in 1987 to 59 at the end of 1994--an increase of 300 percent while he was subcommittee chairman.

I repeat again something I said: This is not a Republican idea. I am not even sure it is a Democrat idea. But it is an idea that was used effectively during Democratic administrations and Republican administrations.

The 1994 Senate report says:

In light of the recent recommendations in the ``Report of

the National Performance Review'' which calls for converting

level I control towers to contract operations, the Committee

has provided an additional $1 million above the amount

requested for this program.

That was in the Transportation Appropriations Subcommittee report in 1994.

Here is the most important language from the subcommittee chairman, Senator Lautenberg.

The Committee believes this public/private sector program

(contract towers) has provided significant safety and

economic benefits to smaller communities at a reduced cost to

the Federal Government since its inception in 1982. The

Committee urges FAA to expand the programs where appropriate.

Now, all of a sudden, contract towers are something really heinous. What is the difference in 1994 and 2003? We have done a lot more--I think over 200 of them. I think most of them work just fine.

I do not know. We are doing a little revisionist history here.

I emphasize this: There is no language in this conference report that would identify contract towers for Alaska, in or out. We took that out. It is not here.

We also had language in the conference report that said we would not have privatization of the air traffic control system.

Declare victory? Oh, no. That was a problem because it didn't apply to all parts and all unions involved in FAA.

That is what this is really all about. It is about making sure that every one of the unions that are involved in the Federal Aviation Administration are excluded.

Again, we are, I guess, looking for the perfect here. All the talk is about air traffic controllers, but as a matter of fact, it involves the Federal Flight Weather Service people, it involves maintenance, it involves everybody.

We can't have privatization of any part of the FAA, would be the attitude of some. I just do not understand that language here.

So it is very important that we realize what is actually in this conference

report and what is not. My guess is, Can you accept victory? Can you accept victory? The administration has said they will put it in writing; they would have supported it in legislation; no privatization of air traffic control systems.

I ask the Senator from New Jersey. He addressed a question to me. I address a question to the Senator from New Jersey. Will he accept a commitment of a 1-year moratorium of no privatization of the air traffic controllers?

That is my point.

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

Mr. President, I yield whatever time remains to Senator McCain who will wrap up. Any time he doesn't use I would like to retain.

I ask unanimous consent that the letter to which Senator McCain referred a moment ago from administrator Marion C. Blakely be printed in the Record.

Let me read from part of that letter. She acknowledges the letter the bipartisan group sent her last week, dated November 13, regarding contracting out functions performed by the Federal Aviation Administration employees.

It is unfortunate that the recent debate on FAA's pending

reauthorization bill, Vision 100--the Century of Aviation

Reauthorization Act has led to some confusing maintaining the

status quo of FAA's Contract Tower Program with privatizing

our nation's air traffic control system. Let me be absolutely

clear: The Administration has no plans to privatize the

nation's air traffic control system.

I welcome and respect the Committee's duty to perform

oversight of the FAA. I look forward to participating in the

hearings you describe, as there are many misconceptions as to

the FAA's plans with respect to competitive sourcing that I

would like to correct. In the meantime, if the legislation is

enacted in its current form, you have my commitment that

during the current fiscal year the FAA will not contract out

any air traffic separation and control function currently

performed by the FAA. Further, during that period, the FAA

will not convert any Visual Flight Rule (VFR) tower to a

contract tower.

What more can you ask? This is a letter from the Administrator, responding to our letter assuring us of those things we have been asking. They are not going to contract the air traffic control system, and they are not going to convert the visual flight rule tower to a contract tower.

I urge my colleagues, for the safety of the American people, for the importance of jobs in the economy, to vote for cloture. Let's pass this legislation and move it to the President for his signature.

Have the yeas and nays been ordered?

I yield the floor.

cloture motion

Parliamentary inquiry, Mr. President: I believe there will now be another hour, 30 minutes to the Republican side of the aisle, followed by 30 minutes to the Democratic side of the aisle.

Under that agreement, I am glad to yield such time as he may consume to the distinguished senior Senator from my great State of Mississippi, Mr. Cochran.

Mr. President, I thank my distinguished colleague from Mississippi for his comments. He has

shown, once again, he is a student of the Constitution and of the law. I hope our colleagues found his speech to be informative, and I keep hoping and praying that there will be a change of heart and mind in how we deal with this issue.

Mr. President, the debate that has been taking place for nearly 24 hours is the culmination of 9 months of obstructionism by a minority of Senators who have subverted the Constitution's advice and consent provisions and undermined the very fundamental tenets of democracy.

It is an elementary principle of democratic government that the majority determines the outcome of political questions. Certainly the minority has a right to state it's case and have input into the issues. But at the end of the day, when the final decision is at hand, a majority decides the outcome.

Yet in the 108th Congress we have seen an unprecedented attack on this core principle of democracy. Instead of majority rule as our governing principle, we have the rule of the minority. Four nominees to the Courts of Appeal are supported by a clear majority of Senators. Yet a minority of Senators refuses to allow the Senate to vote on these nominations.

The Founding Fathers well recognized the dangers inherent in granting a minority a veto over the will of the majority. James Madison, in Federalist 58 pointed out that the Constitutional Convention explicitly rejected the idea that Congress be required to adopt a supermajority quorum to transact business. He warned that the ``fundamental principle of free government would be reversed,'' if we allowed a minority to overrule the majority.

Why is majority rule the ``fundamental principle of free government?'' Simply stated, Mr. President, if the will of the majority is not the prevailing principle, then it is legitimate for one person, whether a king, or autocrat, to determine the fate of political society. Our Founding Fathers rejected that idea and all of American society has rejected that concept since 1776.

Unfortunately, what we have witnessed over the past 9 months in connection with the nominations of Miguel Estrada, Priscilla Owen, William Pryor, and Charles Pickering is a hijacking of the Senate's constitutional responsibility to advise and consent on the President's nomination and to accept the idea of majority rule.

A minority of Senators have literally rewritten the Constitution to engraft a supermajority rule into the confirmation process, a requirement that completely contradicts the intent, spirit and language of the Constitution.

The Founding Fathers believed there were a few extraordinary instances where supermajorities are necessary and they spelled them out in the Constitution: Ratification of a Treaty; override of a presidential veto; conviction in a case of impeachment; passage of a constitution amendment; and expulsion of a Member.

Amendments to the Constitution have added two other supermajority requirements--one, a post-Civil War disqualification rule for serving in Congress; and another regarding a determination of whether a President is disabled.

But now a minority in the Senate has effectively rewritten the Constitution to demand a supermajority vote on some Presidential nominations. That completely contravenes the Constitution.

When the members of the Constitutional Convention considered the appointment power, they first debated placing the appointment power in the Senate. However, that idea was rejected because the members of the Convention believed the Senate was ``too numerous and too little// personally responsible, to ensure a good choice,'' according to Madison.

The convention also considered giving the President the sole authority of appointment. In an effort at compromise, Madison suggested that the power of appointment be given to the President with the Senate able to veto the choice only if two-thirds of Senators opposed the nomination. Ultimately, the Convention allowed for a simple majority vote on the President's nominations.

The Founders were so confident that the power of judicial appointment is primarily an executive function that they wrote into the Constitution a provision that allowed Congress to pass a law giving the President exclusive authority to appoint all judges below the Supreme Court. In addition, the President was granted the power to make temporary appointments when the Senate is in recess.

You can search the historical record and not find a single shred of evidence to suggest that the Framers of the Constitution ever envisioned a scenario where a minority of the Senate could cause the rejection of a Presidential nominee. But that is exactly the situation we face today.

On 7 different occasions, as many as 55 of 100 Senators voted in favor of ending debate on the nomination of Miguel Estrada. But the minority obstructing his nomination refused to allow an up or down vote and ultimately Mr. Estrada withdrew his nomination.

Fifty three Senators voted to end debate on the nomination of Priscilla Owen. But the minority refused to allow an up or down vote.

Fifty three Senators voted to end debate on the nomination of William Pryor. Again, the minority refused to allow an up or down vote.

And just 2 weeks ago, a majority of 54 Senators voted to end debate on the nomination of Charles Pickering. And once again, the minority prevented us from bringing this vote to a conclusion.

This undemocratic obstructionism threatens to destroy the integrity of this institution.

I have heard it said by some who are blocking the President's nominations, that there is nothing wrong with the confirmation process. They say we've confirmed 168 of the President's nominees; why is there a problem just because we block four nominees? 168-4 is a pretty good record, they say.

I would like to bring to the Senate's attention another statistic: The number of President Clinton's judges that were blocked by Senate filibusters. 0. No a single Clinton nominee who was brought to the floor was blocked by a filibuster.

Cloture petitions were filed on 5 of President Clinton's nominees. But every single one of those nominees was given a straight up or down vote. Every one of them. So if we are comparing records, here is the record that matters: Four of President Bush's nominations blocked by filibuster and none of President Clinton's nominees blocked by filibuster.

This is not baseball or basketball; this is the responsibility of the Senate to live up to its Constitutional responsibilities. And what a minority of Senators have done is to create a double standard for judicial nominations. They say for some judges, we accept the constitutional mandate of a majority vote. But for other nominees, we have created an extra-constitutional higher standard.

For nominees Miguel Estrada, Priscilla Owen, William Pryor, and Charles Pickering, a constitutional majority is not good enough. You have to garner a supermajority.

That's a standard that is not fair, yet that is precisely what a group of Senators in the minority have demanded. And as a result, they are failing to fulfill their constitutional responsibility to provide advice and consent.

For those who say there is nothing wrong with the confirmation process, I say look at this chart.

Up until 1968 there was never a filibuster of a judicial nominee. In some instances, cloture was filed twice and even when cloture was not invoked, every single nominee whose name had not been withdrawn was given an up or down vote.

We have had an unprecedented 7 cloture votes on Miguel Estrada and 3 on Priscilla Owen. In both cases, a majority of the Senate voted in support of the nominees. But a minority of Senators refuse to give these nominees straight up or down votes as required by the Constitution.

I believe that establishing a rule that if a nominee cannot garner a supermajority of 60, the nominee will not be entitled to a vote is a very dangerous precedent that will haunt this chamber for decades to come.

We have never in 214 years established such a rule. Even in the case of the most controversial nominees in recent memory--Robert Bork and Clarence Thomas--the Senate carried out its constitutional responsibility by giving each of them an up or down vote.

In June, I chaired a Rules Committee hearing on judicial nominations where one of the witnesses claimed that in the 19th Century, there were several instances where a minority of Senators prevented the Senate from considering judicial nominees. I would like to take a few moments to clarify the record on this issue.

In December, 1828, lame duck President John Quincy Adams nominated John Crittenden to the Supreme Court. In February 1829, a month before Andrew Jackson was to be sworn is as President, the Senate voted 23-17 to postpone the nomination until Jackson came into office. Clearly, in this instance a minority was not blocking the will of the majority.

In June, 1844, President John Tyler nominated Ruben Walworth and Edward King to fill Supreme Court vacancies. The Senate, by votes of 27-20 and 29-18, voted to postpone the nominations. After Tyler was defeated in the 1844 election, he resubmitted the Walworth and King nominations. The Senate refused to vote on the nominations submitted by the lame duck.

John Meredith Read was also nominated by lame duck President Tyler. A month before Tyler's successor was to be sworn into office, the Senate voted to adjourn rather than consider the Read nomination. Obviously, the will of the majority was not thwarted by the minority when the Senate voted to adjourn.

In the summer of 1852, President Millard Fillmore nominated Edward Bradford to the Supreme Court. The nomination was made just before the Senate was already planning to adjourn. It adjourned before considering Bradford's nomination. When the Senate reconvened, Franklin Pierce had won the 1852 Presidential election. And Fillmore did not renominate Bradford.

Instead, in early 1853, lame duck Fillmore nominated George Badger to the Supreme Court. The Senate voted 26-25 to postpone consideration of Badger's nomination. Fillmore then nominated William Micou, but the Senate refused to act on the lame duck nomination. There is no evidence that a majority supported Micou.

Finally, Mr. President, in January 1881, the lame duck President, Rutherford B. Hayes, nominated Stanley Matthews to fill a vacancy on the Supreme Court. The nomination never was reported from the Judiciary Committee. When President Garfield took office in March, he renominated Matthews. After 2 months of debate, Matthews was confirmed by a vote of 24-23.

I have taken the Senate's time to provide details of these 19th century nominations to make the point that there is no evidence that any of the controversial justices nominated in those years was blocked by a minority of Senators.

In every instance, a majority voted to delay or defer consideration. And in most of these instances, they involved nominations made after a sitting President was defeated for re-election. They have absolutely no relationship to the situation that has confronted President Bush throughout this year.

As my colleagues are well aware, historically, the Senate has demonstrated a great reluctance to tamper with the Rules that govern this body, especially the rules that govern debate. However, when a minority of Senators have repeatedly abused the filibuster, the Senate has acted to change its rules.

After a minority of Senators blocked efforts to have an up or down vote on a proposal to arm merchant ships during World War I, the Senate adopted its first cloture rule. The cloture rule was larger changed in 5 separate occasions, most recently in 1986.

The last attempt to change the cloture rule occurred in 1995 when Senators Harkin and Lieberman proposed a cloture rule nearly identical to the majority leader's proposal, but broader in scope because it applied to legislation as well as nominations. On a motion to table, that effort failed by a vote of 76-15.

I voted against that proposal because I agreed with Senator Byrd that the biggest abuse of the filibuster had occurred in connection with Motions to Proceed and that the Rules of the Senate, in particular Paragraph 2 of rule VIII, provided an adequate remedy to address this problem.

However, it has become apparent that there is no remedy in the current Senate rules to address the obstructive practices of a minority of Senators to block Presidential nominations. And that is why I cosponsored the majority leader's resolution, S. Res. 138. This resolution was reported favorably from the Committee on Rules on June 26, of this year.

The majority leader's resolution that will return the advice and consent responsibility to what the founding fathers intended. Our resolution would give the opponents of a nomination more than a fair opportunity to express their reasons for opposing a nominee. But it would not allow a minority of members to avoid their constitutional responsibility to have a final yes or no vote on a nomination.

Under our approach, cloture on a nomination could not be filed until the Senate has considered the nomination for at least 12 hours. On the first cloture vote, 60 votes would be necessary to invoke cloture. On a second vote, cloture could be invoked by 57 votes. If a third vote was necessary, 54 votes could bring cloture. And if a fourth cloture vote was necessary, then, and only then, a majority of Senators voting and present would be all that is needed to invoke cloture.

What our proposal does is give the opponents of a nomination 12 hours to first express their opposition. And then they will have as many as 8 days to speak against a nomination. And then, if cloture is invoked on the fourth cloture vote, the opponents will still have 30 hours in which to speak.

In other words, Senators would have as many as 234 hours to speak for or against any Presidential nomination. I think that is more than enough time for the Senate to fully consider a President's nominations.

The Republican cosponsors of this resolution are making a very simple statement--no matter whether the occupant of the White House is a Republican or a Democrat, we believe that a nominee reported from committee is entitled to a confirmation vote on the Senate floor.

We believe it is unconscionable and constitutionally infirm for a minority of Senators to have the capacity to prevent the Senate from carrying out it's advice and consent functions.

Filibusters by a minority of members to prevent a vote on a nomination should have no place in the Senate. Whether a cabinet choice, a district court judge or a Supreme Court Justice, Presidential nominees are entitled to a vote. That is what the founding fathers anticipated and that is what our resolution would achieve.

I would prefer that we could break this impasse without changing Senate Rules. But if this action stands, if a minority of Senators can obstruct the will of the majority and prevent the President's nominees from having a vote, the Rules of the Senate must be changed.

I wish to talk about how I feel personally touched and involved in what we are dealing with here.

In my 15 years in the Senate in a variety of positions as a new Member, as a member of the leadership, both as secretary of the conference and as whip and leader, I have experienced a lot of what has gone on with confirmations personally and firsthand. I have been involved in a lot of them.

I must say, without it being aimed at just one party or the other, this process has been on a slippery slope down that whole time. I believe it goes back to the nomination of Judge Bork before I actually got to the Senate. The pattern continued with John Tower who was nominated to be Secretary of Defense in my first year in the Senate, and it continued to slide down with the nomination of Justice Clarence Thomas. And throughout the Clinton years, we had difficulty in this area.

I just wonder how much further downward can it go. I think we have reached the bottom. We are trying now to abuse the rules of the Senate, to ignore the Constitution, and set in place a new precedent to block good, qualified men, women, and minorities to the Federal judiciary. We have to stop it. We should stop it here and begin to go back up into a more positive approach in how we deal with Presidential nominees.

I was involved with President Clinton's first Cabinet. I was selected by then-minority leader Bob Dole to work through the nominations and see if there were problems. As a matter of fact, I want the record to show that we

confirmed every one of his nominees by the day he was inaugurated. It was not easy. Some nominees had some problems. We got the job done. He was the President. These were his Cabinet selectees. They deserved to be confirmed.

During my years as majority leader, we had a lot of discussions back and forth over how the process worked, how judicial nominees were treated when they got to committee, and when they got to the floor. I remember a lot of those debates. I remember the Senator from Maryland was involved in those debates in March and in December of 1997. I didn't always like the process. I wasn't always proud of how we treated these nominees. But I will tell you this: On my watch, not one Clinton nominee was filibustered. Zero. None.

If you want to use the numbers game--this is not baseball or basketball, but that is an important statistic--during the Clinton years, from 1993 to 2001, no judge was defeated by a filibuster. By the way, it was attempted a few times. I had to file cloture several times, but usually we were able to set it aside and, in every instance, we confirmed the nominee.

On one occasion, I remember late in the afternoon--actually the Senate voted not to invoke cloture, not to cut off the filibuster on a judge--I took this spot in the Senate and said we cannot let that stand. Senator Orrin Hatch, chairman of the Judiciary Committee, said the same thing. And before the night was over, we backed away from that position. Zero in the Clinton years; 4 already in the Bush years.

It has been just this year that this new abuse of procedure has started--the American people understand that. The American people understand there is something innately unfair about dragging out an up- or-down vote on these men, women, and minorities. So four already, and at least two more are threatened.

I don't know where it is going to end, but I do think that it is important the people understand this is not insignificant. This is very important. We are about to set this precedent, something the Senate did not do before this year. We did not do it in the 214-year history of this country, and now we are about to set this new precedent.

What do my colleagues on the other side of the aisle think is going to happen if the tables are reversed? What if there should be in some far off, distant future time a Democratic President and a Republican majority? Do they think if this precedent has been set that the tables won't be turned and there won't be filibusters of liberal judges on the other side? I will be opposed to that if I am here, as I have been in the past.

That is another number we ought to look at: 214 years, and no judges were defeated by a filibuster. I feel very personal about this point. I have gone back, in addition to looking at the number of years, and looked at occasions when there were attempted filibusters, when Presidents late in their terms made nominations and there were subsequent votes. I want to show you the list of what has happened over the years where there have been attempted filibusters.

This shows what happened in 1968, 1971, through the eighties and nineties. We can see there were some attempted filibusters, and cloture motions to cut off this extended debate were filed. But in every case but one, they were all confirmed. Justice Fortas, in 1969, had his nomination withdrawn by President Johnson when it was revealed that he did have some serious ethical problems.

Over all these years, even though there were filibusters and cloture motions, they were all confirmed. There are a couple of nominations on this chart about which I feel very strongly.

There was an attempt to hold up in a variety of ways two nominees to the Ninth Circuit Court of Appeals--Richard Paez and Marsha Berzon. Their filibusters were offered. I had great concerns about these judges, but I voted against the filibusters. I voted to invoke cloture, and they went to a straight up-or-down vote. I voted against them, but they were confirmed.

I was under intense pressure to not let that happen, but I refused to let that precedent be set on my watch because I didn't think it was fair at all.

I also feel personally and, I admit, emotionally involved because of the very unfair treatment that Judge Charles Pickering of Mississippi received over the last 2\1/2\ years. This is a good man, a good judge. He has had his reputation besmirched. This is a man who was confirmed unanimously by the Senate 13 years ago. Now he is being filibustered by the Senate. It is so unfair.

I hear a lot of talk about the human aspects of unemployment. What about the human aspects that these men, women, and minorities have had to go through? Their career is in limbo. They don't know whether they should stay with their law firm, stay on a State supreme court; are they going to be confirmed; how do they explain, how do they answer questions from the press? They have a very personal problem, too.

In the limited time we have, I don't want to just complain about what is going on here, I want to talk about the solution, how we get out of this situation, how we get off this limb onto which we have worked ourselves. We know this is wrong. Both sides of the aisle know this is wrong, and there has to be some concern about what the long-term impact will be. It has contributed to the overall atmosphere we are now dealing with in the Senate.

Here is what we can do. First of all, we can bring up the nominations of these good people. Justice Owen from Texas is a brilliant, impressive woman on the Texas Supreme Court. She is being filibustered. Why? Is she not qualified? Does she not have the proper education? Does she not have impressive credentials in her experience? Is she not sitting on the highest court in Texas? What is the problem?

The answer is that she is a conservative woman, that is all, a mainstream conservative woman. They try to let on there is something wrong with her philosophy and how she has ruled. I looked at a lot of these rulings. This is an eminently qualified woman. Yet she is being blocked by a filibuster. How do we get out of this situation? First of all, we try to give our colleagues on the other side of the aisle an opportunity to stop doing this filibustering. We bring up nominations of the judges. Apparently, they are not going to stop. At the end of this week, we will probably have three men and three women, including minorities, all blocked by filibusters--Hispanic, African American, women, men, it doesn't make any difference. I don't understand what is happening here.

What do we do next? We have a debate like we are doing now. Some people say: Why are you doing this? The Federal judiciary has a huge influence in what happens in this country. So these lifetime appointments are very important. We are trying to put the American people on notice as to how dangerous this is and what is going on, and it is getting some additional coverage. People are now calling in and saying: I didn't know that was going on. Why are you doing this?

Give us an opportunity to highlight the unfairness and the precedent we are setting and allow the people to weigh in a little bit. That is step 2.

Step 3: As chairman of the Rules Committee, I worked with the majority leader, Bill Frist, and Senator Zell Miller of Georgia, and we came up with a process that could stop these filibusters. It is an elongated process, but one to which surely nobody could object.

After 12 hours of debate, we would have a cloture vote. It would require 60 votes. Then after a period of time, there would be a second vote. Fifty-seven votes would be required. A third vote would then occur with 54 votes required, and finally, only on the fourth cloture vote, would we get down to 51. We would have the 12 hours initially. Then we would have 30 hours after the fourth cloture vote to speak. All total, it could take as long as 234 hours. It is not a perfect process, but at least it is a process.

A similar proposal was made a few years ago by two current Senators on the Democratic side of the aisle. We should perhaps have a vote on that proposal.

Last but not least, at some point I feel very strongly we are going to have to make it clear through some process--and I won't go through it now--that says judges will be confirmed with 51 votes--only 51 votes. That is what the Founding Fathers intended. Senator Cochran made the historical point, and so have I. That is what it should be.

We can go back and vote on these nominees. They might not be confirmed, but I think the American people understand the fairness of voting them up or voting them down. Justice for judges. Do whatever the Senate's will is, but don't use a procedural technique requiring 60 votes to defeat these good men, women, and minorities.

This is an important issue. It is worth taking time to debate. I am very pleased we are debating this issue. I see Senator Sarbanes on the floor of the Senate. He has been on the House Judiciary Committee. I was on the Judiciary Committee with him way back in the seventies. He is a lawyer. He has looked at these issues. I know he has been involved in them. We have had some discussion back and forth over the years.

In March 1997, he rose on the floor of the Senate and spoke in support of the nomination of Merrick Garland to be on the district court. He said:

It is not whether you let the President have his nominees

confirmed. You will not even let them be considered by the

Senate for an up-or-down vote. That is the problem today. In

other words, the other side--

The Republicans--

will not let the process work so these nominees can come

before the Senate for judgment. Some may come before the

Senate for judgment and be rejected. That is OK. But at least

let the process work so the nominees have an opportunity and

the judiciary has an opportunity to have these vacant

positions filled so the court system does not break down

because of the failure to confirm new judges. . . .

These judges along the way were being slow-walked or they had problems or they got to the floor and we had other legislation we wanted to consider. We did not always get them up, but here is an important point: During that time I was the majority leader, we confirmed Merrick Garland. It happened. He got confirmed. He is on the bench today.

Senator Sarbanes was right, give them an up-or-down vote, and that is what we are calling for today.

I see Senator Graham of South Carolina is in the Chamber and prepared to speak. I may want to have a final statement later on today, but before I yield to Senator Graham, let me wrap it up this way: I plead with my colleagues in the Senate. This is not a good thing for us. It is not good for the institution. It is not good for our country. It is not good for our relationships. It is not good in terms of getting our work done and making sure we have a judiciary that is occupied by good men and women.

We should stop rejecting these judges just on the basis of their philosophy. I voted for Justice Ruth Bader Ginsburg. I knew I would not agree with her decisions. I did not agree with her philosophically across the board, but by education, demeanor, qualifications, and experience, she should have been confirmed. I voted for her. I ask no less of my colleagues on the Democratic side of the aisle.

Let's stop this, and then let's get back to making sure we pass energy legislation, pass aviation legislation, get a prescription drug plan for our elderly people. This discussion is not delaying that. Work is being done on it right now. We can get this process corrected and then we can pass these substantive bills.

I yield the remainder of my time to the Senator from South Carolina.

I object.

Reserving the right to object, I ask consent that the Senator modify his request so that just prior to proceeding the requested 3 cloture votes be vitiated and the Senate immediately proceed to three consecutive votes on the confirmation of the nominations, with no intervening action or debate.

Does the Senator object to the modification?

In view of that, I object.

Mr. President, I rise to day to introduce, along with my colleagues Senator Smith from Oregon,

the multiemployer Pension Plan Procedural Fairness Act of 2003. The purpose of this legislation is to provide a modest amount of procedural fairness with respect to claims filed against former employers under the multiemployer pension plan (MEPPA) rules.

By way of background, MEPPA makes an employer that completely or partially withdraws from participation in a multiemployer pension fund liable for the employer's share of the plans' unfunded vested benefits. That liability is referred to as ``withdrawal liability'' and can be collected from any member of the controlled group of employers that included the withdrawing employer. The process of collecting withdrawal liability can become quite unfair when the pension fund attempts to assert liability against a former employer or a former member of a controlled group of employers that, as a result of a legitimate business separation, such as a sale or spin-off transaction, ceased to be associated with the withdrawing employer several years before the compete or partial withdrawal occurred.

MEPPA provides that a former employer or former member of a controlled group can still be liable if ``a principal purpose'' of the business separation transaction was ``to evade or avoid'' withdrawal liability. The legislative history indicates that the ``evade or avoid'' provision was designed to prevent unscrupulous employers from dumping a distressed subsidiary in order to evade or avoid withdrawal liability. I firmly believe that unscrupulous companies that attempt to evade withdrawal liability should be held liable. However, companies that engage in legitimate transactions should be able to defend against withdrawal liability claims that arose from events which occurred many years after the business separation.

The simplest way to understand the issue is with an illustration. Assume that a parent company operates a subsidiary that makes contributions to a multiemployer plan. Assume further that, for valid business reasons, the parent company disposes of the subsidiary via a bona fide ``spin-off'' transaction. At the time of the spin-off, the subsidiary was current on all of its required contributions to the multiemployer pension fund, and the subsidiary continues to make contributions to the multiemployer plan after the spin-off. To complete the example, assume that several years after the spin-off, the spun-off subsidiary goes out of business and ceases to make contributions to the multiemployer pension fund. Under this scenario, the MEPPA rules allow the pension fund to claim that a principal purpose of the transaction was to evade or avoid withdrawal liability. Because the MEPPA rules do not provide any time restrictions for making these claims, a former parent company may be forced to defend against such a claim years, if not decades after the transaction in question. By contrast, the single- employer plan rules provide a 5-year safe harbor rule that protects employers against such claims.

While multiemployer plans should certainly be able to pursue claims against unscrupulous employers, there are two procedural rules in MEPPA that severely and unfairly hinder an employer's ability to defend itself against a claim for withdrawal liability under the evade or avoid standard when the transaction in question occurred several years before the date of a complete or partial withdrawal. The first rule is referred to as the ``pay to play'' rule, and the second rule involves the burden of proof borne by the employer.

Under MEPPA, if the pension fund makes a claim for withdrawal liability against the former parent company under the ``evade or avoid'' standard, the claim is sent to arbitration. However, the parent company must begin making payments to the multiemployer pension plan within 60 days after receiving a demand solely based upon the plan's unilateral decision to assert a withdrawal liability claim and long before any neutral third party finds that ``a principal purpose'' of the challenged transaction was to ``evade or avoid'' withdrawal liability. As a result, a company that engaged in a bona fide business transaction many years before the withdrawal occurred is forced to begin paying on the claim based on nothing more than the plan's demand.

According to the legislative history, this unique ``pay to play'' rule was enacted in response to what Congress perceived to be inefficient, cumbersome and costly procedures for collecting delinquent contributions from employers. Simple collection actions were converted into complex litigation through defenses that were unrelated to the multiemployer plan's entitlement to the contribution. However, the relevant MEPPA language is not limited to collection actions. While it may be appropriate to require a contesting employer to commence payments while the claim is being litigated, it is not fair to require prepayment in the case of an ``evade or avoid'' claim when the transaction in question occurred many years before the complete or partial withdrawal occurred.

The second procedural unfairness involves the burden of proof that an employer faces in rebutting a claim under the ``evade or avoid'' standard. MEPPA provides that a plan sponsor's determination is presumed correct, unless the contesting party shows by a preponderance of evidence that the determination is incorrect. The impetus behind Congress's decision to include such a presumption was the need to avoid a perceived potential for conflict and delay over the soundness of actuarial determinations of liability. Specifically, the presumption was crafted in order to prevent ``the likelihood of dispute and delay over technical actuarial matters with respect to which there are often several equally `correct' approaches. Without such a presumption, a plan would be helpless to resist dilatory tactics by a withdrawing employer--tactics that could, and could be intended to, result in prohibitive collection costs to the plan.'' However, the MEPPA presumption language is not limited to actuarial determinations, but reaches liability determinations as well.

Even if this presumption is appropriate when withdrawal liability is triggered shortly after a transaction occurs, it is unfair to apply the presumption when the transaction in question occurred several years before the withdrawal took place. In this situation, a company that engages in a bona fide transaction may be forced to prove a negative-- namely that a principal purpose of a transaction that occurred many years ago was not to evade or avoid withdrawal liability.

To summarize, under the MEPPA rules, an employer may find itself in a position where it has to respond to claims regarding a legitimate business transaction that occurred many years earlier. Furthermore, in defending against the claim, the employer must 1. prove that a principal purpose of the transaction was not to evade or avoid withdrawal liability, and 2. prepay the contested amount of the liability well in advance of any final determination of liability. This is patently unfair. Our legislation is a modest attempt to inject some notions of procedural fairness in this situation.

Our bill does not change the present-law rules regarding the determination of liability with respect to a complete or partial withdrawal from a multiemployer pension plan. However, it does change the procedural rules applicable to such a determination, but only with respect to a transaction that occurred five years or more before the date of the complete or partial withdrawal.

Under our bill, when a determination of an employer's withdrawal liability is based on a finding by the plan sponsor that a principal purpose of a transaction was to evade or avoid liability, and the transaction in question occurred five years or more before the date of the complete or partial withdrawal, the following rules would apply: 1. the determination by the plan sponsor is not presumed to be correct, and the plan sponsor has the burden to establish, by a preponderance of the evidence, each and every element of the claim for withdrawal liability, and 2. if an employer contests the plan sponsor's determination either through arbitration or through a claim brought in court, the employer is not obligated to make any withdrawal liability payments until a final decision in the arbitration, or in court, upholds the plan sponsor's determination. Our bill would apply to any employer that receives a notification after October 31, 2003.

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

Mr. President, I rise to day to introduce, along with my colleagues Senator Smith from Oregon,

the multiemployer Pension Plan Procedural Fairness Act of 2003. The purpose of this legislation is to provide a modest amount of procedural fairness with respect to claims filed against former employers under the multiemployer pension plan (MEPPA) rules.

By way of background, MEPPA makes an employer that completely or partially withdraws from participation in a multiemployer pension fund liable for the employer's share of the plans' unfunded vested benefits. That liability is referred to as ``withdrawal liability'' and can be collected from any member of the controlled group of employers that included the withdrawing employer. The process of collecting withdrawal liability can become quite unfair when the pension fund attempts to assert liability against a former employer or a former member of a controlled group of employers that, as a result of a legitimate business separation, such as a sale or spin-off transaction, ceased to be associated with the withdrawing employer several years before the compete or partial withdrawal occurred.

MEPPA provides that a former employer or former member of a controlled group can still be liable if ``a principal purpose'' of the business separation transaction was ``to evade or avoid'' withdrawal liability. The legislative history indicates that the ``evade or avoid'' provision was designed to prevent unscrupulous employers from dumping a distressed subsidiary in order to evade or avoid withdrawal liability. I firmly believe that unscrupulous companies that attempt to evade withdrawal liability should be held liable. However, companies that engage in legitimate transactions should be able to defend against withdrawal liability claims that arose from events which occurred many years after the business separation.

The simplest way to understand the issue is with an illustration. Assume that a parent company operates a subsidiary that makes contributions to a multiemployer plan. Assume further that, for valid business reasons, the parent company disposes of the subsidiary via a bona fide ``spin-off'' transaction. At the time of the spin-off, the subsidiary was current on all of its required contributions to the multiemployer pension fund, and the subsidiary continues to make contributions to the multiemployer plan after the spin-off. To complete the example, assume that several years after the spin-off, the spun-off subsidiary goes out of business and ceases to make contributions to the multiemployer pension fund. Under this scenario, the MEPPA rules allow the pension fund to claim that a principal purpose of the transaction was to evade or avoid withdrawal liability. Because the MEPPA rules do not provide any time restrictions for making these claims, a former parent company may be forced to defend against such a claim years, if not decades after the transaction in question. By contrast, the single- employer plan rules provide a 5-year safe harbor rule that protects employers against such claims.

While multiemployer plans should certainly be able to pursue claims against unscrupulous employers, there are two procedural rules in MEPPA that severely and unfairly hinder an employer's ability to defend itself against a claim for withdrawal liability under the evade or avoid standard when the transaction in question occurred several years before the date of a complete or partial withdrawal. The first rule is referred to as the ``pay to play'' rule, and the second rule involves the burden of proof borne by the employer.

Under MEPPA, if the pension fund makes a claim for withdrawal liability against the former parent company under the ``evade or avoid'' standard, the claim is sent to arbitration. However, the parent company must begin making payments to the multiemployer pension plan within 60 days after receiving a demand solely based upon the plan's unilateral decision to assert a withdrawal liability claim and long before any neutral third party finds that ``a principal purpose'' of the challenged transaction was to ``evade or avoid'' withdrawal liability. As a result, a company that engaged in a bona fide business transaction many years before the withdrawal occurred is forced to begin paying on the claim based on nothing more than the plan's demand.

According to the legislative history, this unique ``pay to play'' rule was enacted in response to what Congress perceived to be inefficient, cumbersome and costly procedures for collecting delinquent contributions from employers. Simple collection actions were converted into complex litigation through defenses that were unrelated to the multiemployer plan's entitlement to the contribution. However, the relevant MEPPA language is not limited to collection actions. While it may be appropriate to require a contesting employer to commence payments while the claim is being litigated, it is not fair to require prepayment in the case of an ``evade or avoid'' claim when the transaction in question occurred many years before the complete or partial withdrawal occurred.

The second procedural unfairness involves the burden of proof that an employer faces in rebutting a claim under the ``evade or avoid'' standard. MEPPA provides that a plan sponsor's determination is presumed correct, unless the contesting party shows by a preponderance of evidence that the determination is incorrect. The impetus behind Congress's decision to include such a presumption was the need to avoid a perceived potential for conflict and delay over the soundness of actuarial determinations of liability. Specifically, the presumption was crafted in order to prevent ``the likelihood of dispute and delay over technical actuarial matters with respect to which there are often several equally `correct' approaches. Without such a presumption, a plan would be helpless to resist dilatory tactics by a withdrawing employer--tactics that could, and could be intended to, result in prohibitive collection costs to the plan.'' However, the MEPPA presumption language is not limited to actuarial determinations, but reaches liability determinations as well.

Even if this presumption is appropriate when withdrawal liability is triggered shortly after a transaction occurs, it is unfair to apply the presumption when the transaction in question occurred several years before the withdrawal took place. In this situation, a company that engages in a bona fide transaction may be forced to prove a negative-- namely that a principal purpose of a transaction that occurred many years ago was not to evade or avoid withdrawal liability.

To summarize, under the MEPPA rules, an employer may find itself in a position where it has to respond to claims regarding a legitimate business transaction that occurred many years earlier. Furthermore, in defending against the claim, the employer must 1. prove that a principal purpose of the transaction was not to evade or avoid withdrawal liability, and 2. prepay the contested amount of the liability well in advance of any final determination of liability. This is patently unfair. Our legislation is a modest attempt to inject some notions of procedural fairness in this situation.

Our bill does not change the present-law rules regarding the determination of liability with respect to a complete or partial withdrawal from a multiemployer pension plan. However, it does change the procedural rules applicable to such a determination, but only with respect to a transaction that occurred five years or more before the date of the complete or partial withdrawal.

Under our bill, when a determination of an employer's withdrawal liability is based on a finding by the plan sponsor that a principal purpose of a transaction was to evade or avoid liability, and the transaction in question occurred five years or more before the date of the complete or partial withdrawal, the following rules would apply: 1. the determination by the plan sponsor is not presumed to be correct, and the plan sponsor has the burden to establish, by a preponderance of the evidence, each and every element of the claim for withdrawal liability, and 2. if an employer contests the plan sponsor's determination either through arbitration or through a claim brought in court, the employer is not obligated to make any withdrawal liability payments until a final decision in the arbitration, or in court, upholds the plan sponsor's determination. Our bill would apply to any employer that receives a notification after October 31, 2003.

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