Max Baucus

Mr. BAUCUS

Mr. BAUCUS. Mr. President, for 4 years, Congress has failed to enact a comprehensive Energy bill. Today, however, I am confident we can change that record. The conference committee has assembled a well-balanced package. It is right for America. We should send it to the President's desk. The House and the Senate gave the conferees a difficult task. The House and Senate Energy bills took two very different approaches to tax policy. The two bills had very little in common. Thus, we could not include everything in both bills without busting our budget. Most of the provisions in the House bill promoted investment in traditional energy infrastructure. It favored pipelines, electricity lines, and oil and gas production. In contrast, the Senate bill--which I helped develop with my good friend Senator Grassley--advanced new technologies. It encouraged conservation efforts, improved energy efficiency, and expanded use of alternative fuels. Conference negotiations were hard fought. We made some tough decisions. But overall, the process was very positive. We kept within our budget, and we worked with a spirit of compromise and cooperation. The energy tax incentives that the conference has recommended take an evenhanded approach to an array of promising technologies. For example, the bill provides a uniform period for claiming production tax credits under section 45 of the Tax Code. This encourages production of electricity from all sources of renewable energy. The bill recognizes the value of coal and other traditional energy sources to our economy. It provides investment tax credits for clean- burning coal facilities and projects. It provides substantial tax incentives to facilitate much needed expansion of refinery capacity. And it promotes expansion of American energy delivery systems. The bill recognizes the need for a diverse energy portfolio, it fosters energy production from wind or coal in Montana to geothermal sources in California, and it will help create jobs by promoting domestic energy production. The bill also rewards energy conservation and efficiency. It includes incentives for energy-efficient homes, alternative fuel vehicles, and development of fuel cell technology. These incentives are environmentally responsible they reduce pollution, and they help improve people's health. These energy tax incentives are good for America. They will promote the delivery of reliable, affordable energy to consumers. They will help to create jobs through domestic energy production, and they make meaningful progress toward energy independence. I am proud of the bipartisan effort that produced the conference agreement. I encourage my colleagues to support this important legislation.

Mr. BAUCUS

Mr. BAUCUS. Mr. President, last year, the Senate passed significant legislation aimed at shutting down tax shelters. We ramped up disclosure requirements that make it easier for IRS to find those who promoted and invested in these deals. We greatly increased penalties. We made law firms and accounting firms responsible for their part in perpetuating this distasteful business. Another thing we did was to take a break on interest expense away from participants in listed transactions and those who fail to disclose a reportable transaction. Usually, if the IRS audits your tax return and doesn't tell you about any adjustments to your tax bill within 18 months after the return is filed, the interest on that tax bill stops. It stops until the IRS does tell you what you owe. It is called ``the 18 month interest suspension rule'' and became law so taxpayers wouldn't have to pay excessive interest if the IRS took a long time to figure out what they owed. But, people who get involved with tax shelters play hide and seek with the IRS. They hope the game lasts until the time for auditing a tax return has passed. This means that the IRS often doesn't know a taxpayer has bought into a tax shelter until well after 18 months has gone by. And, this problem is made even worse by those who sell the shelters. Promoters are supposed to keep a list of those who buy their shelters. The IRS can ask for the list--it's one way the IRS can find those who get into these bad deals. But, often the promoter won't turn that list over to the IRS right away. Once again, it is well after that 18 month mark before the IRS learns about the investment and can do the audit. It is not right that taxpayers benefit from this 18 month interest suspension rule when the delays are the result of their own hand. Taxpayers involved in deals that abuse our tax system should not benefit from their own fun and games. That is why we took the interest suspension break away from these taxpayers in last year's Jobs Act. But we only took it away for interest charges after October 3, 2004. Today, my good friend Chuck Grassley and I introduce a proposal that takes this one step further and eliminates the interest suspension break for interest charges on or before October 3, 2004. Why should these folks get any break when they have manipulated the system in the first place? The only exception is for taxpayers who have decided to take the IRS up on a published settlement initiative to unwind their transaction. Those taxpayers would continue to qualify for suspension of their accrued interest expense through the October 3 date. The IRS has found these settlement initiatives are a useful way to get these old cases resolved and off the table. I think we should help this process along so the IRS can deal with other aspects of the tax gap. Our proposal also will plug up another unintended loophole in the interest suspension rules. Earlier this year, the IRS ruled that taxpayers filing amended returns showing a balance due more than 18 months after the original return was filed were also entitled to interest suspension--this applies to all taxpayers, not just those with tax shelters. Since the IRS wouldn't have any way of knowing these taxpayers even owed more tax, it doesn't make sense to give them a break on interest charges. Over the past several years this country has experienced a scourge of tax shelters. With hard work, we have come a long way in our fight against them. We must be relentless in our quest to wipe them out. We need to remove any incentives that might encourage people to get into these abusive deals. Our proposal is one more blow in our fight to maintain fairness and integrity in our system of tax administration. We request your support for this bill. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. BAUCUS

Mr. BAUCUS. Mr. President, I rise to address an issue of critical importance to my constituents in Montana. Early this morning, in the dead of night, the House of Representatives took an extraordinary action to delete a commonsense provision in the transportation conference report that would have reopened the runway at Malmstrom Air Force Base in Great Falls, MT. I am sorry the House acted as if it knows what is best for Great Falls, MT. I cannot possibly put into words my outrage for the extraordinary action that the House took early this morning. My amendment would have opened the runway that is in the heart of Malmstrom Air Force base, which is active, healthy, and vibrant. Malmstrom is located outside of Great Falls, MT, and is a highly secure missile facility, employing the largest number of security forces in the entire U.S. Air Force. Currently, the roadways and the infrastructure of Great Falls are strained due to the frequent crosstown movement of heavy cargo and equipment during deployments of the 219th and the 819th Red Horse Squadrons of the U.S. Air Force and National Guard. They must travel from Malmstrom to the other side of town on a congested roadway in the middle of town to fly out of a municipal airport. The Montana Air National Guard conducts all of their missions out of the same municipal airport. This amendment would have enabled those units to deploy from a runway within their secured perimeter. Despite the mischaracterization of the House, this provision would not overturn a BRAC decision, nor would it influence the current BRAC round. It could not. Malmstrom is not on the BRAC list. The amendment was drafted, discussed, and deliberated in the light of day, agreed to by the relevant committees and conferees. I was also pleased to have worked with the chairman and ranking member of the Armed Services Committee, as well as the conferees of the highway bill, all of whom accepted this amendment. To now have the House of Representatives cut this provision in the dead of night is an outrage. My amendment would have simply provided a commonsense solution to a local problem. Local elected officials, civic leaders, the U.S. Air Force, and the National Guard have all requested that I find a way to open the runway at Malmstrom. Senator Burns and I are dedicated to making this commonsense solution happen. But I cannot allow the highway bill to be a victim of the House's actions after the countless hours I have spent making sure it is right for America and right for the State of Montana. The House actions in the dead of night have put in jeopardy our national highway bill. This bill will pump more than $2.3 billion into my State economy, and I am proud of this bill. It will help sustain and create more than 18,000 jobs and boost safety on Montana's roads. I dare say that very few in this Congress have worked harder to get this highway bill across the finish line than has this Senator. I will not give up the fight to reopen Malmstrom's runway. I have given it my best, but I cannot, in good faith, derail this important bill for the country at this late hour. My colleague from Montana, Senator Burns, and I will continue to work to find another way to make this happen. This action by the House shows how important was the Founders' genius in creating the Senate, where States with real needs but small populations, such as Montana, have their champions. I will never apologize for fighting for Montana. I yield the floor.

Mr. BAUCUS

Mr. BAUCUS. I concur with the chairman. The piping in this case is integral to the delivery of cold water from the ocean to be used in the chilling of residential, commercial and other buildings and therefore should qualify for tax-exempt financing. Energy Efficient Appliances

Mr. BAUCUS

Mr. BAUCUS. Mr. President, every few minutes, a new Chevy Malibu, a popular family sedan, rolls off the assembly line of General Motors Corporation's Fairfax plant Kansas City, KS. The invoice price starts at $17,600. And every few minutes, across the ocean, a new Toyota Camry, a popular family sedan, rolls off the assembly line of the Toyota Motor Corporation plant in near Nagoya, Japan. The invoice price starts at about $16,600, a full $1,000 less than the Malibu. One reason for the price difference between the Malibu and the Camry is health care. Yes, health care. For GM, health care costs amount to more than $1,500 for every vehicle it produces. For Toyota, health care costs account for closer to $500 for every vehicle that it produces. That is about the thousand dollars difference. Two-thirds of Americans get their health insurance at their jobs. The system started in World War II, when the Government capped wages. Employers competed for workers by offering more generous fringe benefits. After the war, a Government tax preference further encouraged employers to provide health insurance. Almost all Japanese get their health insurance through their government. That is true of pretty much every other major industrialized country. America's system has yielded high health care costs. The average American spends more than $5,000 a year on health care. That is 53 percent more than the next most costly country. The average Japanese spends only about $2,000 a year on health care. Last year, GM paid $3.6 billion in health care costs for about 450,000 retirees and their spouses. When GM workers retire, GM continues to pay much of their health care costs as part of the worker retiree benefits plan. This year, 1,200 Japanese Toyota employees will retire. Within 2 years, pretty much every one of them will switch from Toyota's health insurance plan to the Japanese national plan. At that point, Toyota will pay absolutely nothing in health care costs for those 1,200 retirees and their spouses. General Motors provides more medical benefits than any other private entity. GM covers 1.1 million Americans, including workers, retirees, and their families. Last year, GM paid for more than 11 million prescriptions for its hourly workers. Premiums for health insurance have increased 15 percent or more in many years. GM expects that its health care bill will go up $1 billion this year, to $6.2 billion total. That is a year. Last year, GM spent $1.4 billion on prescription drugs alone. Last year, GM put $9 billion into a trust fund to pay for health care costs. Remember, when those retirees leave Toyota, they do not cover the health care costs. The government does it in Japan. In the late 1970s, GM controlled nearly half of the American car market. Since then, competitors such as Toyota, Nissan, and Honda have cut GM sales to about a quarter of the American market. In the fiscal year ending March 2004, Toyota earned $10 billion in profits. GM has now been losing money for three quarters in a row. GM lost more than a billion dollars in the first quarter of this year alone. Toyota is making nearly $1,500 a car in profit. GM is losing more than $2,300 per car. Now, part of the blame for GM's declining market share lies with GM's inability to adjust to change. In the wake of the OPEC oil embargo, Japanese car makers sold low-cost, fuel-efficient cars to American families. But OPEC imposed its oil embargo more than 30 years ago, and Japanese car companies still lead the way in energy-efficient cars. Today, only Toyota and Honda mass produce fuel-efficient hybrid sedans. But part of the blame also lies with the American health care system. Carrying the burden of health care costs handicaps American companies in their race for global markets. Americans are smart. Americans work hard. But American manufacturers cannot compete with foreign manufacturers when American companies have to bear the extra load of these higher health care costs. You might think that because Americans pay more for health care, well, at least we get better health care. But we do not. The average American does not have better access to health services. Forty-five million Americans lack health insurance. Fifteen percent of our population is uninsured. Japan offers better access to the dialysis and diagnostic image services--MRIs and so forth--than America does. Nor do we have better outcomes. That is a fancy term for saying our people are not healthier after they see a doctor and go to the hospital. We are not better. The average American woman can expect to live to age 79. The average Japanese woman can expect to live 5 years longer, to age 84. People can expect to live longer in Canada, France, Germany, Sweden, Switzerland, and Britain. And all of those countries spend less per person on health care than do we. America's fragmented system yields high administrative costs. In 2003, administrative costs accounted for nearly a quarter of American health care costs. That is $400 billion--a quarter of what we spend on health care. America is the only country in the industrialized world without a national health system. We do not have a single-payer system like Canada, Britain, or Switzerland. Instead, we have a system of uncoordinated payers, from private insurers to Medicare, from employers to State Medicaid programs. It is very uncoordinated, very diverse. America's massive $2 trillion health care bill ought to buy more. America's health care system needs serious reform. National health care reform appears unlikely any time soon. But we have at our disposal--if Congress can act--the means to attack some of the most glaring inefficiencies in our health care system and reduce unnecessary costs. We can improve health care by facilitating the use of health information technology. We can improve health care by tying payment to the quality and value of care, rather than just spending on whatever services the doctors and hospital provide, irrespective of the quality and the outcome. By encouraging investment in health information--technology, computers, interoperability, getting rid of the paperwork--we can reduce unnecessary administrative costs, and we can enhance patient safety and clearly improve the quality of care. Let me explain. America often invents new medical technologies. We often adopt new medical technologies early. We are leaders in the areas of drugs and devices, pills and procedures, science and surgeries. But we have not complemented this innovation with the proper use of health information technology. The staggering cost of administering American's pen and paper system of health care claims proves the point. Mr. President, 30 to 40 percent of American health care transactions still rely on paper claims. That is according to health economist, Ken Thorpe of Emory University. These claims can cost from $5 to $20 each. But administering health care claims electronically can cut those costs to as little as 50 cents each. Professor Thorpe estimates that requiring automated claims processing would save the Federal Government nearly $80 billion over 10 years. Significant savings would also accrue to the private sector, if it fully automated claims. And proper use of health IT can prevent unnecessary medical errors, hospitalizations, and other health care services. Each year, about 7,000 Americans die because of errors in administering their medication. I also had a figure--and nobody disputed this--that the equivalent of two 747s crashing today is the number of Americans who die today because of medical errors. That is many more than people who die of gun deaths or in traffic accidents. The equivalent of two 747s crashing every day is the number of Americans who died on account of medical errors--not bad outcomes but medical errors. Technology can help ensure that medical professionals give the right drug to the right patient at the right time. We are talking about drugs. We can help to do that by putting bar codes on all drugs, and by using health information technology to link medication administration to a patient's clinical information. The inability to exchange clinical data among providers often causes duplication of diagnostic tests. Clearly, if you take somebody in Montana who goes on vacation in the great State of Louisiana and gets ill--maybe has a heart attack--and he goes to see a doctor, or goes to the emergency room, that doctor looks at the Montanan, administers some tests, and has no record of the Montanan who happens to be there on vacation--no idea what is going on. He has to start from scratch and run all these tests all over again. Clearly, it is unnecessary duplication. Just think how much more efficient we would be if that Louisiana doctor in that hospital could push a button and my Montanan's health care record would be available. Clearly, it could protect the right of privacy and confidentiality, but just think of the savings that can be made. Think of how much better the health care would be to my Montanan in Louisiana. We could help make it easier for one doctor to pull up that x ray that another doctor took a week before. Duplication is eliminated and the quality of care clearly improves. Medicare spends $50,000 more for the average 65-year-old in Miami than for the average 65-year-old in Minneapolis, MN--$50,000 more per beneficiary in Miami than in Minneapolis, MN. You might ask, why is that? In their last 6 months of life, Medicare beneficiaries in Miami visited specialists six times more often than those in Minneapolis. You might say, they are healthier; more is spent on them. Or they go because there are more specialists in Miami compared to Minneapolis. But that is not what is happening. By using health IT appropriately, we can reduce error and duplication and overuse of services. We can also coordinate senior care to ensure that they receive adequate preventive care and management for their chronic conditions. In fact, patients who see primary care physicians in Minneapolis tend to be healthier, where fewer dollars are spent, than do seniors in Miami who see more specialists. That is counterintuitive, but that is the fact. Why is America falling behind in health information technology? Part of the reason is lack of investment. The health care industry invests only about 2 percent of its revenues in health information technology. Other information-intensive industries invest about 10 percent. Think of the banking industry. As a result, many health practitioners in America have limited information technology capability. In Britain, nearly all general practitioners--98 percent--have a computer somewhere in their office. In America, extremely few small physician practices--just 5 percent-- use anything but a pen and paper. We have to help ensure that health information systems can communicate with one another. We need an agreed-upon set of standards so that health information technology systems can work together. Otherwise, we will have a Tower of Babel preventing communication of critical health information. We can do better, and that is why I have worked with my colleagues on the Finance Committee and on the HELP Committee to introduce the Better Healthcare Through Information Technology Act, a bill which facilitates nationwide adoption of information technologies in the health care field. It will help those systems to talk to one another, it will set up loans and grants to encourage the use of more health IT, and it will help us to improve health care quality. We need to emphasize quality care. Medicare is the dominant care in America's health system, but Medicare is at best neutral and at worst negative toward quality. Medicare pays for the delivery of a service; Medicare does not pay for the achievement of health. And we see the effect. Patients receive recommended treatments only about half the time, and more care is often not producing better care. Among the 50 States, levels of cost and quality vary greatly. In my home State of Montana, for example, Medicare spends about $5,000 per year per beneficiary. Quality of care ranks near the top. By contrast, some States spending around $7,000 a year per beneficiary--$2,000 more--have quality that ranks near the bottom. States such as Montana, with its higher proportion of primary care practitioners, often produce lower costs and better quality. Less expensive care, when concentrated and patient centered, can do more for a patient than high-cost services. I have introduced a bill with my colleagues, Senators Grassley, Enzi, and Kennedy, that will build value into the way Medicare pays for its services. The Medicare Value Purchasing Act of 2005 will provide higher Medicare reimbursements to providers who show they are working to improve the quality of care they deliver. Together, these two bills I mentioned form a package. This quality bill goes hand in hand with the health IT bill I just mentioned. Together, they will help improve American health care and help keep American businesses competitive. In his recent book about competitiveness, ``The World is Flat,'' Tom Friedman talks about the need to strengthen what he calls the ``muscles'' of the individual American worker. Part of the solution to global competition, he says, lies in ensuring that the American health care system provides our workers with access to health care services without placing them or their employers in financial jeopardy. That means congressional action on health quality, and it means congressional action on health IT. I stand ready to work with my colleagues to realize that goal. Until we act, health care costs will continue to make America less competitive. Until we start investing in health IT, we risk falling further behind. And until we start paying for health care quality, we risk slowing our progress to a better future. A little more than a century ago, in 1903, a man named Henry Ford established the Ford Motor Company in Detroit, MI. That same year, a man named Orville Wright became the first person to pilot an airplane in powered flight. Americans have been at the forefront of transportation ever since. In 1929, the Duesenberg J, a premier four- door luxury sedan, began rolling off the assembly line. The price was expensive at that time, starting at $13,000. Like the automotive industry, health care has come a long way in the last century. And like the automotive industry, health care needs to adjust and adjust dramatically to change. If we invest in health IT and start paying for health care quality, we can help both the American automobile industry and the American health care system to keep moving forward. I yield the floor.

Mr. BAUCUS. And may Ford produce many more.

Mr. BAUCUS. Mr. President, I ask unanimous consent to speak as in morning business.

Mr. BAUCUS. Mr. President, I rise to ask my colleagues to support the Protection of Lawful Commerce in Arms Act. This act has strong bipartisan support. Sixty-one Senators are cosponsoring this legislation. I am very proud to be an original cosponsor of this bill. I thank my good friend from Idaho, Senator Craig, for his leadership in introducing the legislation and bringing the bill to the Senate floor, managing the legislation and doing an exemplary job. The legislation we are considering will correct a significant injustice that threatens the viability of a lawful U.S. industry; that is, the firearms industry. An increasing number of lawsuits are being filed against the firearms industry seeking damages for wrongs committed by persons who have misused the industry's products. These lawsuits seek to impose liability on lawful businesses for the actions of people over whom the industry has no control. Outrageous. Businesses that comply with all applicable Federal and State laws and produce a product fit for its intended lawful purpose, including elk hunting, duck hunting, target shooting, or personal protection, should not be subjected to frivolous lawsuits that have only one goal--to put them out of business. This is an unacceptable burden on lawful interstate commerce. No other law-abiding industry faces this kind of attack. People in my State are proud of their independence. We are proud of our outdoor heritage. Montanans are avid sports men and women. We cherish our right to hunt and fish and enjoy the outdoors. Passing this bill will allow us to protect that right by ensuring that the firearms industry stays in business. Each year, hunters, shooters spend nearly $21 billion. This, in turn, generates more than 366,000 jobs that pay more than $8.8 billion in salaries and wages and provide $1.2 billion in State tax revenues. In addition, excise taxes imposed on firearms under the Federal Aid to Wildlife Restoration Act, also known as the Pittman-Robertson Act, generate critical revenues for State fish and wildlife conservation efforts and hunter safety training. For example, the Pittman-Robertson Act generated more than $150 million in revenue in 2002 alone. In Montana, hunters and sportsmen generated $250 million in retail sales, generating about 5,592 jobs, over $100 million in salaries and wages, and $11 million in State tax revenues--no small matter. In addition, threats to the U.S. gun industry also pose a threat to the U.S. military. Many domestic gun manufacturers supply the military with necessary firearms. If these companies are forced out of business, the U.S. military must look abroad to arm itself, and we cannot let that happen. In short, the U.S. firearms industry serves America's gun owners, serves our sportsmen, and our military very well. It provides good- paying jobs for many Americans. It provides revenues that benefit all Americans. The industry should not be penalized for legally producing or selling a product that functions as designed and as intended. But that is exactly what certain groups are trying to do by asking the courts to step in and micromanage the industry. The Congress and most State legislators have refused to do so. Let me list some of the demands so you get a flavor of how credible these lawsuits are. Some of these lawsuits would require one-gun-a- month purchase restrictions not required by State law. Others require firearm manufacturers and distributors to participate in a court- ordered study of lawful demand for firearms and to cease sales in excess of lawful demand, if you can imagine. Others require a prohibition on sales to dealers who are not stocking dealers with at least $250,000 in inventory, talking about the small gun dealers. Others would require systematic monitoring of dealers' practices by manufacturers and distributors. These are just a few of the sweeping demands made in the lawsuits that the Protection of Lawful Commerce in Arms Act seeks to stop. As you can tell, these suits are asking the courts to step well outside of their jurisdiction, to legislate regulation of the industry. They also have nothing to do with holding accountable those who actually misuse the firearms. Most courts have dismissed such lawsuits that are brought before them. A New York appellate court judge stated: The plain fact is that the courts are the least suited, least equipped, and thus the least appropriate branch of government to regulate or micromanage the manufacturing, marketing, distribution, and sale of handguns. However, the time, expense, and effort that goes into defending these nuisance suits is a significant drain on the firearms industry, costing jobs and millions of dollars, increasing business operating costs, including skyrocketing insurance costs, and threatening to put dealers and manufacturers out of business. That is why this bill is so necessary. Let me be clear about a couple the things. This bill will not close the courthouse doors to legitimate suits against the firearms industry. It will not shield the industry from its own wrongdoing or from its negligence or if the industry puts out a bad product. For example, the bill will not require dismissal of a lawsuit if a member of the industry breaks the law or if someone in the industry acts negligently in supplying a firearm to someone they have reason to believe is likely to misuse the firearm or supplies a firearm to someone they had reason to know was barred by Federal law from owning a firearm or a representative of the industry who designs a defective product. The bill also doesn't protect unlicensed dealers. The bill would only protect federally licensed manufacturers, dealers, or importers of firearms. This bill is only intended to protect law-abiding members of the firearms industry from nuisance suits that have no basis in current law, that are only intended to regulate the industry or harass the industry or put it out of business, none of which are appropriate purposes for a lawsuit. Certainly, regulating the industry is well outside the appropriate role of the courts. We could all agree that when a firearm is used in a criminal or careless manner that causes serious injury or loss of life, that is a terrible tragedy. Those responsible should be punished to the full extent of the law in both the civil and criminal areas. That includes the firearms industry, if one of its members breaks the law or acts negligently in selling a firearm to a criminal or other person they should have known would use the firearm to hurt another person. The Protection of Lawful Commerce in Arms Act will do nothing to change that or shield the arms industry from criminal wrongdoing. At the same time, it is not right or fair to hold law-abiding members of the industry accountable for independent actions of third parties who use a firearm in a manner that industry never intended. Why, for example, should the industry be held liable if a member of the industry sells a gun to a lawful customer and that gun is then stolen from a customer and used in a crime? That makes no sense. Again, the fact that a crime occurred is sad and tragic, but that doesn't mean that the firearms industry is in any way responsible for such a gross misuse of its product. But that is exactly what is happening in some of these lawsuits. This bill would put a stop to that. It is a very short, simple bill with a simple purpose. Nothing is hidden in it. It is also critically important to a vital national industry. We need to pass it, pass it now, as the situation will only get worse. I ask my colleagues to give it their full support.

Mr. BAUCUS

Mr. BAUCUS. I ask unanimous consent that Senator Jeffords's speech before the World Veterinary Association be printed in the Record.

Mr. BAUCUS

Mr. BAUCUS. Mr. President, I rise today to introduce the Trade Adjustment Assistance for Industries Act. I have long been a champion for our Trade Adjustment Assistance program, what we call ``TAA.'' For more than 40 years, TAA has been providing retraining, income support, and other benefits to workers who lose their jobs due to trade. The program has a critical mission: to give trade-impacted workers the skills they need to find new jobs and prosper in growing sectors of the economy. Maintaining a well-trained workforce is key to our Nation's long-term competitiveness and economic health. And helping those few who lose out from our trade policy choices is key to maintaining public support for trade liberalization. In the Trade Act of 2002, I spearheaded the most comprehensive expansion and overhaul of the TAA program since 1974. We expanded the kinds of workers who are eligible for TAA benefits. We extended the training benefit to make it more effective and enhanced funding for training. We added new benefits like wage insurance and the health coverage tax credit. We also streamlined the application process to get workers enrolled and retraining sooner. TAA is a lifeline for those who enter the program. Participating workers in Montana tell me that TAA has made it possible for them to make a new start. It gives them hope that they can do something more than merely survive a plant closure. One of the industries in Montana that has had all too much experience with the TAA program is softwood lumber. Our softwood lumber industry has been battered for years by imports of dumped and subsidized lumber from Canada. Over time, and despite decades of litigation, these unfair trading practices have taken their toll. Since 1999, workers from at least 24 Montana lumber mills have applied for TAA certification. An additional 11 petitions were filed under the now-repealed NAFTA-TAA program. What surprises me is not that so many Montana lumber workers have applied for TAA--but the inconsistent treatment of their petitions. Of the 24 Montana lumber companies that petitioned for TAA, 16 were approved and 8 were denied. Under the NAFTA-TAA program, 6 petitions were approved, and 5 were denied. These results do not make sense. These mills are all competing in the same market. They are all competing against dumped and subsidized imports from Canada that drive down prices until U.S. producers cannot survive. The International Trade Commission found that Canadian imports injure or threaten injury to the entire domestic softwood lumber industry. And yet, somewhere between a third and a half of Montana workers laid off in the industry were left to fend for themselves, while the others had the chance to participate in TAA. So why are some workers getting TAA and others being turned down? The answer lies in the way the Department of Labor reviews petitions. Under current law, petitions have to be filed and reviewed on a plant-by- plant basis and in a total vacuum. In effect, the Labor Department puts on blinders. It does not consider whether the International Trade Commission has found injury to the industry from imports. It does not ask whether imports are leading to job losses nationwide. It does not examine whether entire occupational categories are being offshored. Instead, it just asks an individual plant whether it or its customers are buying more imports. If that one plant submits the wrong information, or its customers deny buying imports, its workers lose out--while similar workers up the road get the benefits they deserve. The plight of softwood lumber illustrates why, in some cases, plant- by-plant certification is not the best policy. And lumber workers are not alone. A similarly checkered record of certifications and denials affects other industries, like textiles and small electronics. Simply put, there are some industries where the trade-related displacements are clearly national in scope. The industries are easy to identify. They experience multiple plant closures covering multiple states in a relatively short period. They are often industries seeking or receiving relief under trade remedy laws. In these cases, it makes no sense to consider petitions one plant closure at a time. That creates the risk of inconsistent results for similarly situated workers. And it makes the Department of Labor investigate the same situation over and over again--even when the International Trade Commission, or another Federal agency, has already made a thorough injury investigation. What would make more sense is a way to certify workers on an industry-wide basis or on the basis of occupational classification in cases where the trade-related layoffs are national in scope. That is what this legislation does. I should note that, in one rare circumstance, the President already has the authority to certify workers for TAA on an industry-wide and nationwide basis. When the President grants a remedy in a global safeguard case--what we call section 201--he has the option of certifying all workers in the affected industry for TAA. To my knowledge, this option has been used only once, by President Reagan, in a case involving the footwear industry. In that case, workers laid off from individual footwear plants did not need to petition the Department of Labor for a determination that their job losses were import-related. All each worker had to do was go to a designated office in his State and prove that he lost a job in the footwear industry within the applicable time period. Normally, there are two steps needed to qualify for TAA under current law. First, the Department of Labor has to certify that a particular layoff is trade-related. That certification covers all the workers laid off at a single plant. Second, each individual worker affected by that layoff has to prove that he or she satisfies a list of criteria to qualify for benefits, such as 2 years' employment at the firm and eligibility for unemployment insurance. In the footwear case, workers were spared the first, group eligibility step and moved right to the second step. To me, this model makes a lot of sense. If you believe in the purpose of TAA, it makes sense to make it as easy as possible for qualifying workers to access benefits. This bill achieves that goal in two ways. First, it makes industry-wide TAA certification automatic in cases where the President, the International Trade Commission, or another qualified Federal agency has already determined that imports are having an injurious effect. If workers lose their jobs in an industry covered by a global or bilateral safeguard or an antidumping or countervailing duty order, within a set period of time, they do not need to file a petition for TAA. Instead, they can proceed directly to the second step of demonstrating their individual eligibility and enrolling through the one-stop centers in their states. Second, the bill permits, but does not require, the Secretary of Labor to make her eligibility determination on an industry-wide or occupation-wide basis in other circumstances that suggest a plant-by- plant approach is not appropriate. Such circumstances would include cases where the Secretary has received three or more petitions from workers at different plants in the same industry within a 6 month period. It would also include cases where the Senate Finance Committee or the House Ways and Means Committee passes a resolution requesting an industry-wide investigation. In these cases, the Secretary may certify workers in an entire industry only if she determines that the statutory eligibility criteria are satisfied on an industry-wide basis. Now that I have described what this bill does, I think it is important to emphasize some things that it does not do: It does not change the eligibility criteria or make any new categories of workers eligible for TAA. It does not make TAA benefits available to workers who quit their jobs or are fired for cause. It does not change the type or amount of benefits an eligible worker can receive. What it does is create a fair, predictable, and efficient way to make eligibility determinations where industry-wide effects are obvious. We owe our trade-affected workers a fair chance to train for the jobs of the future and get back into the workforce. And we owe our employers and our economic future well-trained workers. We already have a program designed to do just that. We should be doing everything we can to make sure that TAA benefits reach every qualified worker who needs them. This change is long overdue. I want to thank Senator Coleman for joining me in introducing this important legislation. He has been a strong partner in the quest to make TAA work for every American who needs it. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. BAUCUS

Mr. BAUCUS. Mr. President, I rise today to introduce the Trade Adjustment Assistance for Industries Act. I have long been a champion for our Trade Adjustment Assistance program, what we call ``TAA.'' For more than 40 years, TAA has been providing retraining, income support, and other benefits to workers who lose their jobs due to trade. The program has a critical mission: to give trade-impacted workers the skills they need to find new jobs and prosper in growing sectors of the economy. Maintaining a well-trained workforce is key to our Nation's long-term competitiveness and economic health. And helping those few who lose out from our trade policy choices is key to maintaining public support for trade liberalization. In the Trade Act of 2002, I spearheaded the most comprehensive expansion and overhaul of the TAA program since 1974. We expanded the kinds of workers who are eligible for TAA benefits. We extended the training benefit to make it more effective and enhanced funding for training. We added new benefits like wage insurance and the health coverage tax credit. We also streamlined the application process to get workers enrolled and retraining sooner. TAA is a lifeline for those who enter the program. Participating workers in Montana tell me that TAA has made it possible for them to make a new start. It gives them hope that they can do something more than merely survive a plant closure. One of the industries in Montana that has had all too much experience with the TAA program is softwood lumber. Our softwood lumber industry has been battered for years by imports of dumped and subsidized lumber from Canada. Over time, and despite decades of litigation, these unfair trading practices have taken their toll. Since 1999, workers from at least 24 Montana lumber mills have applied for TAA certification. An additional 11 petitions were filed under the now-repealed NAFTA-TAA program. What surprises me is not that so many Montana lumber workers have applied for TAA--but the inconsistent treatment of their petitions. Of the 24 Montana lumber companies that petitioned for TAA, 16 were approved and 8 were denied. Under the NAFTA-TAA program, 6 petitions were approved, and 5 were denied. These results do not make sense. These mills are all competing in the same market. They are all competing against dumped and subsidized imports from Canada that drive down prices until U.S. producers cannot survive. The International Trade Commission found that Canadian imports injure or threaten injury to the entire domestic softwood lumber industry. And yet, somewhere between a third and a half of Montana workers laid off in the industry were left to fend for themselves, while the others had the chance to participate in TAA. So why are some workers getting TAA and others being turned down? The answer lies in the way the Department of Labor reviews petitions. Under current law, petitions have to be filed and reviewed on a plant-by- plant basis and in a total vacuum. In effect, the Labor Department puts on blinders. It does not consider whether the International Trade Commission has found injury to the industry from imports. It does not ask whether imports are leading to job losses nationwide. It does not examine whether entire occupational categories are being offshored. Instead, it just asks an individual plant whether it or its customers are buying more imports. If that one plant submits the wrong information, or its customers deny buying imports, its workers lose out--while similar workers up the road get the benefits they deserve. The plight of softwood lumber illustrates why, in some cases, plant- by-plant certification is not the best policy. And lumber workers are not alone. A similarly checkered record of certifications and denials affects other industries, like textiles and small electronics. Simply put, there are some industries where the trade-related displacements are clearly national in scope. The industries are easy to identify. They experience multiple plant closures covering multiple states in a relatively short period. They are often industries seeking or receiving relief under trade remedy laws. In these cases, it makes no sense to consider petitions one plant closure at a time. That creates the risk of inconsistent results for similarly situated workers. And it makes the Department of Labor investigate the same situation over and over again--even when the International Trade Commission, or another Federal agency, has already made a thorough injury investigation. What would make more sense is a way to certify workers on an industry-wide basis or on the basis of occupational classification in cases where the trade-related layoffs are national in scope. That is what this legislation does. I should note that, in one rare circumstance, the President already has the authority to certify workers for TAA on an industry-wide and nationwide basis. When the President grants a remedy in a global safeguard case--what we call section 201--he has the option of certifying all workers in the affected industry for TAA. To my knowledge, this option has been used only once, by President Reagan, in a case involving the footwear industry. In that case, workers laid off from individual footwear plants did not need to petition the Department of Labor for a determination that their job losses were import-related. All each worker had to do was go to a designated office in his State and prove that he lost a job in the footwear industry within the applicable time period. Normally, there are two steps needed to qualify for TAA under current law. First, the Department of Labor has to certify that a particular layoff is trade-related. That certification covers all the workers laid off at a single plant. Second, each individual worker affected by that layoff has to prove that he or she satisfies a list of criteria to qualify for benefits, such as 2 years' employment at the firm and eligibility for unemployment insurance. In the footwear case, workers were spared the first, group eligibility step and moved right to the second step. To me, this model makes a lot of sense. If you believe in the purpose of TAA, it makes sense to make it as easy as possible for qualifying workers to access benefits. This bill achieves that goal in two ways. First, it makes industry-wide TAA certification automatic in cases where the President, the International Trade Commission, or another qualified Federal agency has already determined that imports are having an injurious effect. If workers lose their jobs in an industry covered by a global or bilateral safeguard or an antidumping or countervailing duty order, within a set period of time, they do not need to file a petition for TAA. Instead, they can proceed directly to the second step of demonstrating their individual eligibility and enrolling through the one-stop centers in their states. Second, the bill permits, but does not require, the Secretary of Labor to make her eligibility determination on an industry-wide or occupation-wide basis in other circumstances that suggest a plant-by- plant approach is not appropriate. Such circumstances would include cases where the Secretary has received three or more petitions from workers at different plants in the same industry within a 6 month period. It would also include cases where the Senate Finance Committee or the House Ways and Means Committee passes a resolution requesting an industry-wide investigation. In these cases, the Secretary may certify workers in an entire industry only if she determines that the statutory eligibility criteria are satisfied on an industry-wide basis. Now that I have described what this bill does, I think it is important to emphasize some things that it does not do: It does not change the eligibility criteria or make any new categories of workers eligible for TAA. It does not make TAA benefits available to workers who quit their jobs or are fired for cause. It does not change the type or amount of benefits an eligible worker can receive. What it does is create a fair, predictable, and efficient way to make eligibility determinations where industry-wide effects are obvious. We owe our trade-affected workers a fair chance to train for the jobs of the future and get back into the workforce. And we owe our employers and our economic future well-trained workers. We already have a program designed to do just that. We should be doing everything we can to make sure that TAA benefits reach every qualified worker who needs them. This change is long overdue. I want to thank Senator Coleman for joining me in introducing this important legislation. He has been a strong partner in the quest to make TAA work for every American who needs it. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. BAUCUS

Mr. BAUCUS. Mr. President, I rise to address possible floor consideration of S. 1418, a bill to amend the Public Health Service Act to enhance the adoption of a nationwide interoperable health information technology system and to improve the quality and reduce the costs of health care in the United States. Senator Grassley and I have been working since January with Senators Enzi and Kennedy on issues of quality and health information technology. Together, we introduced two bills on June 30--one that deals with Medicare quality, and another to enhance quality through the widespread adoption of health IT. The latter is S. 1356, the Medicare Value Purchasing Act of 2005, which develops a system of quality measurement and implements pay-for-performance in Medicare. In drafting these two bills, we worked hard to craft language that was complementary rather than contradictory. Ultimately, we viewed these two pieces of policy as working together to build a comprehensive and workable health care quality system. S. 1418 potentially disrupts the work we have done thus far, by including language that will force the duplication of quality measurement systems. It also raises questions about the jurisdictional reach of the Committee on Health, Education, Labor, and Pensions. Medicare is the dominant payer in health care, with annual spending exceeding $300 billion. Furthermore, it is Medicare's payment systems that are often adopted by private insurance groups. Private payers use the Medicare physician fee schedule for their own book of business, and we would expect these same insurers to follow Medicare's lead on pay- for-quality. I appreciate the process that Senators Enzi and Kennedy have undertaken with us over the last several months. And I appreciate the majority leader's desire to move important health IT legislation. Congressional action on this issue is long overdue. But until common ground can be reached on a feasible system of measuring quality, I must reluctantly object to moving forward with S. 1418. I believe that the process outlined in this bill for the development of quality measures may well be unworkable and that it will raise deep concerns for hospitals, physicians, and other providers. I also believe that the language on the development of quality measures in this bill ought to be designed for Public Health Service Act programs and explicitly applicable to these programs, not to Medicare or Medicaid. I hope that our colleague, Senators Enzi, Kennedy, Frist, and Clinton, will work with us to craft a bill that is appropriate for programs under the PHSA and that complements the Medicare Value Purchasing Act of 2005. Ultimately, I believe that we have the same goals in mind. If we can come to an agreement now, we can continue moving forward with these important policies that can change the shape, quality, and ultimately the cost and benefit of our health care system.

Mr. BAUCUS

Mr. BAUCUS. Mr. President, how much time remains in control of the Democratic Senators on this resolution?

Mr. BAUCUS. Mr. President, a little more than 2 years ago, thugs working for the military strongmen of Burma attacked Aung San Suu Kyi and members of the opposition party that she leads, the National League for Democracy. The Government put Suu Kyi into what they call ``protective custody.'' She remains under house arrest to this day. In response to this heinous attack, America banned imports from Burma. We in Congress believed something had to be done. In 2002, those imports were valued at $350 million, mostly in garments. In the autumn of 2003, Burmese Prime Minister Nyunt, who had opposed the attack on the opposition party, called for a seven-point road map to Democracy. But the road map led to nowhere. And a rigged national convention broke down when opposition representatives rightly decided to boycott it. The strongmen of Burma then removed Prime Minister Nyunt from his post. They placed him under house arrest, for supposed corruption. And they replaced him with a hard-line general, whom many believe to have planned the attack. Where does this leave Burma? In short, the ruling generals have consolidated their grip on power. And government security forces continue to inflict innumerable human rights violations on the Burmese people. This is a tragic situation. The long-suffering people of Burma deserve to be rid of the criminals who purport to represent them. But what is the best way to do that? When the Senate first considered banning Burmese imports, Senator Grassley and I worked hard to ensure two key conditions. First, we made sure that Congress would retain its constitutionally vested power to impose and evaluate trade sanctions. We should never write the President a blank check. Second, we made sure that the law would direct the administration to work with other nations, to make these sanctions work. Unilateral sanctions seldom work. Unilateral sanctions typically harm innocent citizens far more than the odious rulers against whom they are aimed. Sadly, events on the ground in Burma suggest that these unilateral sanctions have proved no exception to the rule. The sanctions have harmed innocent citizens. And the odious rulers remain in place. The U.S. ban on Burmese imports caused a number of Burmese garment factories to close. Tens of thousands of garment workers, overwhelmingly women, lost their jobs. And more Burmese women, with nowhere else to go, turned to prostitution. Today, the Burmese garment industry has to some extent rebounded, sustained by new orders from Canada, Europe and Latin America. U.S. sanctions against Burma might have been more effective if other countries would join us in isolating the Burmese regime. But that has not happened. To the contrary, China has embraced the Burmese government. China has invested in Burma's energy sector. And China has extended generous aid packages to Burma, including a $356 million aid package that more than makes up for Burma's loss of America's import market. Thailand and India share a long border with Burma. But Thailand and India have their own ideas about how to deal with Burma's military rulers. And those ideas do not include joining U.S. sanctions. And ASEAN member countries continue to welcome Burma to their economic summits. This is not a record of success. Nevertheless, I will vote to renew the sanctions on Burma for another year. But I do so with an eye toward next year, when the sanctions automatically expire. I know that most of my colleagues will vote reflexively to renew these import sanctions. Boycotting Burmese imports allows us to express our collective disapproval of the awful regime running Burma. But I hope that my colleagues will take a moment to consider whether a boycott is the best thing for the Burmese people. Next year, if my colleagues seek to extend the Burmese import sanctions, Congress will have to enact new legislation to do so. At that time, I hope that we can have a more extensive debate on how best we can help the cause of freedom, and how best we can help the Burmese people. Mr. President, I note the presence of the Senator from California on the floor, a leader on this issue. I yield the floor.

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

Mr. BAUCUS. Mr. President, 600 years ago this month, a great fleet of more than 300 ships lifted anchor at Nanjing, China, on the first of 7 voyages of trade and discovery. The Chinese fleet counted the largest wooden ships ever built, some with nine masts, massive keels of teak, and decks 400 feet long--you can imagine, longer than a football field. The Ming Emperor gave his nearly 7-foot tall admiral orders to sail on July 11, 1405, nearly a century before Christopher Columbus and Vasco da Gama left Europe. And all of those European explorers' ships could have fit on a single deck of one of the Chinese treasure ships. The 36-foot rudder of one of the ships stood almost as tall as Columbus' flagship, the Nina, was long. The Ming fleet carried a crew of nearly 28,000, with a medical officer for every 150 souls on board. The fleets carried more than a million tons of silk, porcelain, copper coins, and spices to trade for the riches of the world, on to what the Chinese called the Western Ocean--what we call the Indian Ocean. They reached Sumatra, Ceylon, and India. They went to the Arabian peninsula and Africa's Swahili coast. They made a side trip to Mecca. At each port, ships with colorful prows delivered platoons of Chinese merchants, ready to do business. In Siam--now Thailand--they acquired sandalwood, peacocks, and cardamom. In Indonesia, they acquired tin. In Oman, they traded porcelain for frankincense, myrrh, and aloe. The Sultan of Aden gave them zebras, lions, and ostriches. In east Africa, they acquired a giraffe. In 1451, one of the fleet's interpreters would write a memorial of the voyages, exclaiming: How could there be such diversity in the world? In Sri Lanka, the admiral engraved a granite slab in Chinese, Tamil, and Persian, seeking blessing from Buddha, Siva, and Allah alike. In the south Chinese harbor of Changle, the admiral inscribed on a pillar: [We] have recorded the years and months of the voyages . . . in order to leave [the memory] forever. He listed his destinations, ``altogether more than 30 countries large and small.'' He wrote of his efforts: . . . to manifest the transforming power of virtue and to treat distant people with kindness. He wrote: We have traversed more than 100,000 li-- That is 40,000 miles-- of immense water spaces and have beheld in the oceans huge waves like mountains rising sky-high, and we have set eyes on . . . regions far away hidden in a blue transparency of light vapors. . . . Today, approximately 600 years later, Chinese officials will proudly recall the voyages of the Ming fleet. They will observe that Ming China amassed one of the most powerful naval forces ever assembled, and they will pointedly note that China used the fleet not for conquest but for business and exploration, trade and diplomacy. Three weeks ago, on June 24, 2005, a fleet of Chinese-made cars began rolling onto a ship in Guangzhou, China, bound for Europe. The fleet counted cars made at a gleaming new Honda factory on the outskirts of the sprawling city of 12 million souls near Hong Kong. As reporter Keith Bradsher of the New York Times described: At the new Honda factory . . . white robots poke and crane their long, vulture-like heads into gray, half-completed car bodies to perform 2,100 of the 3,000 welds needed to assemble each car. Workers in white uniforms and gray caps complete the rest of the welds, working as quickly as workers in American factories--but earning roughly $1.50 an hour in wages and benefits, compared to the $55 an hour for General Motors and Ford factories in the United States. In America, General Motors and Ford struggle to pay high health care costs for autoworkers with an average age of nearly 50. In China, most of Honda's autoworkers are in their twenties. They do not go to the doctor much, and when they do, Chinese doctors charge less than $5 for an office visit and a few stitches. China's manufacturing companies are rapidly building wealth, and they have begun to trade that wealth for the riches of the world, across the Pacific Ocean. At airports throughout the world, airplanes with colorful tail wings deliver platoons of Chinese merchants, ready to do business. In May, the Chinese company Lenovo acquired the personal computer division of IBM. In June, a Chinese company bid $2.25 billion for the Iowa-based appliance company Maytag. Also in June, China National Offshore Oil Corporation bid $18.5 billion for Los Angeles-based Unocal, whose ``76'' marketing symbol is one of the most recognized and enduring corporate symbols in America. And all this buying pales next to the acquisition by China's central bank of $230 billion of American Government debt. China is pursuing trade agreements with India, Australia, New Zealand, and Thailand. China is reaching out to the 10 countries of the Association of Southeast Asian Nations, known as ASEAN. The Chinese are visiting the rest of Asia in greater numbers than before. They bring with them money and optimism about the ``new China.'' The new China has gleaming skyscrapers, modern, productive industries, and a rapidly developing infrastructure. China has launched a major charm offensive across Asia to promote itself as a desirable place to visit, to invest, and to live. Through ventures such as China Radio International, worldwide television broadcasts, and Chinese language and cultural centers across Asia, China advertises itself as an attractive destination. Increasingly, Asians are forgoing trips to Los Angeles, traveling to Beijing instead. For many young Asians, the gleaming lights of Shanghai illuminate the new Manhattan. Already 90 million people in China's coastal cities have access to the Internet, and the Chinese own more cell phones than any other people in the world. There are more cell phones in China than there are people in the United States. China has the world's largest population, the fastest growing economy, the second largest foreign currency reserves, and the third largest trade. China creates one-fifth of world trade growth. In 2004, America exported 2\1/2\ times more to China than it did in 1999, 5 years earlier. My State of Montana exported 11\1/2\ times more. But America's merchandise trade deficit with China has more than doubled in the same time. China accounted for a quarter of America's $652 billion trade deficit last year. As Tom Friedman writes in his book, ``The World is Flat,'' which I recommend for everyone: [W]hat is really scary is that China is not attracting so much global investment by simply racing everyone to the bottom. . . . China's long-term strategy is to outrace America and the EU countries to the top, and the Chinese are off to a good start. China is amassing one of the most powerful economies ever assembled. So America must ask: Will the result be as benign as the voyages of the Ming treasure fleet 600 years ago? Asia accounts for one-third of the world economy. It is the world's most economically dynamic region. And America needs to pay attention. This administration has launched 20 free-trade agreements, but only one has been in Asia--with Thailand. Instead of embracing ASEAN, this administration has largely ignored it. The Government has ceded the initiative in Southeast Asia to China. That is how ASEAN views the recent decisions of Secretary of State Rice to skip an important ASEAN gathering later this month. U.S. Secretaries of State have traditionally attended that conference. And this administration has failed to use the Asia Pacific Economic Cooperation, otherwise known as APEC, as a platform for trade integration. Rather, this administration has turned the organization into little more than a venue to discuss security options. Since 2000, this administration has negotiated bilateral and regional trade agreements at a furious pace, but most of the agreements the Government has been negotiating offer little real value to America's commercial interests. Why? Because the Government is choosing trading partners more for foreign policy reasons than it is for commercial reasons. The U.S. Trade representative has finite resources. To be effective, to deliver the greatest benefits to Americans, our Government must direct their efforts where they are most likely to have the greatest effects. In 1962, Congress created the Special Trade Representative--the predecessor of the U.S. Trade Representative--to remove trade policy from the State Department precisely so that commercial interests rather than foreign policy interests would drive American trade policy. I don't think that has happened. I believe trade shots are called by the White House. We must focus trade policy efforts where they promise the greatest return for our ranchers, businesses, and our workers. First and foremost, we need to devote more effort to the ongoing Doha round of WTO negotiations. From all appearances, the negotiations are dragging. The pace of progress will have to improve considerably to meet the goal of an agreement by the end of 2006, and that will require a substantial commitment of U.S. leadership and resources. We need to look more to Asia for bilateral agreements as well. For example, South Korea is our seventh largest trading partner, with a two-way trade totaling $70 billion. Korea has promised real reforms in its agricultural markets. It has liberalized investment restrictions and lowered merchandise tariffs. I have met with Korean trade officials on several occasions, and they are serious about reforms. Regional trade agreements in Asia, perhaps under the auspices of APEC, also hold promise. APEC's 21-member economies account for a third of the world's population and about three-fifths of world production. American exporters will get a major boost from a regional free-trade agreement on this scale. We also need to seek out further sectoral agreements such as the WTO's hugely successful Information Technology Agreement negotiated largely by America, Japan, and Singapore. We should launch an initiative in the advanced medical equipment sector. Asia has a rapidly aging population, particularly in Japan, Korea, and China. This demographic shift translates into growing demand for advanced medical equipment. America already exports half a billion dollars a year in medical devices to China and Hong Kong, and these exports are expanding 12 percent a year. We need to do a better job of enforcing our existing trade agreements. In China, piracy--the theft of American copyrights and patents--is at epidemic levels. In the past 2 years, companies from General Motors to Sony to Cisco have complained that Chinese have stolen their intellectual property. More than 90 percent of software in China is stolen. American innovators are losing billions of dollars a year. Combating piracy would help the American economy far more than further agreements with countries whose entire economies are but a fraction the size of our losses to piracy alone. I need only mention CAFTA. CAFTA is a blip compared to other commercial interests we should be pursuing. China also maintains a troubling currency peg. But retaliatory tariffs are not the answer. Tariffs would violate our WTO commitments. Tariffs would inflame already difficult trade relations with China, invite Chinese retaliation in other areas, and make Chinese imports nearly a third more expensive. Tariffs would hurt American consumers who would pay more for many of the goods that they buy. And tariffs would hurt U.S. companies who rely on Chinese inputs to develop their own products. Having said that, China's currency peg is a problem. It distorts world markets and hurts both America and China itself. China needs to revise its currency policy. While issues with China dominate the headlines, there are other enforcement priorities, including in our own hemisphere. In Brazil for example, the government recently forced an American pharmaceutical company to reduce its price for one of its medicines. It did so by threatening to break its promise to protect the American company's patent, and to let a state-owned company make generic copies of the medicine, an outrage. This is blackmail, pure and simple. And it is illegal. This sort of coercion has no place in our trade relations. It hurts our companies and our workers. And it dampens the incentive to create new and innovative pharmaceuticals. Our problems with Brazil go beyond just pharmaceuticals. Until recently, Brazil banned the sale of genetically engineered seeds for use in agriculture. These are the kind of high-tech seeds American companies like Monsanto and Pioneer Hi-Bred develop and sell all over the world--but not in Brazil. How odd then, that roughly 30 percent of Brazil's soybeans are grown with genetically engineered seeds. The figure is nearly 90 percent in Brazil's southernmost state of Rio Grande do Sul. How can this be? Theft. These seeds were smuggled in from neighboring countries where they are allowed, and planted illegally. They were not purchased. They were stolen. And just like piracy in China, piracy in Brazil costs American industries dearly. Last year, American companies lost $930 million in Brazil because of piracy of audiovisual goods. Some estimate that three-quarters of these audiocassettes sold in Brazil are pirated. Of course we cannot launch a full-fledged WTO dispute to address each and every foreign trade barrier. And the U.S. Trade Representative often rightly attempts to resolve many of these issues through negotiation and other means. But there can be little doubt that trade enforcement has received a lower priority of late. In the 6 years from 1995 through 2000, the United States filed 67 WTO dispute settlement cases. In the 5 years since, we have filed only 12. That is about an 80 percent decrease. Too often, our tools to address trade barriers are lying unused, on the shelf. That burdens Americans with economic losses. But what is more, when Americans see that others are cheating, their enthusiasm for trade cools. And we all suffer as a result. Americans also cool to trade when they see nothing being done to help those who lose from trade. Lowering tariffs and barriers increases competition and benefits many more than it hurts, but it inevitably hurts some. For more than 40 years, the Government has been helping to retrain workers affected by trade to give them the skills that they need to find new jobs. These programs were expanded in 2002 under the Trade Adjustment Assistance Reform Act, a bipartisan effort and one of my proudest achievements as chairman of the Finance Committee at that time. The reforms expanded eligibility to new categories of workers, created a new health coverage tax credit, and helped older workers with a new wage insurance benefit. Last year, these programs helped nearly 150,000 workers. TAA is an integral part of a successful trade policy. A few weeks ago, I discussed this very issue with Federal Reserve Chairman Alan Greenspan during a Finance Committee hearing. Chairman Greenspan stated, as he has before, that our trade policy should ``assist those who are on the wrong side of the adjustment'' caused by trade. Lately, the Government has not supported TAA. This year, the administration's budget zeroed out funding for the TAA for Firms Program, which pretty much everyone agrees has been useful and cost effective. Last month, the Senate Finance Committee passed an amendment offered by my colleague from Oregon, Senator Wyden, to extend TAA benefits to workers in the service industry. The administration stripped the language out of the CAFTA implementing bill that it submitted to the Congress. Liberalizing trade requires a grand bargain with workers. Workers agree to be exposed to increased international competition It is helpful. But society agrees to erect a strong social safety net to help workers adjust. When workers' old skills become obsolete, society helps them learn new skills to compete. If we undercut this bargain, we do so at the peril of further trade liberalization and our international competitiveness. We must press forward with trade liberalization. For, 600 years later, international trade remains as vital to the world economy today as it was to Ming China. Trade allows Americans to specialize in what we do best. That allows us to improve our international competitiveness and maximize our standard of living. What Americans do best today is manufacture capital-intensive goods: airplanes, automobiles, and construction equipment. Americans invent whole new fields, like biotech and nanotechnology, that lead to new products to make our lives better. University of Michigan scientists recently used nanotechnology to deliver a powerful drug inside cancerous tumor cells, increasing the drug's cancer-killing activity and reducing its toxic side effects. Americans pioneer new services to make our lives better, like Internet banking. We export our services all over the world. Hollywood movies and American television programs are translated into countless languages and watched around the world. American universities educate students from virtually every country on Earth. American insurance companies insure assets in jungles, deserts, and savannas. And American ranchers and farmers feed and clothe people around the globe. Freer trade helps us find and open new markets for what Americans do best. New markets provide new opportunities for American workers and their companies. New markets mean greater demand for what Americans produce. And new markets mean more jobs and more investment opportunities to meet the demand. As we meet the demand of foreign consumers through trade, American products become global products. American brands become global brands. Coke is Coke, the world over. I might digress and say 40 years ago I hitchhiked around the world with a knapsack on my back in northern Ghana. I went to a little hut. I got off from the back of a truck. I was riding with the cattle in the back of the truck. My driver stopped to pray. He pointed his little prayer mat toward Mecca. In that little hut there was a little refrigerator, no electricity, and there was Coca-Cola. It was a world brand back then. Just think of all the world brands we could have today. On today's voyages, one can find the familiar yellow arches of McDonald's in Cyprus, Slovenia, and Oman. The American standard becomes the global standard and the international sign of excellence. Excellence means that half of the world's 20 largest companies are American companies--companies like Citigroup, IBM, and General Electric. Importing products from our trading partners challenges domestic companies to compete. Competition keeps American companies nimble. American companies are constantly coming up with new products and better ways to make them. Just look at the number of U.S. patents filed by Americans versus the rest of the world. Americans filed nearly 90,000 patents in 2003. That is 50,000 more than the next most innovative country, Japan. In innovation, we are still number one. The biggest payoff from international trade goes to the American consumer. As more and more companies trade and produce what they are best at producing, prices in supermarkets and department stores plummet. Cheaper products mean that we can afford more of what we need, and our standard of living improves. The now-ubiquitous cell phone provides a great example. Ten years ago, it was an unaffordable luxury for most Americans. Using one in public aroused curiosity, but trade forced prices to drop. Now many Americans see cell phones as a necessity. Leaders have not always appreciated the benefits of trade. After the stock market crash in 1929, America enacted the Tariff Act of 1930. That act imposed the now-infamous Smoot-Hawley tariffs that deepened the Great Depression. During the Presidential campaign of 1932, President Hoover warned that repealing the Smoot-Hawley tariffs would devastate the U.S. economy, why? Because Americans could not compete successfully with workers in poorer countries with lower wages and lower costs of production. It was Franklin Roosevelt who argued that worldwide reduction of trade barriers would benefit both America and its trading partners. Roosevelt's victory, along with his signing of the Reciprocal Trade Agreements Act, ushered in the modern era of American trade policy. During World War II, Secretary of State Cordell Hull argued that economic protectionism had fed the animosities that led to the war. He advocated freer trade in the postwar era as a bulwark for peace and prosperity. This vision led to the General Agreement on Tariffs and Trade, otherwise known as GATT, negotiated during the Truman administration. This forerunner to today's World Trade Organization brought down the disastrously high Smoot-Hawley tariffs and freed $10 billion of trade from duties. Democrats can be proud of our role in expanding free trade. Democratic administrations completed and implemented the last three rounds of GATT negotiations. In 1967, the Johnson administration completed the Kennedy Round. In 1979, the Carter administration completed the Tokyo Round. In 1994, the Clinton administration completed the Uruguay Round. The Clinton administration completed the North American Free Trade Agreement, negotiated the historic bilateral trade agreement with Vietnam, and granted permanent normal trade relations to China, ultimately paving the way for China's membership in the WTO. The success of trade liberalization has been spectacular, touching the lives and well-being of all Americans. Freer trade has lowered our tariffs from about 40 percent in 1946 to about 4 percent today, and made our trading partners do the same. Freer trade has increased our national income by nearly $1 trillion a year. Freer trade has increased the average American household's income by nearly $10,000 a year. Freer trade with China alone saves American households $600 each year. Today, 12 million Americans, 1 of every 10 workers, depend on exports for their jobs. International trade now accounts for a quarter of our gross domestic product, up from just 10 percent in the 1950s. Trade opens our lives to new opportunities and choices. Trade gives us new foods to eat, new movies to watch, and new products to buy. Strengthening trade ties also contributes to peaceful relations with our trading partners. Our quality of life improves as the world grows ever smaller, shrinking with the better communications and transportation links that develop with increased commerce. Back in China, Guangzhou Airport has a terminal designed by an American company, boarding gates supplied by a Danish company, and an air traffic control tower engineered by a company from Singapore. America's Dell Computers is giving the Chinese competitor Lenovo a run for its money in China. Dell now has become China's third-largest seller of PCs, and Dell now produces 3 million PCs in China, as many as Lenovo. America should welcome China's greater integration into the world market. It may mean that we will have to work a little harder, study a little bit harder, and think a little bit quicker to keep ahead. But those are talents at which Americans excel. In the middle of the 15th century, China made an abrupt change in foreign policy. Remember just earlier all those ships around the world? China turned inward and abandoned outward-looking trade. Imperial edicts banned overseas travel. To reduce commerce with foreign nations, the new Chinese dynasty burned a swath of land 30 miles deep for 700 miles of its southern coast. Any merchant caught engaging in foreign trade was tried as a pirate and executed. With the Emperor's death in 1435, the government put a stop to the voyages of the Treasure fleet. Chinese court officials destroyed the plans for the Treasure ships, the accounts of their voyages, and almost every map and document of the previous period. Sadly, China's golden Ming age came to an end, China's economy fell backward, and the treasure ships became shrouded in the mists of history. We cannot yet know whether the voyages of today's fleets of Chinese ships will lead to another golden age for China like that of the Ming Dynasty. But we also cannot expect that China will somehow once again abruptly reverse course and turn inward. That will not happen. Try as regimes after the Ming dynasty did, they could not erase the history of the Ming treasure fleets, whose voyages will leave a memory forever. Let us respond to today's Chinese fleets with the best spirit of the Ming admiral, and the best spirit of America. Let us work to advance freer trade, so that for America and for China, we can, in the words of the Ming admiral, ``manifest the transforming power of virtue.'' Let us work to advance freer trade, to make a better world both for ourselves, and for ``regions far away hidden in a blue transparency of light vapors.'' And let us work to advance freer trade, because both in terms of new innovations and new trading partners, America's greatest voyages of discovery still lie ahead of her. Mr. President, under the previous order, do we have up to 10 minutes reserved for the Senator from Massachusetts, Senator Kennedy?

Mr. BAUCUS. Mr. President, I ask unanimous consent that 10 minutes of that time be reserved for Senator Kennedy and that I may use such of the remaining Democratic time as I consume for a statement as in morning business.

Mr. BAUCUS

Mr. BAUCUS. Mr. President, I ask unanimous consent that the following interns have the privilege of the floor during the Senate's consideration of the Burma resolution: Andreas Datsopoulos, Julie Golder, and Adam Elkington.

Mr. BAUCUS

Mr. BAUCUS. Mr. President, in the Declaration of Independence, one reason our Founders decided for a revolution against King George was ``He has made judges dependent on his will alone.'' That same year, the Delaware Declaration of Rights and Fundamental Rules stated: That the independence and uprightness of judges are essential to the impartial administration of justice, and a great security to the rights and liberties of the people. In the Federalist Papers, explaining our great Constitution, Alexander Hamilton quoted Montesquieu to say: There is no liberty, if the power of judging be not separated from the legislative and executive powers. It is the independence of the Supreme Court that is at stake in the coming consideration of the Court's next nominee. Our Constitution embodies that independence of the Court in its separation of powers, in its checks and balances, and in its structure that provides of the President: He shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court. The Senate's active advice and consent role in the confirmation of a Supreme Court Justice helps to ensure that nominees have the support of a broad political consensus. The Senate's role helps to ensure that the President cannot appoint extreme nominees. The Senate's role helps to ensure that Justices are more independent from the President. Time and time again the history of our Supreme Court has demonstrated the importance of that independence. Time and time again, it has mattered that the Supreme Court had brave men and brave women who were willing to rule against the interests of the President. Time and time again, it has mattered that the President had to appoint independent thinkers that would withstand the tough scrutiny of the Senate. It mattered that we had an independent court when our Nation was young, in 1803, when the Supreme Court decided the case of Marbury v. Madison. It mattered that we had an independent court so that Chief Justice Marshall could write for the Court: It is emphatically the province and duty of the judicial department [that is the judiciary] to say what the law is. . . . If two laws conflict with each other, the courts must decide on the operation of each. . . . That is the very essence of judicial duty. Today, most take for granted this bedrock principle of judicial review set forth in Marbury v. Madison. But recall the plaintiff in that case, William Marbury, challenged President Thomas Jefferson's administration. If the President, Thomas Jefferson, had been able to appoint Justices without an effective check by the Senate, then perhaps the President would have been able to appoint Justices who believed as he did--as Jefferson did--when he wrote, in 1820, a letter saying: It is a very dangerous doctrine to consider the judges as ultimate arbiters of all constitutional questions. Just think for a second what that means. President Thomas Jefferson, back in 1820, wrote that it was unfortunate and dangerous doctrine to consider judges as the ultimate arbiters of constitutional questions. If it wasn't he, who would it be? Clearly, Thomas Jefferson thought it would be he, the President, not the Supreme Court. Without concern for the Senate's advice and consent, a more recent President might have appointed a Justice who believed as did former Attorney General Edwin Meese, 20 years ago, when Meese argued that the Supreme Court's interpretations of the Constitution, in his words, did not establish a ``supreme law of the land.'' That is Edwin Meese, who was U.S. Attorney General 20 years ago. And recall that Attorney General Meese asserted that the Reagan administration was free to rely on its own views on the meaning of the law. That is revolutionary, and I don't use that word unadvisedly. It is a long-established principle that the Constitution is what the Supreme Court says it is. It has to be. The Constitution is not what the President says it is, it is what the Supreme Court says it is. The judiciary is a free, independent, third branch of Government. It also mattered that we had an independent Supreme Court in 1952, when the Court decided Youngstown Sheet & Tube Company v. Sawyer, otherwise known as the ``steel seizure case.'' It was the time of the Korean War, and we faced a steel strike. President Truman tried to seize the steel companies in order to avert a strike. It mattered that we had an independent Supreme Court so that the Court could rule against President Truman--an independent arbiter saying: No, Mr. President, that is not proper; the Constitution doesn't permit that. It mattered that Justice Hugo Black was independent enough to write for the majority when he wrote: The Constitution limits his [that is, the President's] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. That is very clear. The Supreme Court stood up to the President and said, Mr. President, that is unconstitutional. It mattered that we had an independent Supreme Court in 1974, when the Court heard U.S. v. Nixon, otherwise known as the Watergate tapes case. Let's go back and review those facts. President Nixon fought against Special Prosecutor Leon Jaworski's subpoena to get the Watergate tapes. It mattered that we had an independent Supreme Court, so that the Court could rule against President Nixon's claim of executive privilege. The President thought he had that privilege. If he had his way, he would determine the rule of law in the United States. But, no, we had an independent third branch, the Supreme Court, which ruled that the President in his interpretation of the Constitution was incorrect. In effect, the Constitution was standing up for all of us as Americans, protecting our rights against Presidents who want to have their way, which Presidents want to do after they are in power after several years. It mattered that Chief Justice Warren Burger was independent enough to write for the majority in that case: Neither the doctrine of the separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. That, in effect, is what President Nixon was asking for. The Supreme Court stood up for our rights against a President. Earlier, in 1969, on appointing Justice Burger as Chief Justice of the Supreme Court, President Nixon had said: Our Chief Justices have probably had more profound and lasting influence on their times and on the direction of the Nation than most Presidents. Well, in the time of President Nixon, it certainly mattered that we had an independent Supreme Court. It mattered that we had an independent Supreme Court in 1963. In that year, the Supreme Court decided Gideon v. Wainwright, which upheld the right of counsel in State courts for people who could not afford a lawyer. A President might not want lawyers questioning the Government's prosecutors. Most Presidents don't. It mattered that an independent Supreme Court ensured that they can. It mattered that we had an independent Supreme Court in 1964, when that Court decided New York Times v. Sullivan. That case has a standard that public officials, including Presidents, would have to meet to sue those who criticize them for the conduct of their office. It mattered that we had an independent Supreme Court so that the Court could establish a rule against the interest of public officials, something public officials don't like. That is a standard that we don't like in this body. We don't particularly like it, but people can use it. It is the right decision. It makes it uncomfortable at times. The Court could rule that the first amendment protects the publication of statements about public officials, except when made with actual malice--that is, with knowledge that they are false or in reckless disregard of whether or not they are false. That was an independent Supreme Court. So it mattered that Justice William Brennan was independent enough to write the majority in that opinion, and he said: We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official contact. I imagine most Presidents don't like that if the Supreme Court says it is necessary in interpreting the Constitution to protect American rights. It mattered when we had an independent Supreme Court in 1954 when the Court decided Brown v. Board of Education. A Court that was dependent on the President might have wanted to skirt that issue of segregation, to duck the injustice of racial segregation in our schools. Why do I say that? Because Jim Newton, a Los Angeles Times editor and biographer of Chief Justice Earl Warren, has written that President Eisenhower, who appointed Chief Justice Warren, tried to influence the Chief Justice on that landmark case. Newton reports that during the period when the Court was considering Brown v. Board of Education, President Eisenhower invited Chief Justice Warren to join him at dinner with a number of guests. That was while that case was pending. It turned out that President Eisenhower had also invited one of the lawyers for the Southern States in the Brown case. As the President and Chief Justice stood up from the table--this was dinner, remember, with one of the lawyers for the Southern States there, a private dinner, Chief Justice Warren was there, and President Eisenhower, who appointed Chief Justice Warren, was there--as they stood up from the table, the President took the Chief Justice by the arm. The President motioned to others in the room and then whispered into the Chief Justice's ear: ``These are not bad people.'' The President told the Chief Justice that they were only concerned about their ``sweet little girls'' having to sit in school beside African-American children. That is what President Eisenhower said at that dinner to Chief Justice Warren when Brown v. Board of Education was pending. So it mattered that we had a Chief Justice who was independent enough not to listen to the President who appointed him. It mattered that Chief Justice Warren was independent enough to write for the majority: We conclude that in the field of public education the doctrine of ``separate but equal'' has no place. Separate educational facilities are inherently unequal. On that point, I don't know if it is true or not, but there are many scholars who say that the current Chief Justice wrote a memo to his judge he was working with when he was a clerk advocating separate but equal. That memo did not come out until after the Chief Justice was appointed and confirmed by the Senate. We here today can be justifiably proud that America has the oldest living written Constitution. When our Nation's Government was born, our Constitution was a novelty. Our Constitution created, in the words engraved over the west doorway of this Chamber, ``novus ordo seclorum''--``a new order of ages.'' As we examine the great variety of governments in the world today, Americans can still have pride that few nations possess such a charter. Few nations fervently protect their rights--very few, when you stop to think about it. It is astounding, it is amazing, and we do take it for granted. Few nations so preserve an independent supreme court. Our Constitution is our foundation. It sets forth our basic rights. It preserves our liberties against the eternal danger of the power of the Executive, sometimes against the power of the Congress but many times against the power of the Executive. Our Constitution preserves precious rights that must be protected, and that is why we must act zealously to ensure that the men and women we entrust to guard that valued heritage is truly independent. That is why we must remember, as Justice Charles Evans Hughes said in 1907: [T]he judiciary is the safeguard of our liberty and of our property under the Constitution. Our Constitution helps to preserve those rights through an ingenious system of checks and balances. Time and time again, our Constitution sets up structures that require two separate, coequal branches of Government to work together and agree before the Government can act. These structures were deeply rooted in the spirit of the times, back when the Constitution was written, that when two work together, one would propose and the other could veto. You can see that spirit in the original clause where the House can propose revenue measures, but the Senate can amend them. You can see that spirit in the presentation clause where the Congress can propose legislation but the President can veto it. And you can see that spirit in the nomination clause where the President can nominate judges but the Senate can block them. That was the ingenious development in the late 1700s to forge consensus; somebody can propose but the other can oppose. It forces cooperation, it forces consensus, it forces a better government. Thus, when the Senate decides whether to confirm a Supreme Court nominee, it is not beholden to the concerns of the President but to the deepest concerns and needs of the people. This is particularly true given lifetime tenure of a Supreme Court Justice and the need for Justices to staunchly defend the people's rights and liberties. My colleagues should recall that in the history of our Supreme Court, 13 Justices have served for more than 30 years. Justice Douglas served on the Court for more than 36 years, and the Justices appointed since 1970 have served for an average of 25 years. That is a long time. Therefore, it matters that we get good judges. It really matters. Over the years, this has been one of the issues of greatest importance to me as a Senator, and that is why I worked to set up a merit selection system in my State of Montana that is truly apolitical, truly independent, to select the judges for whom I would then recommend to the bench. It is very important to me. I said to the people helping me out: I don't care if they are Republicans or Democrats. I don't care if you recommend liberals or conservatives. You just give me the names of three of the very best people in our State who can then serve on the Federal bench because they are going to be there a long time, and they are so important. I am very proud--twice this happened, and each time the group I put together, which was totally balanced, came up with three very good names. It was difficult for me in sitting down with each of the three to decide who was the best of the three because they were all so good. I did the best I could, and I felt the process worked out very well and was of great value to the people of Montana and to the country. So it matters that we have an independent judiciary. To ensure we have an independent judiciary, it thus matters that Senators exercise their independent judgment in the nomination process. Senators should not act as rubberstamps for the President's choice. That would be a complete abrogation of senatorial responsibility--complete, total. It is our Founders' dream of an independent Supreme Court, helping to exercise the Constitution's intricate systems of checks and balances, that is at stake in this nomination process. The Senate's active involvement in the confirmation of Justices helps to ensure that the Supreme Court can lead that independent branch of Government. And in case after case, that independence of the Supreme Court, in turn, has ensured our personal rights and our liberties. We cannot take that for granted. The Senate can honor that independence by taking its constitutional responsibility to advise and consent very seriously. The Senate can honor that independence by withholding judgment on a nominee until the Judiciary Committee has conducted full and fair hearings. And the President can honor that independence by putting forth a nominee who meets three basic criteria: professional competence, personal integrity, and a view of important issues that is within the mainstream of the contemporary judicial thought. And the Senate can honor the independence of the Supreme Court by holding a nominee to each of these criteria before voting on whether to confirm. Let me review those three criteria. First, professional competency: The Supreme Court must not be the testing ground for the development of a jurist's basic values. He cannot learn on the job, nor should a Justice require further training. The stakes are simply too high. He must be very professionally competent on day one. Second, personal integrity: Nominees to our Nation's highest Court must be of the highest caliber. And, third, the nominee should fall within the mainstream of contemporary judicial thought. The next Justice must possess the requisite judicial philosophy to be entrusted with the Court's sweeping constitutional powers. A Senator should not oppose a nominee just because a nominee does not share that Senator's particular judicial philosophy. But the Senate must determine whether a nominee is within the broad mainstream of judicial thought--not an idealogue of the far left, not an idealogue of the far right but mainstream. Why? Because that is where America is. Also, we need a Judge who can exercise good judgment during the entire time he or she is on the Court. The average tenure since 1970 is 25 years. Times have changed. We don't want an idealogue who has one view or tends to have one view but, rather, somebody who is wise, above the fray, has perspective, listens, has good judgment, deeply understands the history of our country, especially its beginnings when our Constitution was written. The Senate must determine whether a nominee is committed to the protection of the basic constitutional values of the American people. So what are some of those values? One is the separation of powers of our Federal Government, including the independence of the Court itself. Another is freedom of speech. Boy, is that important, stronger in this country than any other on the face of this Earth. It is so important--so important. It helps make America what it is. Another is freedom of religion, the other side of the establishment clause. Freedom of religion, both direct and indirect, so people are free to worship whomever they choose and in whatever manner they wish. Equal opportunity, enshrined in the 14th amendment, is the basic bedrock American principle. Again, this is what made this country great. We are great for a lot of reasons, but one is because people want to come to this country and live. We don't see very many Americans heading for the door to get out of America. Americans want to stay in America, and other people want to come to America. Why is that? I submit largely it is opportunity, it is the freedom of opportunity, and no discrimination. Anybody who wants to make something out of himself or herself in America can. There are some practical limitations sometimes, but by and large, if you have the stuff in America, you are going to get there. It is freedom of opportunity. Another value is personal autonomy, the right to be left alone. That is very basic in America when we talk about freedoms in America. They are so important. Another freedom is the right to be left alone. Another is an understanding of the basic powers of the Congress to pass important laws, such as those providing for the protection of the environment. We are one country. General laws, especially under the commerce clause, are so important so that all of America can share in matters, not just the equal protection clause, but the commerce clause, sharing and protecting the environment. It is very important. We are one country. That is becoming more and more important each passing day. Why? Because of integration and large advances in communication technologies, all kinds of technologies. We are all so much of the same country together. Mainstream philosophy matters because some on the extreme would argue, as Justice Thomas did last month, that the Constitution's establishment clause in the Bill of Rights does not even apply to the States. Think of that for a moment. Justice Thomas said the Constitution's establishment clause in the Bill of Rights--that is the first amendment--does not even apply to the States. What does that mean? That means States can set up their own laws respecting the establishment of religion. I thought we were one country. I thought that issue was decided long ago. I thought most of the provisions of the Bill of Rights that applied to the Federal Government also applied to States. I thought that. I thought we were American. To even contemplate the thought of going backward, to even contemplate the thought that the establishment clause does not apply to States in and of itself sends shivers, I am sure, down the spines of virtually every American, let alone to advocate it as Justice Thomas has, and my recollection is not once but I think twice. Mainstream philosophy matters because some on the extreme would seek to abolish the right to privacy that the Court recognized 40 years ago in that famous case of Griswold v. Connecticut. There is an inherent right to privacy in the Constitution. Mainstream philosophy matters because some on the extreme would argue that the Congress cannot pass laws such as the Endangered Species Act or the Clean Water Act pursuant to the Constitution's commerce clause. They say the commerce clause prevents the Clean Water Act; the commerce clause prevents Congress from passing the Endangered Species Act. Think for a moment what that means and how far that could go. Many of us are concerned that this Court is a couple or three steps away from if not virtually eliminating the commerce clause and therefore Congress's ability to enact statutes, but going so far in that direction it is going to create havoc in this country. We will have more States doing separate sets of statutes because the commerce clause does not apply. Now, come on. Stop and think a second. That is revolutionary. Yet there are many who advocate that in this country, I am sure hoping the President appoints a nominee with just that view. I will bet dollars to donuts there are many pushing that view upon the President right now. These are extreme views. They are not mainstream. And the stakes are high. The Senate has a duty to ensure that the nominee will defend America's mainstream constitutional values. We have that duty. It is our responsibility as Senators. It is only fitting that the Senate set a very high standard. It is only fitting that the Senate distinguish Supreme Court nominations from other nominations, especially those for administrative positions. Administrative positions, that is the President's team, in deference to the President having his own people. We are not talking about the judicial branch. There is no deference to have your own people because we have established we want independent people. We want one's own people. We do not want the President's own people. We do not want the Congress's own people. We want independent people who are in and of themselves their own people. It is so important the Senate act with very high standards. Because of the importance of an independent Supreme Court, the President is not entitled to have the Senate confirm his nominee. There is no entitlement there. With some sadness, I have noted over the last several years that that trend is developing. It is becoming almost assumed that the Senate must confirm the President's nominee, that the President has that right. There is no right. The right is for the American people to stand up under the Constitution and do what is right for their people. And, yes, support a nominee who is truly independent, has personal integrity and is competent but, no, not support a nominee for the Supreme Court who does not have those requisite criteria. That is what is right. The Senate must set a very high standard. The next Supreme Court Justice will affect all of us and our children. This Justice will exercise extraordinary power. We must ensure that Justice's independence. The independence of the Supreme Court is a doctrine with deep roots in the history of our Nation. In 1765, the great British legal jurist, Sir William Blackstone, published his Commentaries, a book that was well read by our Founders. Every law student in America knows about Blackstone. Blackstone wrote: In this distinct and separate existence of the judicial power, in a . . . body of men, nominated indeed, but not removable at pleasure, by the crown, consists one main preservative of public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. In explaining our newly minted Constitution, Alexander Hamilton wrote in Federalist No. 78: [T]he judiciary is beyond comparison the weakest of the three departments of power. . . .[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that ``there is no liberty, if the power of judging be not separated from the legislative and executive powers.'' That says we in Congress cannot have our people on the Court. It also says the President cannot have his person on the Court. Rather a process so that the judge is his person on the Court, his own person. Hamilton continued: [L]iberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments. . . . That is pretty profound. And Hamilton warned: [F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches. . . . Marbury v. Madison years later helped establish the independence of the judiciary, saying the Constitution is what the Court says it says, and that has helped. But we all know Presidents have tried to change the Court in their own ways because they did not like what the Court was doing. FDR tried his court-packing plan. He did not like what the Supreme Court was deciding so he tried to influence the Court with court packing, and that did not work. Presidents have all kinds of ways to influence the Court. As I mentioned earlier, President Eisenhower very much tried to influence Justice Warren in Brown v. Board of Education. Fortunately, Justice Warren, who was appointed by President Eisenhower, stood up and said, no, separate but equal is not the law of the land. Rather, we should integrate. Hamilton then concluded: The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex- post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. So I call on the President, I call on my colleagues to defend that ``main preservative of . . . liberty.'' I call on the President, I call on my colleagues to defend the independence of the courts. I call on my colleagues in this Senate to actively exercise their constitutional duties of advice and consent. There are not many times in our lives as Senators when rising up and exercising our responsibilities is as important as this, not be a rubberstamp, but not vote no just because we have a different view of that person's judicial philosophy but, rather, doing the right thing, and the right thing is to make sure we have nominees of utmost personal integrity who are clearly professionally competent and who are in the mainstream and will not cater to extreme views of either the right or the left but stand above it all and decide cases in the right way. I yield the floor and I suggest the absence of a quorum.

Mr. BAUCUS

Mr. BAUCUS. Mr. President, I ask unanimous consent to speak as in morning business.

Mr. BAUCUS

Mr. BAUCUS. Mr. President, I ask unanimous consent to speak as in morning business.

Mr. BAUCUS

Mr. BAUCUS. Mr. President, in the Declaration of Independence, one reason our Founders decided for a revolution against King George was ``He has made judges dependent on his will alone.'' That same year, the Delaware Declaration of Rights and Fundamental Rules stated: That the independence and uprightness of judges are essential to the impartial administration of justice, and a great security to the rights and liberties of the people. In the Federalist Papers, explaining our great Constitution, Alexander Hamilton quoted Montesquieu to say: There is no liberty, if the power of judging be not separated from the legislative and executive powers. It is the independence of the Supreme Court that is at stake in the coming consideration of the Court's next nominee. Our Constitution embodies that independence of the Court in its separation of powers, in its checks and balances, and in its structure that provides of the President: He shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court. The Senate's active advice and consent role in the confirmation of a Supreme Court Justice helps to ensure that nominees have the support of a broad political consensus. The Senate's role helps to ensure that the President cannot appoint extreme nominees. The Senate's role helps to ensure that Justices are more independent from the President. Time and time again the history of our Supreme Court has demonstrated the importance of that independence. Time and time again, it has mattered that the Supreme Court had brave men and brave women who were willing to rule against the interests of the President. Time and time again, it has mattered that the President had to appoint independent thinkers that would withstand the tough scrutiny of the Senate. It mattered that we had an independent court when our Nation was young, in 1803, when the Supreme Court decided the case of Marbury v. Madison. It mattered that we had an independent court so that Chief Justice Marshall could write for the Court: It is emphatically the province and duty of the judicial department [that is the judiciary] to say what the law is. . . . If two laws conflict with each other, the courts must decide on the operation of each. . . . That is the very essence of judicial duty. Today, most take for granted this bedrock principle of judicial review set forth in Marbury v. Madison. But recall the plaintiff in that case, William Marbury, challenged President Thomas Jefferson's administration. If the President, Thomas Jefferson, had been able to appoint Justices without an effective check by the Senate, then perhaps the President would have been able to appoint Justices who believed as he did--as Jefferson did--when he wrote, in 1820, a letter saying: It is a very dangerous doctrine to consider the judges as ultimate arbiters of all constitutional questions. Just think for a second what that means. President Thomas Jefferson, back in 1820, wrote that it was unfortunate and dangerous doctrine to consider judges as the ultimate arbiters of constitutional questions. If it wasn't he, who would it be? Clearly, Thomas Jefferson thought it would be he, the President, not the Supreme Court. Without concern for the Senate's advice and consent, a more recent President might have appointed a Justice who believed as did former Attorney General Edwin Meese, 20 years ago, when Meese argued that the Supreme Court's interpretations of the Constitution, in his words, did not establish a ``supreme law of the land.'' That is Edwin Meese, who was U.S. Attorney General 20 years ago. And recall that Attorney General Meese asserted that the Reagan administration was free to rely on its own views on the meaning of the law. That is revolutionary, and I don't use that word unadvisedly. It is a long-established principle that the Constitution is what the Supreme Court says it is. It has to be. The Constitution is not what the President says it is, it is what the Supreme Court says it is. The judiciary is a free, independent, third branch of Government. It also mattered that we had an independent Supreme Court in 1952, when the Court decided Youngstown Sheet & Tube Company v. Sawyer, otherwise known as the ``steel seizure case.'' It was the time of the Korean War, and we faced a steel strike. President Truman tried to seize the steel companies in order to avert a strike. It mattered that we had an independent Supreme Court so that the Court could rule against President Truman--an independent arbiter saying: No, Mr. President, that is not proper; the Constitution doesn't permit that. It mattered that Justice Hugo Black was independent enough to write for the majority when he wrote: The Constitution limits his [that is, the President's] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. That is very clear. The Supreme Court stood up to the President and said, Mr. President, that is unconstitutional. It mattered that we had an independent Supreme Court in 1974, when the Court heard U.S. v. Nixon, otherwise known as the Watergate tapes case. Let's go back and review those facts. President Nixon fought against Special Prosecutor Leon Jaworski's subpoena to get the Watergate tapes. It mattered that we had an independent Supreme Court, so that the Court could rule against President Nixon's claim of executive privilege. The President thought he had that privilege. If he had his way, he would determine the rule of law in the United States. But, no, we had an independent third branch, the Supreme Court, which ruled that the President in his interpretation of the Constitution was incorrect. In effect, the Constitution was standing up for all of us as Americans, protecting our rights against Presidents who want to have their way, which Presidents want to do after they are in power after several years. It mattered that Chief Justice Warren Burger was independent enough to write for the majority in that case: Neither the doctrine of the separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. That, in effect, is what President Nixon was asking for. The Supreme Court stood up for our rights against a President. Earlier, in 1969, on appointing Justice Burger as Chief Justice of the Supreme Court, President Nixon had said: Our Chief Justices have probably had more profound and lasting influence on their times and on the direction of the Nation than most Presidents. Well, in the time of President Nixon, it certainly mattered that we had an independent Supreme Court. It mattered that we had an independent Supreme Court in 1963. In that year, the Supreme Court decided Gideon v. Wainwright, which upheld the right of counsel in State courts for people who could not afford a lawyer. A President might not want lawyers questioning the Government's prosecutors. Most Presidents don't. It mattered that an independent Supreme Court ensured that they can. It mattered that we had an independent Supreme Court in 1964, when that Court decided New York Times v. Sullivan. That case has a standard that public officials, including Presidents, would have to meet to sue those who criticize them for the conduct of their office. It mattered that we had an independent Supreme Court so that the Court could establish a rule against the interest of public officials, something public officials don't like. That is a standard that we don't like in this body. We don't particularly like it, but people can use it. It is the right decision. It makes it uncomfortable at times. The Court could rule that the first amendment protects the publication of statements about public officials, except when made with actual malice--that is, with knowledge that they are false or in reckless disregard of whether or not they are false. That was an independent Supreme Court. So it mattered that Justice William Brennan was independent enough to write the majority in that opinion, and he said: We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official contact. I imagine most Presidents don't like that if the Supreme Court says it is necessary in interpreting the Constitution to protect American rights. It mattered when we had an independent Supreme Court in 1954 when the Court decided Brown v. Board of Education. A Court that was dependent on the President might have wanted to skirt that issue of segregation, to duck the injustice of racial segregation in our schools. Why do I say that? Because Jim Newton, a Los Angeles Times editor and biographer of Chief Justice Earl Warren, has written that President Eisenhower, who appointed Chief Justice Warren, tried to influence the Chief Justice on that landmark case. Newton reports that during the period when the Court was considering Brown v. Board of Education, President Eisenhower invited Chief Justice Warren to join him at dinner with a number of guests. That was while that case was pending. It turned out that President Eisenhower had also invited one of the lawyers for the Southern States in the Brown case. As the President and Chief Justice stood up from the table--this was dinner, remember, with one of the lawyers for the Southern States there, a private dinner, Chief Justice Warren was there, and President Eisenhower, who appointed Chief Justice Warren, was there--as they stood up from the table, the President took the Chief Justice by the arm. The President motioned to others in the room and then whispered into the Chief Justice's ear: ``These are not bad people.'' The President told the Chief Justice that they were only concerned about their ``sweet little girls'' having to sit in school beside African-American children. That is what President Eisenhower said at that dinner to Chief Justice Warren when Brown v. Board of Education was pending. So it mattered that we had a Chief Justice who was independent enough not to listen to the President who appointed him. It mattered that Chief Justice Warren was independent enough to write for the majority: We conclude that in the field of public education the doctrine of ``separate but equal'' has no place. Separate educational facilities are inherently unequal. On that point, I don't know if it is true or not, but there are many scholars who say that the current Chief Justice wrote a memo to his judge he was working with when he was a clerk advocating separate but equal. That memo did not come out until after the Chief Justice was appointed and confirmed by the Senate. We here today can be justifiably proud that America has the oldest living written Constitution. When our Nation's Government was born, our Constitution was a novelty. Our Constitution created, in the words engraved over the west doorway of this Chamber, ``novus ordo seclorum''--``a new order of ages.'' As we examine the great variety of governments in the world today, Americans can still have pride that few nations possess such a charter. Few nations fervently protect their rights--very few, when you stop to think about it. It is astounding, it is amazing, and we do take it for granted. Few nations so preserve an independent supreme court. Our Constitution is our foundation. It sets forth our basic rights. It preserves our liberties against the eternal danger of the power of the Executive, sometimes against the power of the Congress but many times against the power of the Executive. Our Constitution preserves precious rights that must be protected, and that is why we must act zealously to ensure that the men and women we entrust to guard that valued heritage is truly independent. That is why we must remember, as Justice Charles Evans Hughes said in 1907: [T]he judiciary is the safeguard of our liberty and of our property under the Constitution. Our Constitution helps to preserve those rights through an ingenious system of checks and balances. Time and time again, our Constitution sets up structures that require two separate, coequal branches of Government to work together and agree before the Government can act. These structures were deeply rooted in the spirit of the times, back when the Constitution was written, that when two work together, one would propose and the other could veto. You can see that spirit in the original clause where the House can propose revenue measures, but the Senate can amend them. You can see that spirit in the presentation clause where the Congress can propose legislation but the President can veto it. And you can see that spirit in the nomination clause where the President can nominate judges but the Senate can block them. That was the ingenious development in the late 1700s to forge consensus; somebody can propose but the other can oppose. It forces cooperation, it forces consensus, it forces a better government. Thus, when the Senate decides whether to confirm a Supreme Court nominee, it is not beholden to the concerns of the President but to the deepest concerns and needs of the people. This is particularly true given lifetime tenure of a Supreme Court Justice and the need for Justices to staunchly defend the people's rights and liberties. My colleagues should recall that in the history of our Supreme Court, 13 Justices have served for more than 30 years. Justice Douglas served on the Court for more than 36 years, and the Justices appointed since 1970 have served for an average of 25 years. That is a long time. Therefore, it matters that we get good judges. It really matters. Over the years, this has been one of the issues of greatest importance to me as a Senator, and that is why I worked to set up a merit selection system in my State of Montana that is truly apolitical, truly independent, to select the judges for whom I would then recommend to the bench. It is very important to me. I said to the people helping me out: I don't care if they are Republicans or Democrats. I don't care if you recommend liberals or conservatives. You just give me the names of three of the very best people in our State who can then serve on the Federal bench because they are going to be there a long time, and they are so important. I am very proud--twice this happened, and each time the group I put together, which was totally balanced, came up with three very good names. It was difficult for me in sitting down with each of the three to decide who was the best of the three because they were all so good. I did the best I could, and I felt the process worked out very well and was of great value to the people of Montana and to the country. So it matters that we have an independent judiciary. To ensure we have an independent judiciary, it thus matters that Senators exercise their independent judgment in the nomination process. Senators should not act as rubberstamps for the President's choice. That would be a complete abrogation of senatorial responsibility--complete, total. It is our Founders' dream of an independent Supreme Court, helping to exercise the Constitution's intricate systems of checks and balances, that is at stake in this nomination process. The Senate's active involvement in the confirmation of Justices helps to ensure that the Supreme Court can lead that independent branch of Government. And in case after case, that independence of the Supreme Court, in turn, has ensured our personal rights and our liberties. We cannot take that for granted. The Senate can honor that independence by taking its constitutional responsibility to advise and consent very seriously. The Senate can honor that independence by withholding judgment on a nominee until the Judiciary Committee has conducted full and fair hearings. And the President can honor that independence by putting forth a nominee who meets three basic criteria: professional competence, personal integrity, and a view of important issues that is within the mainstream of the contemporary judicial thought. And the Senate can honor the independence of the Supreme Court by holding a nominee to each of these criteria before voting on whether to confirm. Let me review those three criteria. First, professional competency: The Supreme Court must not be the testing ground for the development of a jurist's basic values. He cannot learn on the job, nor should a Justice require further training. The stakes are simply too high. He must be very professionally competent on day one. Second, personal integrity: Nominees to our Nation's highest Court must be of the highest caliber. And, third, the nominee should fall within the mainstream of contemporary judicial thought. The next Justice must possess the requisite judicial philosophy to be entrusted with the Court's sweeping constitutional powers. A Senator should not oppose a nominee just because a nominee does not share that Senator's particular judicial philosophy. But the Senate must determine whether a nominee is within the broad mainstream of judicial thought--not an idealogue of the far left, not an idealogue of the far right but mainstream. Why? Because that is where America is. Also, we need a Judge who can exercise good judgment during the entire time he or she is on the Court. The average tenure since 1970 is 25 years. Times have changed. We don't want an idealogue who has one view or tends to have one view but, rather, somebody who is wise, above the fray, has perspective, listens, has good judgment, deeply understands the history of our country, especially its beginnings when our Constitution was written. The Senate must determine whether a nominee is committed to the protection of the basic constitutional values of the American people. So what are some of those values? One is the separation of powers of our Federal Government, including the independence of the Court itself. Another is freedom of speech. Boy, is that important, stronger in this country than any other on the face of this Earth. It is so important--so important. It helps make America what it is. Another is freedom of religion, the other side of the establishment clause. Freedom of religion, both direct and indirect, so people are free to worship whomever they choose and in whatever manner they wish. Equal opportunity, enshrined in the 14th amendment, is the basic bedrock American principle. Again, this is what made this country great. We are great for a lot of reasons, but one is because people want to come to this country and live. We don't see very many Americans heading for the door to get out of America. Americans want to stay in America, and other people want to come to America. Why is that? I submit largely it is opportunity, it is the freedom of opportunity, and no discrimination. Anybody who wants to make something out of himself or herself in America can. There are some practical limitations sometimes, but by and large, if you have the stuff in America, you are going to get there. It is freedom of opportunity. Another value is personal autonomy, the right to be left alone. That is very basic in America when we talk about freedoms in America. They are so important. Another freedom is the right to be left alone. Another is an understanding of the basic powers of the Congress to pass important laws, such as those providing for the protection of the environment. We are one country. General laws, especially under the commerce clause, are so important so that all of America can share in matters, not just the equal protection clause, but the commerce clause, sharing and protecting the environment. It is very important. We are one country. That is becoming more and more important each passing day. Why? Because of integration and large advances in communication technologies, all kinds of technologies. We are all so much of the same country together. Mainstream philosophy matters because some on the extreme would argue, as Justice Thomas did last month, that the Constitution's establishment clause in the Bill of Rights does not even apply to the States. Think of that for a moment. Justice Thomas said the Constitution's establishment clause in the Bill of Rights--that is the first amendment--does not even apply to the States. What does that mean? That means States can set up their own laws respecting the establishment of religion. I thought we were one country. I thought that issue was decided long ago. I thought most of the provisions of the Bill of Rights that applied to the Federal Government also applied to States. I thought that. I thought we were American. To even contemplate the thought of going backward, to even contemplate the thought that the establishment clause does not apply to States in and of itself sends shivers, I am sure, down the spines of virtually every American, let alone to advocate it as Justice Thomas has, and my recollection is not once but I think twice. Mainstream philosophy matters because some on the extreme would seek to abolish the right to privacy that the Court recognized 40 years ago in that famous case of Griswold v. Connecticut. There is an inherent right to privacy in the Constitution. Mainstream philosophy matters because some on the extreme would argue that the Congress cannot pass laws such as the Endangered Species Act or the Clean Water Act pursuant to the Constitution's commerce clause. They say the commerce clause prevents the Clean Water Act; the commerce clause prevents Congress from passing the Endangered Species Act. Think for a moment what that means and how far that could go. Many of us are concerned that this Court is a couple or three steps away from if not virtually eliminating the commerce clause and therefore Congress's ability to enact statutes, but going so far in that direction it is going to create havoc in this country. We will have more States doing separate sets of statutes because the commerce clause does not apply. Now, come on. Stop and think a second. That is revolutionary. Yet there are many who advocate that in this country, I am sure hoping the President appoints a nominee with just that view. I will bet dollars to donuts there are many pushing that view upon the President right now. These are extreme views. They are not mainstream. And the stakes are high. The Senate has a duty to ensure that the nominee will defend America's mainstream constitutional values. We have that duty. It is our responsibility as Senators. It is only fitting that the Senate set a very high standard. It is only fitting that the Senate distinguish Supreme Court nominations from other nominations, especially those for administrative positions. Administrative positions, that is the President's team, in deference to the President having his own people. We are not talking about the judicial branch. There is no deference to have your own people because we have established we want independent people. We want one's own people. We do not want the President's own people. We do not want the Congress's own people. We want independent people who are in and of themselves their own people. It is so important the Senate act with very high standards. Because of the importance of an independent Supreme Court, the President is not entitled to have the Senate confirm his nominee. There is no entitlement there. With some sadness, I have noted over the last several years that that trend is developing. It is becoming almost assumed that the Senate must confirm the President's nominee, that the President has that right. There is no right. The right is for the American people to stand up under the Constitution and do what is right for their people. And, yes, support a nominee who is truly independent, has personal integrity and is competent but, no, not support a nominee for the Supreme Court who does not have those requisite criteria. That is what is right. The Senate must set a very high standard. The next Supreme Court Justice will affect all of us and our children. This Justice will exercise extraordinary power. We must ensure that Justice's independence. The independence of the Supreme Court is a doctrine with deep roots in the history of our Nation. In 1765, the great British legal jurist, Sir William Blackstone, published his Commentaries, a book that was well read by our Founders. Every law student in America knows about Blackstone. Blackstone wrote: In this distinct and separate existence of the judicial power, in a . . . body of men, nominated indeed, but not removable at pleasure, by the crown, consists one main preservative of public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. In explaining our newly minted Constitution, Alexander Hamilton wrote in Federalist No. 78: [T]he judiciary is beyond comparison the weakest of the three departments of power. . . .[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that ``there is no liberty, if the power of judging be not separated from the legislative and executive powers.'' That says we in Congress cannot have our people on the Court. It also says the President cannot have his person on the Court. Rather a process so that the judge is his person on the Court, his own person. Hamilton continued: [L]iberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments. . . . That is pretty profound. And Hamilton warned: [F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches. . . . Marbury v. Madison years later helped establish the independence of the judiciary, saying the Constitution is what the Court says it says, and that has helped. But we all know Presidents have tried to change the Court in their own ways because they did not like what the Court was doing. FDR tried his court-packing plan. He did not like what the Supreme Court was deciding so he tried to influence the Court with court packing, and that did not work. Presidents have all kinds of ways to influence the Court. As I mentioned earlier, President Eisenhower very much tried to influence Justice Warren in Brown v. Board of Education. Fortunately, Justice Warren, who was appointed by President Eisenhower, stood up and said, no, separate but equal is not the law of the land. Rather, we should integrate. Hamilton then concluded: The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex- post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. So I call on the President, I call on my colleagues to defend that ``main preservative of . . . liberty.'' I call on the President, I call on my colleagues to defend the independence of the courts. I call on my colleagues in this Senate to actively exercise their constitutional duties of advice and consent. There are not many times in our lives as Senators when rising up and exercising our responsibilities is as important as this, not be a rubberstamp, but not vote no just because we have a different view of that person's judicial philosophy but, rather, doing the right thing, and the right thing is to make sure we have nominees of utmost personal integrity who are clearly professionally competent and who are in the mainstream and will not cater to extreme views of either the right or the left but stand above it all and decide cases in the right way. I yield the floor and I suggest the absence of a quorum.

Mr. BAUCUS

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

Mr. BAUCUS

Mr. BAUCUS. Mr. President, I rise as a cosponsor of the ``Medicare Value Purchasing Act of 2005.'' This bill will establish a new program to link a portion of Medicare's reimbursement for health care services to the quality of that care. This bill takes a crucial step towards improving the value of our health care dollar as well as the safety and quality of our Nation's health care system. Last week, I gave a statement in this Chamber about America's place in the world. I am proud of our Nation; I am proud of our enterprising spirit, our energy, our diversity, and the hope for a better future that is inherent to our roots. I am proud of this country, but I am disappointed in the state of our health care system and in the impact it is having on the lives of our fellow citizens, as well as on the economy and ultimately on our place in the world. As I look to the future, I see a stronger America, but I know we must work hard to make sure that vision is realized. We hear about the problem of increasing health care costs nearly every day--in newspaper headlines and in casual conversations. Per capita spending on health care in America is nearly 2\1/2\ times the average in the industrialized world. We spend over $5,000 per person on health care, and premiums for employer-sponsored coverage are rising five times faster than inflation. With all this money going into health care, one might assume we had the best health care in the world. But that assumption is wrong. Despite spending more per capita than any other developed nation, the World Health Organization ranks the United States 37th in health care quality. As many as 98,000 patients die each year as a result of medical errors, and research has shown that in some cases more care, more specialists, and more treatments, actually result in worse outcomes for the patient. Costs are rising, we are not getting high-quality care for the dollars spent, and due to the nature of our health care system much of this burden is borne by employers. For the first time, the Big Three automakers are beginning to charge premiums and scale back benefits for their workers and retirees, because they can't afford the cost of health care. All told, GM estimates that they will spend about $6 billion in 2005 on health care. This translates into $1,525 for every vehicle they sell. That is more than the company spends on steel. By comparison, Toyota's health care costs are about $1,000 less per vehicle. It is not surprising, therefore, that a recent survey of business leaders found that 65 percent of top Chief Financial Officers in the United States feel that it is very important for Congress to address the cost of health care. Their European and Asian counterparts did not cite the costs of health care among their top concerns. No other industry tolerates the level of disrepair that can be found in the U.S. health care system today. Many of my colleagues in the Senate agree that in order to improve the system, we need to do more to control health costs through efficient purchasing and the use of health information technology. In other words, we need to create a ``culture of efficiency'' in health care. How do we do that? First, we need to begin building a health information infrastructure that can reach providers and patients nationwide, from Manhattan, NY to Manhattan, MT. We must take aggressive steps to establish standards and policies around this infrastructure, and to make initial investments in hardware, software, and training. I applaud my colleagues Senator Enzi and Senator Kennedy for introducing important legislation on this topic today, the ``Health Information Technology and Quality Improvement Act of 2005''. Building a Health Information Infrastructure will facilitate the provision of high-quality care. But we also must begin rewarding quality in the way we pay for health care. Today, Medicare payment policies typically do not include mechanisms designed to encourage quality of care. Medicare does not distinguish between paying for care that is necessary and that which might be unnecessary or inappropriate. As a result, I worked with Senator Grassley to design a program that will tie a portion of Medicare reimbursement for hospitals, physicians, health plans, renal dialysis facilities, and home health agencies to the quality of care provided in these settings. Payment for these providers, as well as for Skilled Nursing Facilities, would also be linked to reporting data on quality of care and, after the first year of the program, to making this data available to the public. The Medicare Value-Based Purchasing program would begin paying for value in the health care system--good care, better patient outcomes, evidence-based medicine, and increased transparency. We have learned a lot from programs such as this that have begun on a smaller scale in the private sector, and we hope that taking this step forward in Medicare will drive the entire health care system toward a system of high-quality, high-value health care. But designing a program like this one is not easy, and I want to be clear on this point: I don't believe Congress should determine how the quality of health care is measured. That is why my bill sets up a system of stakeholder involvement at every step in the development and implementation of a Quality Measurement System for Medicare--in determining what measures of health care quality are appropriate for each provider group, in implementing a system of data collection and analysis, and in updating the measurement system in accordance with changing science. Providers, payers, patients, and many other groups are the key experts who should be involved in the details of a health care quality system--not Congress. But it is our job to lay out some of the parameters for the system, and to provide the Secretary of Health and Human Services with the authority to follow them and create this new program. It is also our job to oversee such a program once it is enacted and implemented. Over the last year or so, we have met with provider groups, consumer organizations, researchers and policy experts, and many of the individuals who have built and participated in private-sector programs to drive quality improvement in health care. As I mentioned, our bill sets up a process by which a quality measurement system is developed in consultation with stakeholders and is uniquely tailored for the different groups of providers who participate in Medicare. This system should measure the quality of health care in a variety of ways, looking at processes of care, health information technology infrastructure, patient outcomes, patient experience of care, efficiency of resource use, and equity. For some groups of providers, only a very few measures of health care quality will be available when the program begins. These providers should not be penalized for that, but rather rewarded for reporting and improving the quality of the care they provide according to those measures. We may start small in some cases, but we can get the ball rolling. The bill sets up a two-phase approach to quality improvement. In the first phase, the annual update to a provider's reimbursement is tied to reporting data on quality of care. This data would be on the measures included in the Medicare Quality Measurement System which has been developed by the Secretary with stakeholder involvement. Some providers--such as hospitals, Medicare Advantage Plans, and renal dialysis facilities, are already reporting data on quality of care to Medicare and might move more quickly to the second phase of the program. In the second phase, those providers who report data on quality of care to the Secretary will be able to participate in value-based purchasing, where a portion of total payments to participants in each provider group is taken to form a quality pool. The funds in this pool are then reallocated to award providers who demonstrate high-quality care, or who show that they are improving. In theory, this sets up a system in which all providers could receive money back out of the pool--in essence it is a system that will ``raise all boats.'' Following the recommendation of the Medicare Payment Advisory Commission, the portion of payments tied to quality in this second phase will be 1 percent in the first year of the program for each provider group, and will increase to 2 percent over five years. In addition to setting up this program, the ``Medicare Value Purchasing Act of 2005'' includes additional measures to facilitate quality improvement in the health care system, such as a provision to reduce the legal barriers to health IT adoption that are present in the Federal anti-kickback and Stark laws. It also includes several studies to look more closely at the true costs of health care, and the benefits--both human and financial--that can be gained from improving quality. The information generated by these studies will be critical in moving forward with value-based purchasing, allowing us to more accurately predict the program-wide savings from efforts to improve quality. Given that the Medicare Part A Trust Fund faces insolvency in 2020--decades earlier than Social Security--identifying these savings will be critical to preserving access, to care for Medicare beneficiaries and adequate reimbursement for providers. Senator Grassley and I set out to write a bill that would address value-based purchasing, set up a system of measuring quality of care in Medicare, and encourage the adoption of health information technology. We set out to write a bill that, in concert with the bill introduced by Senators Enzi and Kennedy would create a roadmap to a ``culture of efficiency'' in health care. That means that our bill does not put new money on the table to reward health care quality, and it does not fix the problems that currently exist with the physician payment system or with reimbursement updates to renal dialysis facilities. But nor does it mean that we are blind to these issues. Indeed, I know that sustained cuts to the physician fee schedule, which will take effect if current law is not changed--are not sustainable. I want to work with physicians and practitioners to find a sustainable solution to the problems with the physician fee schedule, and I want to work with the renal dialysis community to make sure that reimbursement is adequate so that facilities--especially those in underserved areas--can keep their doors open. But I also ask these providers to work with me to move Medicare in the right direction-- ultimately, better quality and value means better health care, better coverage, and a stronger system for all. Finally, I believe that quality improvement efforts should extend beyond Medicare, into the Medicaid and SCHIP programs, and into the private sector. Currently, programs at the State level have found ways to improve quality and find efficiencies through health information technology use in Medicaid. Our bill includes State government health program representatives in the process of developing the Quality Measurement System because we believe they have important perspective to share, and also because we believe that quality improvement policies are equally important for their programs. I look forward to working with Chairman Grassley on a bill to address quality of care in the Medicaid and SCHIP programs later this year. I want to thank my colleagues Chairman Grassley, Chairman Enzi, and Senator Kennedy, as well as their able health care staff, for their tireless work on this legislation. We feel passionately about this issue because it matters to all of us. We all want to ensure that the best care possible is provided. We know how hard health care providers work for their patients, and we believe they should be rewarded for that work. And we believe this issue should be advanced in the Congress as soon as possible. As I said, I have a vision of a stronger America. I envision a health care system in which quality and value are rewarded, in which innovative health information technology is accessible to all, in which data systems that can exchange crucial patient information to save lives and prevent mistakes, and in which American companies are not at a competitive disadvantage in the world because of health care costs. I call on my colleagues to support the important steps toward that vision that will be taken under the pieces of this legislation introduced today.

Mr. BAUCUS. Mr. President, today, I am pleased to be joined by my two friends and Finance Committee colleagues, Senator Jeffords and Senator Kerry, in filing legislation to close a loophole in the 2003 tax cut bill. The Jobs and Growth Tax Relief and Reconciliation Act of 2003 provided for lower rates of taxation on dividend income. Formerly, taxpayers paid ordinary income rates on dividend income. Now, individuals who receive dividends are taxed at either a 15 percent for upper-income taxpayers, or a 5-percent rate for lower-income taxpayers. Further, in 2008, this lower rate becomes zero before the whole provision expires in 2009. The demand for lower rates was premised on the claim that dividend income was subject to double taxation; that is, taxed once by the corporate entity and then again by the shareholder. Assuming that is the case, then if we are sure the corporate entity is not subject to tax, the dividend should not be afforded the special rate. In fact, we heard testimony today in the Taxation Subcommittee that corporations with little or no taxes at the entity level really receive an additional benefit from the dividend tax break. Current law, however, allows dividends from ``qualified'' foreign corporations to benefit from these lower rates if the company is based in a U.S. possession, or based in a country with which the U.S. has a tax treaty, or has stock which is traded on a U.S. stock exchange. Senator Jeffords, Senator Kerry, and I have become concerned that the definition of qualifying foreign corporations is overly broad and may encompass companies in tax haven countries with little or no tax system. Providing this special benefit for such companies simply because its stock is traded on a U.S. exchange does not meet with the original intent of the legislative change. Our bill would shut down this loophole by modifying the ``stock exchange'' test to only allow this special rate for companies based in countries with a comprehensive income tax system. By doing this, we will address a current inequity between dividend-paying stocks and make sure that only stock of companies subject to tax at the corporate level enjoys this preferential rate. With every tax bill we enact, it is important to review the provisions from time to time to make sure the law works as intended. Here, I believe we have found a significant and unintended loophole. Certainly, as we debate whether to extend, expand, or eliminate these preferential rates, we should also be open to improvements in the current law. I encourage my colleagues to join with us in working for such an improvement.