Jeff Bingaman

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, today I am pleased to introduce the United States-Mexico Transboundary Aquifer Assessment Act. This bill is the result of a field hearing I conducted in Las Cruces, NM two years ago during my tenure as the Chairman of the Energy and Natural Resources Committee. The focus of the hearing was water resource issues that were developing along the U.S.-Mexico border-- particularly the area encompassing Las Cruces, El Paso, Texas, and Juarez, Mexico. There had long existed an ongoing effort to address water quality issues and waste-water infrastructure needs in the border region, but I was concerned that issues regarding the availability of future water supplies were growing. The testimony at that hearing made clear that there exists little consensus on how growing communities in the border region will address their future water needs. In particular, I was struck by the lack of agreement on the long-term viability of future groundwater sources, many of which involve aquifers underlying communities in both the United States and Mexico. Given the rapid population growth along the U.S.-Mexico border and the increasing demand for water, there is a strong need to gain a common understanding of the limits of our shared groundwater resources. A thorough understanding of the resource is the first step to avoiding conflicts similar to those that have arisen between the United States and Mexico over shared surface waters--e.g. the Rio Grande. The United States-Mexico Transboundary Assessment Act is intended to address the lack of binational consensus regarding the source and availability of future water supplies along the border. It will do this by establishing a scientific program, involving entities on both sides of the border, to comprehensively assess priority transboundary aquifers. The information and scientific tools developed by this program will be extremely valuable to State and local water resource managers in the border region. This effort is to be led by the United States Geological Survey (USGS) working closely with the border states and local entities. Over the last several years the USGS has been working with key stakeholders in the border region to design this technical program. I understand that establishing this scientific program and accurately assessing our shared water resources is just a step towards developing the long-term plans and solutions that will help avoid future international disputes concerning scarce water supplies. This small step, however, is an important one, and is recognized by a number of organizations familiar with the need for cooperative efforts between the United States and Mexico on shared water resources. In its 6th Report on the U.S.-Mexico Border Environment, the Good Neighbor Environmental Board, an independent federal advisory committee managed by the U.S. Environmental Protection Agency, recommended the initiation of a ``border-wide groundwater assessment program to systematically analyze priority trans-boundary aquifers.'' Also, the Center for Strategic and International Studies, in a January 2003 report of its U.S.-Mexico Binational Council, included as one of its recommendations that Mexico and the United States ``improve data collection, information gathering, and transparency as the first step to developing a long-term strategy for water management.'' Ultimately, the necessary long-term strategy will have to be developed by the communities and other water users who reside along the border. Working with each other and their state water resource agencies, I believe successful strategies can be developed so long as the information that is the basis for the plans is the most accurate possible. In that respect, the USGS has a strong and important role to play. This bill will ensure that the USGS will be able to fulfill this role which, in turn, will enhance the prospects for our border communities to plan for their future and manage their growth in a manner that ensures their long-term viability and prosperity. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I want to speak for just a few minutes today on an issue on which I have introduced a bill. The bill is S. 1966. It is a bill to require a report on the detainees being held at Guantanamo Bay, Cuba. The purpose of this legislation is to shed some light on the process that is being used by this administration to determine the status of so-called enemy combatants who are held by our Government at Guantanamo Bay Naval Base. It has now been nearly 2 years since the first detainees arrived at Guantanamo as prisoners of the United States. Yet these individuals are still being held in what most would refer to as legal limbo. My colleagues will recall that on July 16, I urged the Senate to adopt an amendment to the Defense appropriations bill. That amendment was tabled 52 to 42. It is essentially the same provision--it contained the same provisions I have now put into S. 1966, this freestanding legislation I have introduced. The day after that amendment was defeated I sent a letter to Secretary Rumsfeld expressing my concern over the apparent lack of any kind of legal process being extended to the detainees being held at Guantanamo. Only recently I received a reply from the Department of Defense. In that letter, the Department of Defense maintains that it: . . . reviews on a regular basis the continued detention of each enemy combatant and assesses the appropriate disposition of each individual case. According to the Defense Department, at the time they wrote back to me, they said that the review had resulted in the release of 64 detainees who were determined to no longer pose a threat to the United States, and more releases were expected. However, the letter fails to address the more important question, which is whether the Department's review of these detainees is being done in accordance with any recognized civilian or military legal process. I ask unanimous consent to have the letter printed in the Record at the conclusion of my remarks.

Mr. BINGAMAN. What prompted me to come to the floor of the Senate today was an article I saw in the morning paper. This appeared in various papers around the country, but the one I have here in front of me is from the Boston Globe. It says: The U.S. military sent home 20 ``enemy combatants'' last weekend who were being held without trial at Guantanamo Bay Naval Base in Cuba, only to replace them with the same number of new prisoners. It has a quotation from a spokesperson for the military saying: We cannot talk about any of the individuals that may have departed the island due to security concerns. According to this article, all those transferred last week have been returned, many of them to Pakistan, and all of those transferred last weekend, according to representatives from the countries they are citizens of, said they will be released once they have arrived in those countries. The figure now, as I understand it, is there are 88 suspects who have been transferred out of Guantanamo Bay. Four were released, 4 were handed over to Saudi Arabia, and the remaining 650 or 700 are still there. As this article indicated, we continue to add additional people to this prison we are operating there at Guantanamo. There are various complaints described in the article by foreign diplomats about the process we are following. There is a statement by the attorney for one of the human rights organizations that has complained bitterly about the improvisational policy decisions and the arbitrary power over prisoners at the base. My motives for offering this legislation are very simple. While I obviously have concerns about judicial treatment and the failure of any kind of legal process being followed in the treatment of these detainees in Guantanamo, I am even more concerned about the implications of this treatment we are affording these individuals for our own fighting forces as well as our international reputation. The bill I filed here in the Senate today requires the Secretary of Defense to report on the status of these detainees, including the process that was utilized to determine that status for those who have already been released from Guantanamo. The bill requires the Secretary to provide information related to this release, how long they were detained, the conditions of their release, if any, the explanations of why the Department of Defense has now determined these individuals could be released after what has in many cases been a very long detention. For the remaining detainees--those who are still at Guantanamo--the administration has still refused to provide ``access to an impartial tribunal to review whether any basis exists for [detainees] continued detention.'' The detainees have not been allowed to speak with their families or their counsel, nor have they been informed of any charges against them, as far as I am informed. The bill I filed requires that within 90 days of its enactment the Secretary of Defense provide the Senate with information related to the process used to categorize and hold these detainees. It does not call for release of the detainees. It does not in any way, shape, or form require the release of any classified information other than to the chairman and vice chairman of the Senate and House committees. The amendment merely seeks to clarify for the Senate and for the Congress the process by which the detainees' status is determined. Like most Americans, I have always thought that what distinguished our country in the history of the world was our commitment to individual freedom and to the rule of law; that the bedrock of a free society is the obligation taken by the Government to afford individuals with certain legal protections, and as a Nation committed to these principles we have been instrumental in the formulation and enforcement of international law, particularly when it came to the treatment of prisoners of war. For over 75 years, the United States has adhered to the Geneva Convention. Even during conflicts with insurgents and irregular forces, we have adhered to the Geneva Convention. Whenever our Nation has gone to war, we have taken pride in going above and beyond the requirements of international law as set out in the third Geneva Convention of 1929. In fact, the Department of Defense has adopted its own detailed regulations and doctrine and field manuals built on the provisions of the Geneva Convention which have guided our military through many conflicts regardless of size and scope and duration. These regulations we have in our own military, like international law, do not contemplate the legal limbo we are holding these detainees in at Guantanamo. Neither the Geneva Convention nor the established military regulations define or use the term the President is using here. This term, unlawful combatant, is a new term which has come up in order to sidestep the requirements both of the Geneva Convention and of our own military regulations. Army Regulation 190-8 provides an effective and efficient process to categorize the detainees on the battlefield. According to that provision, detainees must be classified either as an enemy prisoner of war, a recommended retained person entitled to enemy prisoner-of-war protections, an innocent civilian who should be immediately returned to his or her home or released, or a civilian internee who, for reasons of operational security, or probable cause incident to criminal investigation, should be retained. Such internees have the right to appeal the order directing their internment by challenging the existence of imperative security reasons that led to their detention. The President's unilateral determination of the detainee's status at Guantanamo Bay signals a significant departure from the spirit of the Geneva Convention and a significant departure from the letter of established military regulations. In stark contrast to our Government's previous commitment to adherence to the rule of law and human rights, this administration has adopted a position that once the President designates that a person is a so-called enemy combatant or unlawful combatant, a term created by the administration, that person can be locked up and held incommunicado as long as the President desires, with absolutely no legal rights; no right to review of that decision. This means even if the administration makes a mistake or is given faulty information, it is virtually impossible for the person involved to prove his or her innocence because not only can they not talk to a lawyer or to family members, but they do not have the right even to know what they are being charged with. The U.S. Supreme Court has agreed to consider the narrow question of whether the Federal courts have the power to hear challenges to the detainees' imprisonment. This is a significant move towards restoring the system of checks and balances, which needs to be restored--the system of checks and balances our Founders felt was essential to preserving liberty in the country. Similarly, the bill I have filed begins to fulfill Congress's constitutional responsibility to oversee what the executive branch does. It calls on the administration to tell us whether its actions are in accordance with military regulations and doctrine. Our goal is to bring transparency to the issue and to fulfill Congress's constitutional role of oversight of the executive. We should know what process the administration is using to determine the status of these detainees. My concern is much broader than what happens to these particular detainees. I am concerned about the impact of our treatment of these detainees on the treatment of our own military personnel who are captured in future conflicts. Former U.S. diplomats and judge advocate generals and even former U.S. prisoners of war filed ``friend of the court'' briefs in the Supreme Court questioning the legality and wisdom of the administration's policy of open-ended detentions at Guantanamo. Some of those briefs were extremely thoughtful, in my view. One former diplomat wrote: It has been the experience of each of us that our most important diplomatic asset has been this Nation's values. . . . The hint that America is not all that it claims, that it . . . can accept that the Executive Branch may imprison whom it will and do so beyond the reach of due process of law demeans and weakens this Nation's voice abroad. In their brief, former judge advocate generals, the military's legal prosecutors and those most familiar with the law as it applies to enemy prisoners of war, strongly argue: To be sure, this is a perilous time, as the President has stated. But that does not justify indefinite confinement without any type of hearing or judicial review. The United States played a major role in the development and adoption of the Geneva Conventions. The requirements of those Conventions. The requirements of those Conventions are incorporated directly into American Military Regulations. American failure to provide foreign prisoners with the protections of the Geneva Conventions may well provide foreign authorities, in current or future conflicts, with an excuse not to comply with the Geneva Conventions with respect to captured American military forces. Just as compelling are the stories told in the ``friends of the court'' brief filed by former prisoners of war. They argue that as a result of their own experience as prisoners of war, the United States has an interest ``in fostering the development, acceptance and enforcement of international norms pursuant to which prisoners of war and others captured during armed conflicts will be treated humanely and in accordance with the rule of law.'' They emphasize, that in particular, they ``wish to ensure that the treatment by the Untied States of foreign detainees . . . is such that the United States and former American POWs retain the moral authority to demand fair and humane treatment for any future Americans detained by foreign governments.'' However, nothing more clearly demonstrates this point than the actual stories themselves. Leslie H. Jackson, Edward Jackfert, and Neal Harrington are former prisoners of war. Mr. Jackson was captured by the Germans, who adhered to the Geneva Conventions. Mr. Jackfert and Mr. Harrington were held by Japan, which had not ratified and did not purport to follow international law. If you will allow me to read them their brief: Mr. Jackson was captured by the German Army on April 24, 1944, when his B-17 bomber crashed. Jailed and interrogated for approximately one week, he was then transported to Stalag 17, a converted concentration camp. In his 13 months of captivity, Mr. Jackson was granted the bare necessities: shelter, minimal food, and the ability to socialize with other American POWs. While the experience was harsh and unpleasant, Mr. Jackson was never tortured or otherwise hurt by the German guards. To follow the terms of the Geneva Conventions of 1929, to which Germany was a party, Mr. Jackson's German captors placed the appropriate Geneva Convention signage in the barracks, permitted the international Red Cross to ship basic necessities to POWs, and allowed a Geneva inspector to survey the premises. Mr. Jackson believes that his survival and relatively good health while in captivity are the result of the German Army's adherence to the 1929 Geneva Conventions. The experiences of Mr. Jackfert and Mr. Harrington in the custody of Japan, which had not ratified and did not purport to follow the 1929 Geneva Conventions, offer a sharp contrast. Both men were serving with the U.S. Army in the Philippines when it surrendered to the Japanese in 1942, and both subsequently served several years of hard captivity beyond the reach of any Geneva Convention protections. Both were part of the Bataan Death March and its well-documented horrors. Mr. Harrington was forced into slave labor in a Japanese coalmine, and saw his compatriots starved, beaten and killed. Mr. Jackfert was also forced into slave labor and suffered the extreme effects of heavy labor, cruelty and inadequate nourishment, going from 125 pounds to 90 pounds in a matter of months. There was no Geneva signage, no recognition of prisoner rights, and virtually no Red Cross access. Nor were the experiences of Mr. Harrington and Mr. Jackfert atypical. Studies have determined that the death rate of U.S. Military personnel interned by Japan was as high as 40 percent while the death rate of personnel captured and interned by Germany was little more than 1 percent. . . . Moreover, while it was rare for American POWs detained in Germany to be tortured, the opposite was true for American POWs in Japan. No one can adequately impart the suffering most allied prisoners endured [in Japan]. . . . They were beaten, kicked, robbed . . . and were buried alive. . . . [T]he overwhelming majority endured ``hell on earth.'' Again, let me say, I am in no way suggesting that the detainees are not being treated humanely. In fact, from all information I have received, they are being treated humanely. But what I and these briefs that were filed in the Supreme Court are suggesting is that our failure to adhere to some recognized legal process in determining the status of these detainees opens the door for other countries to refuse to adhere to any legal process as well. It may very well result in arbitrary confinement and harsh treatment or other inhumane practices applied to our own citizens. This bill will help Congress fulfill its duties and obligations as outlined in the Constitution and in U.S. law and regulation. I hope we can quickly pass this legislation when we return for the second session of the Congress in January. I yield the floor. Exhibit 1 [From the Boston Globe, Nov. 25, 2003] US Releases 20 Detainees, Transfers 20 More to Cuba (By Charlie Savage) Washington.--The U.S. military sent home 20 ``enemy combatants'' last weekend who were being held without trial at Guantanamo Bay naval base in Cuba--only to replace them with the same number of new prisoners. The prisoner transfer, the first such movement since mid- July, followed a determination by senior military and intelligence officials that the outgoing group ``either no longer posed a threat to U.S. security or no longer required detention by the United States,'' according to a statement the Department of Defense released yesterday. ``We can't talk about any of the individuals that may have departed the island due to security concerns,'' said Lieutenant Colonel Pamela Hart, a spokeswoman for the isolated facility at which the United States detains and interrogates suspected terrorists. But a high-ranking Pakistani official, who said yesterday that at least five of the outgoing transferees were Pakistani citizens, offered a chilly reaction to the Pentagon's news. ``The government is happy, but this is too damn late,'' said Imran Ali, second secretary of the Pakistan Embassy, adding that 21 Pakistanis have been released from Guantanamo, but another 37 are still there. ``Their lives have been destroyed. Their families have gone through psychological trauma, since they were not terrorists; they were just low-level Taliban fighters.'' The Pakistani official's reaction illustrated the pressure on the United States to resolve the situation--especially from allies in the war on terrorism who have expressed concern for their citizens who are among the 660 prisoners from 42 countries being held at the base. Although the State Department has been negotiating with a number of countries to continue the detention of some, all those transferred last weekend will be released by their countries, U.S. officials said. The Pentagon statement said that ``at the time of their detention, these enemy combatants posed a threat to U.S. security.'' It offered little information about the new arrivals, except that they were transferred from U.S. Central Command in the Middle East. Navy Lieutenant Commander Barbara Burfeind, a Pentagon spokeswoman, said none of the new detainees were captured in Iraq. The weekend transfers of the detainees bring to 88 the number of Al Qaeda or Taliban suspects who have been transferred out. Of those, 84 were released and four were handed over to Saudi Arabia. Ruth Wedgwood, an international law professor at Johns Hopkins University, said the arrival of the 20 new detainees follows a flare-up of fighting by Taliban insurgents in Afghanistan. Wedgwood has defended the Bush administration's position that the rules of the Geneva Conventions do not apply to the detainees because they were not soldiers of a regular Afghan army. ``Dismayingly, the Taliban have become very active again in the southern area, so really . . . the war isn't over in that area,'' she said. Not among those who were transferred for release, according to a senior Pentagon official, were the three ``juvenile enemy combatants''--Afghans ages 13 to 15 who were captured fighting alongside the Taliban and whose detention at the prison has attracted particularly intense international criticism. The commander of Guantanamo operations, Major General Geoffrey Miller, had recommended that they be sent home in August. U.S. officials say they have been coordinating with UNICEF in the event that the young fighters are released. UNICEF, a United Nations agency that has offered to handle the juvenile combatants, runs a program to ease the reintegration of former child soldiers back into their home societies. ``The State Department and UNICEF will make sure that if they're returned to Afghanistan, they won't just be plopped down,'' a Pentagon official told The Boston Globe last week. Ken Hurwitz of the Lawyers Committee for Human Rights, a New York-based organization, said that the surprise release reflected the military's ``improvisational'' policy decisions and its arbitrary power over the prisoners at the base. ``It's the rule of law that's the point,'' he said. ``They're saying, `Trust us, and we'll do the right thing.' But there is no right thing unless it's pursuant to some kind of ordered, lawful proceeding.'' Challenges to the detentions that have been filed in federal court have so far been dismissed because the base is located on Cuban soil--it has been leased and controlled by the United States for a century--and outside the jurisdiction of U.S. sovereignty. Two weeks ago, the Supreme Court said it would review the question of whether federal court jurisdiction may extend there. In a related development, the lawyer for Army Captain James ``Yousef'' Yee, the former Muslim chaplain at Guantanamo who was arrested in September in the alleged mishandling of classified material, sent a letter to President Bush yesterday asking that his client be released from pretrial detention for Thanksgiving and his daughter's birthday. ``These charges do not warrant pretrial confinement of any kind,'' Eugene Fidell wrote in the letter. ``While military sources initially reported a wild laundry list of suspected offenses, such as spying or aiding the enemy, these have now been reduced to two relatively minor [charges]. . . . Nonetheless, he is being treated as if the original laundry list of charges was the legal basis for his confinement. This is totally wrong and unfair.'' Sean McCormack, a spokesman for the National Security Council, said he would look into the letter, but had no comment on the president's behalf.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I want to speak for just a few minutes today on an issue on which I have introduced a bill. The bill is S. 1966. It is a bill to require a report on the detainees being held at Guantanamo Bay, Cuba. The purpose of this legislation is to shed some light on the process that is being used by this administration to determine the status of so-called enemy combatants who are held by our Government at Guantanamo Bay Naval Base. It has now been nearly 2 years since the first detainees arrived at Guantanamo as prisoners of the United States. Yet these individuals are still being held in what most would refer to as legal limbo. My colleagues will recall that on July 16, I urged the Senate to adopt an amendment to the Defense appropriations bill. That amendment was tabled 52 to 42. It is essentially the same provision--it contained the same provisions I have now put into S. 1966, this freestanding legislation I have introduced. The day after that amendment was defeated I sent a letter to Secretary Rumsfeld expressing my concern over the apparent lack of any kind of legal process being extended to the detainees being held at Guantanamo. Only recently I received a reply from the Department of Defense. In that letter, the Department of Defense maintains that it: . . . reviews on a regular basis the continued detention of each enemy combatant and assesses the appropriate disposition of each individual case. According to the Defense Department, at the time they wrote back to me, they said that the review had resulted in the release of 64 detainees who were determined to no longer pose a threat to the United States, and more releases were expected. However, the letter fails to address the more important question, which is whether the Department's review of these detainees is being done in accordance with any recognized civilian or military legal process. I ask unanimous consent to have the letter printed in the Record at the conclusion of my remarks.

Mr. BINGAMAN. Mr. President, today I am pleased to introduce the United States-Mexico Transboundary Aquifer Assessment Act. This bill is the result of a field hearing I conducted in Las Cruces, NM two years ago during my tenure as the Chairman of the Energy and Natural Resources Committee. The focus of the hearing was water resource issues that were developing along the U.S.-Mexico border-- particularly the area encompassing Las Cruces, El Paso, Texas, and Juarez, Mexico. There had long existed an ongoing effort to address water quality issues and waste-water infrastructure needs in the border region, but I was concerned that issues regarding the availability of future water supplies were growing. The testimony at that hearing made clear that there exists little consensus on how growing communities in the border region will address their future water needs. In particular, I was struck by the lack of agreement on the long-term viability of future groundwater sources, many of which involve aquifers underlying communities in both the United States and Mexico. Given the rapid population growth along the U.S.-Mexico border and the increasing demand for water, there is a strong need to gain a common understanding of the limits of our shared groundwater resources. A thorough understanding of the resource is the first step to avoiding conflicts similar to those that have arisen between the United States and Mexico over shared surface waters--e.g. the Rio Grande. The United States-Mexico Transboundary Assessment Act is intended to address the lack of binational consensus regarding the source and availability of future water supplies along the border. It will do this by establishing a scientific program, involving entities on both sides of the border, to comprehensively assess priority transboundary aquifers. The information and scientific tools developed by this program will be extremely valuable to State and local water resource managers in the border region. This effort is to be led by the United States Geological Survey (USGS) working closely with the border states and local entities. Over the last several years the USGS has been working with key stakeholders in the border region to design this technical program. I understand that establishing this scientific program and accurately assessing our shared water resources is just a step towards developing the long-term plans and solutions that will help avoid future international disputes concerning scarce water supplies. This small step, however, is an important one, and is recognized by a number of organizations familiar with the need for cooperative efforts between the United States and Mexico on shared water resources. In its 6th Report on the U.S.-Mexico Border Environment, the Good Neighbor Environmental Board, an independent federal advisory committee managed by the U.S. Environmental Protection Agency, recommended the initiation of a ``border-wide groundwater assessment program to systematically analyze priority trans-boundary aquifers.'' Also, the Center for Strategic and International Studies, in a January 2003 report of its U.S.-Mexico Binational Council, included as one of its recommendations that Mexico and the United States ``improve data collection, information gathering, and transparency as the first step to developing a long-term strategy for water management.'' Ultimately, the necessary long-term strategy will have to be developed by the communities and other water users who reside along the border. Working with each other and their state water resource agencies, I believe successful strategies can be developed so long as the information that is the basis for the plans is the most accurate possible. In that respect, the USGS has a strong and important role to play. This bill will ensure that the USGS will be able to fulfill this role which, in turn, will enhance the prospects for our border communities to plan for their future and manage their growth in a manner that ensures their long-term viability and prosperity. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, throughout the conflict in Iraq, our brave soldiers have carried out their duties with strength, with honor, and with courage. They have never faltered in their service to this nation or the world. That is why I am so troubled that some of our servicemembers and their families believe that current Department of Defense policies may be failing them, with grievous consequences. That is why I rise today to submit a Sense of the Senate Resolution that asks for reconsideration of the policies surrounding the current smallpox and anthrax immunization programs. Specifically it asks the Secretary of Defense to reconsider the mandatory nature of its smallpox and anthrax vaccine immunization programs pending the development of new and better vaccines that are currently under development; reconsider adverse actions taken against servicemembers on the basis of refusal to take the smallpox or anthrax vaccines; and reevaluate, with the intelligence community, the current threat of anthrax and smallpox attacks on our troops, in an effort to reflect current operational realities when considering the continuation of a mandatory vaccination program. It also urges the Department of Veterans Affairs to assess these adverse events being reported with respect to the smallpox and anthrax vaccines, research causal relationships, and estimate a future cost to the Department of Veterans Affairs to treat these conditions. Vaccines are an important factor in ensuring protection of our nation's military personnel from health threats--both natural or from biological weapons--in overseas conflicts. However, the current smallpox and anthrax vaccines have real and serious consequences that must be weighed against the potential benefits. This is why the President has made development of a modern anthrax vaccine a national priority in his last two State of the Union addresses and why the Institute of Medicine urged the government to do so in March 2002. What are the consequences of a policy that makes it mandatory that military personnel get the anthrax and smallpox vaccines? First, there are a growing number of adverse events reported in conjunction with these two vaccines, which is in sharp contrast to other vaccines. Second, there is a morale problem in the military associated with the mandatory nature of requiring military personnel to take these shots that has a serious negative impact on the recruitment and retention of our military personnel. Third, the long-term consequences of the vaccine programs for the health and well-being of our military personnel and our veterans is in question and should be addressed. Ensuring the health and well-being of our military personnel before, during and after serving our country should always be a top priority of our nation. The major potential benefit of any vaccine would be force protection. Unfortunately, there are major questions that arise with this argument concerning the anthrax and smallpox vaccines. First, even if there was a threat, such a threat against our troops in the conflicts in Iraq and Afghanistan has been significantly diminished. Second, there are other mechanisms to address any potential exposure, including post-exposure vaccination and antibiotics. This was the effective treatment used in the Senate after the anthrax exposure in 2001. Third, we do not even know if the anthrax vaccine works at all on inhalation anthrax or weaponized anthrax, so the vaccine may be completely ineffective anyway. For our brave men and women serving in harm's way, all too often the first threat they face is not when their boots hit the ground in Baghdad, Iraq, or Kandahar, Afghanistan--the first threat many servicemembers believe they face may be in line at the home station when they receive their anthrax and smallpox vaccinations. There is a growing number of disturbing reports about how some of our servicemembers have contracted health problems shortly after receiving the anthrax and smallpox vaccines. These illnesses include mysterious pneumonia-like illnesses, heart problems, blood clots, and other medical conditions that have stricken otherwise young, healthy, and strong military personnel. It has even resulted in death. This is not entirely surprising, in light of the fact that the Food and Drug Administration, or FDA, has identified a number of adverse reactions associated with these two vaccines. With respect to the anthrax vaccine alone, in 2002 the FDA required the anthrax vaccine product label be revised and it now includes approximately 40 serious adverse events. As it reads, ``Approximately 6% of the reported events were listed as serious. Serious adverse events include those that result in death, hospitalization, permanent disability or are life- threatening.'' The FDA also raised the rate of systemic reactions by up to 175 times over the previous 1999 product label, from 0.2 percent to 5-35 percent Meanwhile, in light of adverse events that exceed those for other vaccines and other concerns about the smallpox vaccine, both the Institute of Medicine and the Advisory Committee on Immunization Practices recently issued recommendations calling for a pause in the Federal Government's smallpox vaccination program. Meanwhile, both CBS News and UPI have identified a growing number of deaths and severe illnesses that they claim point to the anthrax and smallpox vaccines. These include the deaths of Army SP4 Joshua Neusche, Army SGT Michael Tosto, LTC Anthony Sherman, Army SP4 Rachel Lacy, Army SP4 Zeferino Colunga, Army SP4 Cory Hubbell, Army SP4 Levi Kinchen, Army SSG Richard Eaton, Jr., Army PVT Matthew Bush, Army SSG David Loyd, and Army SP4 William Jeffries. Eight of these 11 Army personnel were under the age of 25. As Dr. Jeffrey Sartin, and infectious disease doctor at the Gundersen Clinic in La Crosse, WI, said, ``I would say that the number of cases among young healthy troops would seem to be unusual.'' The numbers of those with adverse health events is significantly higher. There have been around 700 adverse events reported in just the first 6 months of this year and this is as part of a reporting system that has been found to significantly under-report adverse events. In addition, there are the reports of problems at both Ft. Stewart and Ft. Knox with respect to sick and injured soldiers who have been waiting weeks and sometimes months for medical treatment. Senators Leahy and Bond should be commended for drawing attention to those problems and getting the military to move to address it. What remains disturbing is that many of those who are ill and on ``medical hold'' were never deployed. At Ft. Stewart, Senators Bond and Leahy found that one-third of the 650 soldiers awaiting medical care and follow-up evaluations were not physically qualified for deployment and therefore never deployed overseas. At Ft. Knox, according to a UPI story, 369 of the 422 soldiers at Ft. Knox did not deploy to Operation Iraqi Freedom because of their illnesses. This includes, according to the story, ``strange clusters of heart problems and breathing problems, as did soldiers at Ft. Stewart and other locations.'' These are health problems that are often cited as adverse events accompanying the anthrax and smallpox vaccines. Once again, there is a surprising number of such cases in what are otherwise a strong, healthy, and young group of people. We certainly do not know whether these cases have been caused by the anthrax or smallpox vaccines at this point. In fact, these personnel desperately await any medical treatment and that must be addressed. While the military works to address that problem, they should also reconsider the mandatory nature of the anthrax and smallpox vaccines, as they may be contributing heavily to the problem. In the case of Army SP4 Rachel Lacy, who loved her country and volunteered to deploy to the Persian Gulf, she was ordered to take the anthrax vaccine and did so without objection. Within days, she started to suffer pneumonia and flu-like symptoms. Within weeks, she was dead. The coroner listed ``post-vaccine'' problems on the death certificate for Rachel Lacy and said, ``it's just very suspicious in my mind . . . that she's healthy, gets the vaccinations and then dies a couple weeks later.'' The Army is, according to published reports, conducting an investigation of the 100 or more soldiers that have gotten pneumonia in Iraq and southwestern Asia. Of those 100, 2 have died and another 13 have had to be put on respirators. According to a story published in both the New York Times and Washington Post on November 19, 2003, as part of that investigation, the Advisory Committee on Immunization Practices and the Armed Services Epidemiology Board said the evidence ``strongly favors'' the belief that vaccines led to the death of Rachel Lacy. It was an important admission and yet the military immediately said its vaccination policies would ``not be changed.'' Rachel's father, Moses Lacy, has asked, ``Let's stop this, re- evaluate what we're doing, re-evaluate the risks.'' That is a reasonable request and our nation's servicemembers and families deserve it. We owe it to the Lacy family and to all our military personnel and their families. As a result of the concerns of servicemembers and their families that these vaccines are having on their health and well-being, it must also be noted that the anthrax and smallpox vaccines are having serious consequences for our nation's military readiness. In September 2002, the General Accounting Office reported that 69 percent of trained and experienced pilots and aircrew members in the Guard and Reserve reported that the anthrax shot was the major influence in their decision to change their military status in 2002, including leaving the military entirely. Responding to the serious recruitment and retention problems caused by the mandatory anthrax vaccine policy, in February 2000, my colleague and then Presidential candidate John McCain called for a moratorium of this policy. Unfortunately, the safety concerns Senator McCain noted then have not been resolved. The military continues to deny problems with the vaccine while simultaneously operating a clinic at Walter Reed Army Medical Center to treat the illnesses caused by the vaccine. Instead of reconsidering its policy, the DOD has, instead, aggressively moved against those who have refused the vaccines. After his testimony before the House Government Reform Committee, Major Sonnie Bates, the highest ranking officer to refuse the anthrax vaccination, was charged under article 15 of the Uniform Code of Military Justice and the Department of Defense moved to court-martial him. After accusations of reprisal came from the Congress, the Department of Defense backed down and discharged Major Bates. There is also the case of Air Force Captain John Buck, M.D. He was court-martialed for refusing the anthrax vaccine in a trial in which the judge refused to allow the jury to hear the doctor's views on its safety and efficacy. After he was convicted, fined $21,000, and denied a promotion he had earned, Dr. Buck deployed to the Indian Ocean after September 11th to support U.S. military operations in Afghanistan. He was awarded a medal for his service in support of Operation Enduring Freedom and subsequently given an honorable discharge. In fact, the military has court-martialed soldiers throughout the military for refusing the anthrax vaccine, including a case this spring in New York of Private Rhonda Hazley who refused the vaccine because she was breast-feeding her child. One of the things this resolution asks is for the Department of Defense to reconsider adverse actions taken against servicemembers on the basis of refusal to take the smallpox or anthrax vaccines. The court-martialing of a woman that refused these vaccines because she was breast-feeding is particularly disturbing. It is important to note that the FDA revised the product label for the anthrax vaccine from ``a possible risk'' to a ``known risk'' to pregnant women because of ``positive evidence of human fetal risk based on adverse reaction data from investigational or marketing experience or studies in humans.'' While Private Hazley was no longer pregnant, the FDA does believe the ``pregnancy and lactation are a clinical continuum.'' Once again, the risks of the vaccine would appear to far outweigh the benefit to a mother and mechanic in the Army. The DOD's actions in such cases have created a climate of distrust and fear within the ranks of the military. This comply or be discharged or prosecuted policy is of great concern to our brave young men and women in uniform, and in the case of Private Hazley, to her child. Again, due to this policy, many soldiers, sailors, airmen and marines to reevaluate their commitment to the military. The military has argued that we need a mandatory program with respect to our nation's military personnel as part of ensuring force protection. However, I understand that our allies--both the British and Australians--have not made the anthrax vaccines mandatory in the Iraqi Freedom Operation. As those two nations weighed the potential consequences of requiring all military personnel to get the vaccines versus any potential benefit, they came down on the side of making the vaccine voluntary. In the case of the British military, more than half the armed forces personnel deployed in the Gulf have refused to be vaccinated against anthrax. The British Ministry of Defense spokesman said that this policy would remain voluntary ``in accordance with long-standing medical practice.'' Of interest, British army units that would be responsible for dealing with suspect chemical and biological sites are given the smallpox vaccine but still are not required to get the anthrax vaccine. For those that have agreed to accept the anthrax vaccine among British troops, they are reporting a large number of adverse events. According to a report by the British National Gulf Veterans and Families' Association, they anticipate adverse reaction among ``at least 6,000 new cases as a result of the Iraq conflict--about 30 percent of the 22,000 troops who had the anthrax vaccination.'' In addition to the policy of our allies that military personnel should be able to make their own decisions regarding the anthrax vaccine, another reason they have made the vaccine voluntary is that we do not even know whether the anthrax vaccine is effective against inhalation or weaponized anthrax. Furthermore, even if we had truly thought there was strong evidence that the Iraqi government had and was preparing to use biological weapons such as anthrax against the United States military, the report by Weapons Inspector David Kay in September indicates that threat has been found to be lacking or non-existent. There appears to be little evidence available that Al Qaeda or Saddam have the capability to deliver anthrax or smallpox against our troops in Iraq or Afghanistan. Even if there was such a threat, it is likely extremely small at this point. Again, if nothing else, this change in the threat to our troops requires an immediate reevaluation of DOD vaccination policy. Even if you still think there is some potential benefit of these vaccinations, it must be further weighed against whether there is another mechanism available that would have the same effect. We in the Senate, for example, know very well that the treatment of anthrax exposure via antibiotics works very well. The Senate was faced with the choice of having those exposed undergo a course of antibiotics versus getting the anthrax vaccine and the vast majority of those exposed to anthrax choose to take the antibiotic treatment rather than volunteer to take the anthrax vaccine. In fact, the current Majority Leader, Senator Frist, said at the time the anthrax vaccine was offered to Senate employees potentially exposed to anthrax, ``I do not recommend widespread inoculation for people with the vaccine in the Hart Building. There are too many side effects and if there is limited chance of exposure the side effects would far outweigh any potential advantage.'' Again, in weighing the potential benefit of the vaccine versus the option of antibiotics, the vast majority decided in support of the latter option. Our military personnel certainly deserve the option that many Senate personnel chose for themselves and what it seems the Secretary of Defense chose for himself when he acknowledged on October 25, 2001--in the midst of the anthrax attacks--that he was not taking the anthrax vaccine. When the President was running for our Nation's highest office, he said with respect to questions posed to him in the September 2000 issue of U.S. Medicine, ``The Defense Department's Anthrax Immunization Program has raised numerous health concerns and caused fear among the individuals whose lives it touches. I don't feel the current administration's anthrax immunization program has taken into account the effect of this program on the soldiers in our military and their families. Under my administration, soldiers and their families will be taken into consideration.'' Some of our nation's servicemembers and their families believe that the current policy of this Administration does not adequately take soldiers and their families into consideration. They believe we are, in fact, failing to ensure the health and well-being of our military personnel and we must do better. Before closing, I would like to particularly note the long-standing work by Congressman Christopher Shays on this issue. In a report issued by the House Committee on Government Reform in April 2000, the report states, ``many members of the armed services do not share that faith [that the DOD places in the anthrax vaccine]. They do not believe merely suggestive evidence of vaccine efficacy outweighs their concerns over the lack of evidence of long term vaccine safety. Nor do they trust DOD has learned the lessons of part military medical mistakes: atomic testing, Agent Orange, Persian Gulf war drugs, and vaccines. Heavy handed, one-sided informational materials only fuel suspicions the program understates adverse reaction risks in order to magnify the relative, admittedly marginal, benefits of the vaccine.'' Many of the findings by Congressman Shays, such as the concerns by military servicemembers are even more valid today with the introduction of the smallpox vaccine to the list of vaccines required by the military. Consequently, I urge the passage of this Sense of the Senate urging the Department of Defense to reconsider the mandatory nature of its smallpox and anthrax vaccination programs and to minimize the use of these vaccines pending the current development of new and better vaccines. I also plan to introduce legislation early next year, as the Institute of Medicine recommended back in 1999, to establish a National Center for Military Deployment Health Research. Our nation's servicemembers deserve our best efforts to assure their health and well-being. As the IOM said in making the recommendation to establish a National Center for Military Deployment Health Research, ``Veterans' organizations were instrumental in developing the idea for a national center for the study of war-related illness and postdeployment health issues, and these organizations continue to support the national center concept.'' We owe this to our nation's servicemembers and veterans and I look forward to working with them over the coming months in the development of that long-needed legislation.

Mr. BINGAMAN

Mr. BINGAMAN. I thank the Chair. (The remarks of Mr. Bingaman pertaining to the introduction of S. 1966 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I thank the chairman of the committee. I appreciate the chance to speak briefly on this bill. It is a very important piece of legislation. I congratulate the Senator from Iowa on the hard work he has put into this legislation. I do not share his conclusion about it at this stage, but I certainly admire the work he has put in and admire the good job he does as chairman of the committee on which I serve. When the 2000 Presidential campaign was underway, I saw one of the debates between then-Governor Bush and then-Vice President Gore. Both of them in that debate endorsed the enactment of a prescription drug benefit for seniors for Medicare beneficiaries. I remember thinking when I saw that, this is one good thing that will come out of this campaign in the next few years, no matter who wins. But what I had in mind as a prescription drug benefit was a very different animal than what we have in these 1,100 pages that have been referred to repeatedly. What I had in mind was a benefit where Medicare beneficiaries would be able to sign up for a prescription drug benefit. It would be voluntary. They could sign up or not. They could then pay a monthly premium. They would get a card. They could take that card, go to the pharmacy and get their prescription drugs. They might have to pay a copay. They might have to pay some deductible. But it was basically the adding of a prescription drug benefit to Medicare. That is what I thought both candidates were talking about. That is not what we have in these 1,100 pages. Had we decided to enact that, it could have been done in a much smaller document. I regretfully have to oppose the conference report for H.R. 1 as it comes before us tonight and tomorrow. I will cite six reasons I have come to that conclusion. The first reason is that the bill, in my view, over time, will undermine traditional Medicare. The second reason is that the bill requires the Government to overpay private health plans by tens of billions of dollars. The third reason is that the bill actually will harm many senior citizens who are intended to benefit. Fourth, the bill will increase drug costs rather than reducing them. Fifth, the bill will dramatically increase the complexity and volatility of the Medicare system for many of our seniors. Finally, the sixth point is that the bill will increase the financial burden on States and make it more difficult for each of our States to maintain the benefits they provide through their Medicaid programs to low-income patients. Let me start with the problem that I see of this bill undermining traditional Medicare. Today, 88 percent of all of those 41 million people who are served by Medicare are enrolled in traditional Medicare. The major thrust of this bill is not to add a prescription drug benefit but instead to do what is euphemistically referred to as ``modernize'' Medicare. Now, there are definitely some things we should do to modernize Medicare. I would agree with that. But as that term is used in this discussion, most of the time it is a code word, meaning that we should move people--seniors and disabled individuals--out of traditional Medicare into the private health care system. That is what is meant by a lot of our colleagues when they talk about modernizing Medicare. There are two good reasons for moving people out of traditional Medicare into the private health care system, as I see it. I could certainly favor doing that if we could accomplish these purposes. The first, obviously, would be to make the program more efficient and save money--save some taxpayer dollars by moving these people out of the Government plan into a private plan. The second, of course, would be if we could improve services, increase the satisfaction of Medicare beneficiaries by moving them into the private plan. Let me just show this chart. Medicare cost growth: This relates to the first of those two points. Medicare has historically controlled costs far better than either private health care plans have, or even better than the Federal Employees Health Benefits Program, FEHBP. We all take great pride in the FEHBP program and talk about how this is a great benefit and we should extend it to others. Between 1969 and now, Medicare's costs have increased at an annual rate of 8.9 percent a year, which stands in contrast to the 11 percent growth rate in the private health insurance arena and 10.6 percent growth rate in FEHBP. So the ideology of this drive to modernize Medicare or move people out of traditional Medicare into the private system does not match the evidence. In fact, the recent record is even more dramatic. Between 1996 and 2003, Medicare's per capita growth was 4.2 percent compared to 5.9 percent for private health plans and 5.3 percent for FEHBP. Medicare wins the contest going away. But maybe some are willing to pay higher costs, so this chart should make that point. The red line shows the increase in costs from 1970 to the end of the century in private insurance. The blue line shows the increase in the cost of Medicare. They have both gone up, but Medicare has gone up less rapidly. We might still be willing to pay more--pay the amount required to put people on this red line if, in fact, we had greater patient satisfaction by doing so. There is a recent study by the Commonwealth Fund, published in Health Affairs, and it is reflected on this chart. It is hard to read because the colors are too similar. What is reflected is that of those with private health insurance, there were 51 percent of those who were satisfied, and 62 percent of those in traditional Medicare were satisfied with their coverage. That is the case, despite the fact that Medicare benefits are less generous and its beneficiaries are more elderly and disabled and have higher health needs than individuals in the private health care system. So the bill seeks to move people out of traditional Medicare into private health plans. It does so by dramatically overpaying the private health plans. Let me move to my second point. Since managed care is not more efficient than traditional Medicare, the conference report concludes that the way to get people into these private health plans is to spend billions of dollars in overpayment to those plans. The legislation begins by setting its benchmark for payments to private plans at 109 percent of what Medicare fee for service would have to spend for those beneficiaries. It does so in other ways as well, including giving health plans money that Medicare otherwise would pay to a disproportionate share of hospitals, to graduate medical education, and the cost of veterans retiree health care. It makes no sense to me to subsidize and pay health plan payments that Medicare intends, or could have, for safety net hospitals or teaching hospitals or veterans retirees. These HMOs do not provide unpaid services to the poor. They do not educate our Nation's medical students. They do not provide health care to our veterans. Yet the conference report provides payment for such services. It makes no sense, but it is intended to camouflage the fact that private health plans cannot compete with traditional Medicare if they merely receive the amount traditional Medicare spends to provide these services to beneficiaries. So that is not enough. The other thing that is done is that we, in this bill, provide a $10 billion to $12 billion stabilization fund. That stabilization fund essentially is money that the Secretary of Health and Human Services has available to add to what private plans are receiving and further advantage them over the traditional Medicare system if he or she determines that that is necessary in order to keep them providing services to this portion of our population. Of course, the other issue that I think is extremely important is that these private health plans, under the legislation, are fully free to engage in practices that allow them to enroll healthy Medicare beneficiaries and shift the sicker and the more costly or elderly beneficiaries into the Medicare system. They do this by adjusting their benefits. They do this by designing their benefit packages and marketing them to the healthy segments of the society. Some might ask how do they do this. I will give you an example. Some private plans impose a higher cost share for services such as chemotherapy or renal dialysis than traditional Medicare in order to encourage those who have contracted cancer or renal failure to enroll, to leave the private plan and to go back into traditional Medicare. Proponents of the bill say what they are trying to do by getting these private plans involved is to foster competition. Obviously, we all favor competition, but I do not see that it is particularly competitive for us to provide this kind of very major subsidy. When you add together the 109 percent payment to the private plans and the risk selection in which they are permitted to engage, private plans will be paid an estimated 25 percent more than the cost of traditional Medicare for each enrollee, for each beneficiary. This amounts to $1,920 more per enrollee in the year 2006. A third problem is the bill actually does harm. I mentioned what many of my colleagues have already mentioned, and that is the 2.7 million retirees who are expected to lose their prescription drug coverage once we enact this legislation. Also, the Congressional Budget Office analysis says as to low-income beneficiaries, there are 3.4 million low-income beneficiaries who will benefit from this; there are 6.4 million low-income beneficiaries currently enrolled in Medicaid who will be worse off. It is hard for me to see how that adds up to a major benefit for a lot of those people who are expecting a benefit under this legislation. Let me talk a minute about drug costs. What will this bill do for drug costs? When I talk with seniors in my State, the No. 1 problem they cite to me when it comes to prescription drugs is the enormous growth in the cost of those drugs. I have concluded, reluctantly, that not only will this legislation not bring down drug costs but it will actually cause them to go up. Surveys indicate that Medicare beneficiaries cite this as their No. 1 problem. The Congressional Budget Office has concluded the conference report will actually raise the price of drugs by 3.5 percent overall. The legislation that is before us, this 1,100 pages, delivers to hundreds of private drug companies and HMOs an insurance-administered drug benefit that vastly dilutes the purchasing power of Medicare. Rather than Medicare purchasing the drugs in bulk to achieve significant savings, the medication splits Medicare's purchasing power into hundreds of purchasing pools and eliminates the significant leverage that Medicare could have in controlled costs. This bill expressly prohibits Medicare from negotiating for prices. People need to focus on that. Here we are setting up a program where Medicare is going to pay for prescription drugs, and we are prohibiting Medicare from negotiating as to the price it is going to pay. Consumers Union came out with a report last week saying the proposal's modest benefits, coupled with an expected high growth of prescription drug prices, could result in major disappointments for many of these Medicare beneficiaries. Medicare beneficiaries at most prescription drug expenditure levels will actually face higher out-of- pocket costs when they have coverage in 2007--that is one year after the bill is implemented--than they do in 2003 when they have no coverage. That is an incredible finding, in my view. For example, it only provides people with a benefit of around $1,000 for the first $5,000 in prescription drug spending. When you couple that with weak cost containment provisions, the Consumer Union finds that the average out- of-pocket spending for beneficiaries rises to $2,900 in 2000 compared to $2,300 in 2003 for beneficiaries with absolutely no prescription drug coverage. Let me also move to this final chart to talk about the problem of complexity and volatility. I heard some of the majority leader's comments earlier this evening. He indicated that one of the great advantages of this bill is that it would reduce paperwork. I would love to understand that. How we can enact this enormous piece of legislation and see it reduce paperwork is a mystery to me. This is a chart that was put together by the Medicare Rights Center. It tries to set out some depiction of how this is all going to work. I can't begin to explain it to you at this point, but I can tell you that you can study it for a great length of time and still not understand how it is going to work. Most people receiving benefits through Medicare choose traditional Medicare. They like the stability of traditional Medicare. The Washington Post today had a story about the problems beneficiaries who have enrolled in Medicare+Choice have encountered: the changing benefits that health plans offer on an annual basis; the changes in premiums and copayments; the problem of health plans coming in and out of the marketplace. We have had that problem in my State of New Mexico. Health plans come in, advertise, sign up a lot of people, and 6 months or a year later they announce they are not making money and they pull out. They send a letter to everybody and say: Sorry, we decided not to provide your benefits. Those people come to my office and say: What are we going to do? This is a volatility in the system that most people on Medicare do not appreciate. I see that increasing dramatically under this legislation. How in the world we can see less paperwork, how in the world we can see less complexity and less volatility as a result of this bill escapes me. A final point I want to make is the impact on States, expanding on this concept of ``do no harm.'' This legislation has potentially major negative consequences for our States. In the first 3 years of the bill, the Congressional Budget Office estimates that the costs, or the unfunded liability of the bill to the States in their Medicaid programs, will be $1.2 billion. We are, in effect, adding $1.2 billion in costs to the Medicaid Program at a time when States have been begging for relief from the Federal Government due to the growing Medicaid costs that States have experienced because of the slow economy and the growing beneficiary roles. States have had to make rather dramatic cuts in their Medicaid programs because of these changes, and this $1.2 billion in additional costs to them will result in additional cuts in Medicaid. There is a misconception, I believe, about this legislation, and that is, people think that because Medicare is taking over the payment for dual-eligibles--that is low-income individuals who are eligible for Medicaid but also old enough to be eligible for Medicare--since Medicare is going to take over that expense, people think this is going to save the States money. First of all, until the year 2008 under this legislation, States do not receive any benefit from the Federal assumption of drug costs for dual-eligibles or low-income beneficiaries who currently get their prescription drugs from Medicaid. That is 5 years from now before they receive any benefit. States expecting to get savings from this bill, in the words of the National Conference of State Legislatures, will be ``deeply disappointed.'' In addition, this report contains what is called the clawback or the reverse block grant. This is a new concept to me, but it is a fascinating one. Instead of the Federal Government giving a block grant to the States, the Federal Government legislates a requirement on the States to give the Federal Government a block grant. It is through this clawback or reverse block grant the Federal Government demands that States pay the Federal Government for any savings the Federal Government estimates the States might gain from the new Medicare Program. When we take the period between 2004 and 2013, the amount the States will have to pay back to the Federal Government is $88.5 billion. Now, that is a big number, $88.5 billion. The conference report requires States to write checks to the Federal Government in the amount of $5.7 billion in 2006. This goes up to $14.9 billion in 2013. Over that 7- year period, that is a 261 percent increase in the amount the States have to pay the Federal Government. One may ask how they go up that much. It goes up that much because the Federal Government has built into this a 15 percent compounded inflation rate, and that is being imposed on the States. The States have nothing to say about it. If the States want to participate in Medicaid, they will pay that amount back to the Federal Government. State general revenues, tax revenues, will not go up 15 percent annually during those 7 years. So States are rightfully upset by this clawback. They rightfully point out that they are being required to now pay an inflation rate for something they do not control. The clawback, or the reverse block grant, is increasing by 261 percent over 7 years. What this is going to do is to put increased pressure on State budgets which will result in cuts in Medicaid, cuts in education, cuts in transportation. This should not be an acceptable outcome for those of us in the Senate. The bill we sent to the conference from the Senate loaded a $10 billion burden on the States. Now that it has come back to us, it has an $88 billion burden that we are loading on the States as part of this legislation. I would add one other point about this burden. There is a group of 20 States that have a cap that is imposed upon them through Medicaid's disproportionate share hospital program. That cap says they can receive no more than 1 percent of the total Medicaid spending in their State. That compares to 8 percent, which is the national average. The 20 States I am talking about are called low-DSH States. New Mexico is one of those States. I authored legislation to increase that 1 percent to 3 percent, not to get it up to the national average, which would have been 8 percent, but to get it up to 3 percent. That would have allowed the disproportionate share hospitals in my State, instead of receiving $9 million a year, to receive a total of $45 million a year. Unfortunately, the conference report cut the amount my State would receive from $45 million down to $10 million. Current law is $9 million. Under this bill, we would go to $10 million instead of going from $9 million to $45 million. In sharp contrast, Louisiana's share of the Medicaid DSH funding goes from $500 million to $600 million next year. This is an unacceptable disparity, in my view. Louisiana's $100 million increase is more than the $43 million increase that is provided to all of the 20 low-DSH States combined. This precludes States such as mine from protecting their safety net hospitals and dealing with the fact that the uninsured rate in our States has increased by 4 million people over the last 2 years. In conclusion, it is my view that Congress does its worst work under the circumstances we are being presented with tonight and tomorrow. It is late in the session. There is no time for adequate review of the 1,100 pages that have been put on each of our desks. We are being pushed up against a totally artificial deadline. This is not the end of the Congress. It is barely the middle of the Congress. There is no reason this bill has to be passed before we leave for Thanksgiving. We could either come back after Thanksgiving or we could take it up in January. I have a letter from the Democratic Governors Association which says: We urge you to reject any efforts to vote on this legislation before you know its full content and cost impact on your State and the people we both serve. This is to all Members of the Senate from the Democratic Governors Association. They go on to say: Any rush to judgment without the necessary information may have both short- and long-term consequences that could prove to be irrevocably severe. We do not know the consequences of this legislation that we are being urged to pass tomorrow. We owe it to senior citizens in this country to understand what we are doing. We owe it to the taxpayers of the country to buy health care services for seniors without overpaying for those health care services. We owe it to the public to do all we can to reduce health care costs. Unfortunately, we are doing none of these things if we take up this bill and pass it tomorrow. I hope Senators will join me in voting not to send this bill to the President in its present form. I yield the floor.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I yield 4 minutes to the Senator from New York, Mr. Schumer.

Mr. BINGAMAN. Mr. President, I suggest the absence of a quorum and the time be charged equally.

Mr. BINGAMAN. I yield 4 minutes to the Senator from Washington, Ms. Cantwell.

Mr. BINGAMAN. We yield the Senator an additional 30 seconds.

Mr. BINGAMAN. Mr. President, we have come to the point of deciding whether to vote to send this bill to the President for his signature or to effectively set this conference report aside, regroup, and pursue another strategy. Those of us who are about to vote against cloture do so not because we are against having an Energy bill but because we are against having this Energy bill. A view has been stated over the last few days that this particular conference report, even with its problematic provisions and its excess spending, is the only option available if we wish to deal with energy problems in this Congress. It is argued that if we do not pass this bill today, then energy is dead as an issue for this Congress. In my view, that is not a logical conclusion to reach. We are not at the end of this Congress. We are reaching the midpoint in this Congress. There is nothing magical about having to pass energy legislation in odd-numbered years. The Energy Policy Act of 1992, which was the last fairly comprehensive bill passed through this Congress, was put to final passage a few weeks before the Presidential election in that year. There is a broad consensus in the Senate for enacting forward-looking energy legislation. We know this is true. Three and a half months ago, we passed an Energy bill by a margin of 84 to 14. That bill would have made 35 trillion cubic feet of Alaskan natural gas available to the country, which this conference report would not. That bill would have saved twice as much energy as this conference report is projected to save. That bill gave a real boost to renewable energy in the production of electricity. It took a modest first step toward dealing with the reality of global warming. It did not undercut the National Environmental Policy Act. It did not roll back the Clean Air Act. It did not exempt anyone from the Clean Water Act. It was $10 billion lighter on the tax side than this legislation before us. It was another $3 billion lighter on the direct spending portion of the bill. It did not unfairly shift all of the costs of building new electric transmission to consumers who do not get the full benefit of that transmission. It did not contain embarrassing tax giveaways such as a proposal to build a mall for a Hooters restaurant. It was a reasonably good bill. I have served on the Committee on Energy and Natural Resources for 19 years. That is longer than any Member of my party in the Senate. I did not get on that committee to filibuster Energy bills. I went on the committee to pass good energy legislation. The reason so many of us believe we should not proceed to pass this Energy bill is that many of the provisions that caused the earlier bill I referred to to pass with 84 votes 3\1/2\ months ago have been deleted in conference and an array of irrelevant and objectionable provisions have been added. It is almost as if a calculation had been made that as long as we stuck ethanol provisions into the bill and kept provisions out that would open the Arctic National Wildlife Refuge to drilling, then there would be 60 votes for passage of the bill and no one would look too much at the other details and no one would be concerned about the other effects of the legislation. Well, we are about to test that proposition. I hope it turns out to be wrong. If it turns out to be a miscalculation and cloture cannot be invoked on this bill this morning, then our job on energy will not be done in this Congress. In fact, this may be an opportunity to get things back on a better and a more bipartisan track. Both sides have made their share of mistakes in assembling massive Energy bills in this Congress and in the last Congress. Yesterday, Senator Nickles criticized the process Democrats used in the last Congress to move an Energy bill directly to the floor, and many of those criticisms were valid. Throughout this Congress and at each stage, we Democrats have tried to make a constructive contribution to the bill, even in spite of the flawed process that has seemed excessively partisan and closed to us and to the public, but now we are faced with a choice of voting for or against the bill in its totality. Those who oppose cloture, both Democrats and Republicans, choose to do so because in its totality the conference report will not lead us to an energy future that is secure, clean, affordable, and fiscally responsible. If this conference report is rejected, I for one will continue to push for the enactment of a good, comprehensive energy policy. It may be that having tried twice to do so with thousand-page bills and failed, Congress should look at smaller legislation. I hope this conference report is rejected and, once the dust settles, we can find a way to move forward with forward-looking legislation. I yield the floor.

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

Mr. BINGAMAN. I suggest the absence of a quorum and ask that the time be equally divided.

Mr. BINGAMAN. Mr. President, how much time remains on the two sides?

Mr. BINGAMAN. Mr. President, I yield 5 minutes to the Senator from Illinois, Mr. Durbin.

Mr. BINGAMAN. I yield the Senator an additional 30 seconds.

Mr. BINGAMAN. Mr. President, I yield the Senator from Arizona 6 minutes.

Mr. BINGAMAN. I withhold my request.

Mr. BINGAMAN. Mr. President, I yield 4 minutes to the Senator from Vermont.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I see no other Senators seeking recognition so I will speak for a few moments about one aspect of this bill. First, I thank my colleague from California for her statement. She has been extremely involved in these issues from the beginning as a member of the Energy Committee. She has taken a leadership role on many aspects of the legislation in trying to see that the provisions we came up with were good for her State and good for the country. Let me try to talk about one part of the bill. There are 16 titles to the legislation. It does go on for 11 or 12 hundred pages. I want to talk about one of those 16 titles; that is, title XII, which relates to electricity generation and transmission and distribution. That is a very important part of the bill and one that is complicated and difficult for us to understand but one we need to focus on because of the extreme importance it has to our economy. In my view, some of the biggest changes in law that are contained in the bill are located in the electricity title. I would also argue that the biggest retreats we are making from consumer protections are perhaps in this section as well. During the last few years, there have been three very notable publicized developments or events in the electricity industry that have come to our attention as a nation. Not in chronological order, but first, at least in what is on the front page today and what is most immediately in mind when we think about electricity, is the blackout we experienced in the eastern part of the United States and some of the Midwest that shut down nearly a third of our Nation; the problems of how to have a reliable system for transmitting electricity and ensuring that if there is a failure somewhere, it does not cascade to the 18 States that were affected by this blackout, for example. So reliability is a serious issue, and we were made very aware of that. The President's phrase was that this was a wake-up call. I would suggest that this was a wake-up call we have not heeded adequately in the bill. I will go into why I believe that. A second issue, of course, is what happened in California and the west coast, Oregon and Washington in particular, a couple of years ago when they had the market meltdown there and prices spiraled out of control and people saw their utility bills go up very substantially. Unfortunately, those bills have remained very high. It has had a significant impact on the economy of that part of our country. Some of that, of course, was due to manipulation of those markets, ineffective market rules. That is another area of concern that clearly should be addressed in this legislation. The third area of concern that I cite is the financial collapse of many utilities, due in large part to the investments they have made in markets that are not central to the business of producing and selling electricity. That financial collapse has become a serious problem for many in our country as well. This bill, in my opinion, fails to adequately address each of these problems, whether it is a liability or protection of the consumer. In the conference report before us, it blocks implementation of market rules that could prevent market manipulation. There, I am thinking about the provisions in the bill that delay FERC's ability to act not only to issue a standard market design rule, but to issue other orders of general applicability within the scope of that standard market. It also addresses only one form of market manipulation--round-trip trading. I will get into more of a description about that, but there are other types of market manipulation we should be prohibiting in this bill. It fails to do so, and it repeals the Public Utility Holding Company Act, which was passed back in the 1930s, without providing the necessary level of protection for consumers, by strengthening the Federal Energy Regulatory Commission's authority to oversee mergers and acquisitions of other entities. It makes the likelihood of blackouts greater by stalling the Federal Energy Regulatory Commission's attempts to create regional transmission entities through the delay of this standard market design, or any other order of general applicability within the scope of that rule, it discourages the construction of needed transmission, and it discourages regional transmission organization formation by imposing an unwise pricing policy called participant funding. I will try to explain the effect of the language related to participant funding and why that has become such a central part of the concern about the bill. First, let me talk a little about the effects the bill would have on reliability; that is, the blackout problem. The United States-Canada Power System Outage Task Force yesterday released its interim report. The report dealt with the causes of the August 14 blackout both in the United States and Canada. Secretary Abraham had a press conference. I saw him last night on Jim Lehrer's show explaining it again. He has been very aggressive in trying to explain what this report includes. The report contains no recommendations at this point. It is the first of several reports. It is an interim report. It is primarily technical in nature. It tries to establish a timeline for the events that led up to the blackout and then during the blackout. The report tells the story of a day when the power system was not unusually overloaded, but on which a series of events that you could expect to be controllable led to an outage that cascaded through 18 States in the United States and a number of Canadian provinces. It shut down power to tens of millions of customers, paralyzed our major cities--New York, Cleveland, Detroit. Some areas were blacked out for as long as 3 days, and the economic cost of this was enormous, as we would expect it to be. I could go into some detail about what the report found, but I am sure everybody can read that in their morning paper. The report doesn't draw many conclusions or make many recommendations. In my reading of it, it is clear that the lack of communication, the lack of coordination of response, the lack of consistency of rules and equipment were major causes of what occurred. If anything is clear, it is that the major transmission system that we depended upon is a large regional machine that is not bound by political borders but is only bound by physics and by commerce. What happens in one part of the country has far-reaching effects on areas that are very far from the initial occurrence. That fact leads to the inescapable conclusion that the control and management of that transmission system needs to be on a regional basis if it is going to respond to events that happen across these regions. This event cascaded across two countries, 18 States, 4 transmission regions, 4 reliability councils, and it did all of that in 7 minutes. The FERC, which is the Federal agency that is authorized to oversee this enormously complex part of our economy, has been trying to encourage voluntary regional control and management of the transmission system for nearly 6 years now, since the issuance of order No. 888 in 1998. If the Midwest ISO--independent system operator--is the result of the voluntary process that has been going on over this period--and it is--then it is clear that voluntary process has not worked as it should. The Midwest ISO is the best that could be negotiated in the voluntary program for this region. It still has 23 different control areas, inadequate communication, inadequate coordination to respond to a series of events such as those that occurred during a 7-minute period on August 14. The FERC has more recently tried to take some stronger steps to be sure that the regional transmission organizations, such as the Midwest ISO, are up to the task of ensuring the reliability of the system. The standard market and design rule that was proposed by the FERC proposed that we have mandatory regional transmission organizations; that is, that FERC could require utilities to join these regional transmission organizations. This bill stops that effort in its tracks. This bill doesn't have any suggestions as to what should be done to accomplish regional transmission control, except further encouragement of these utilities to do it on a voluntary basis. But it stops the effort that is underway today to require utilities to take these steps. I think the report gives one more strong piece of evidence that the electricity title, as proposed, is unwise and inadequate. The participant funding provisions--let me talk about those because that is an abstruse but important part of this legislation. It is one about which there is substantial controversy. When we wrote the Energy bill in the last Congress, there was substantial controversy about it in the development of this conference report. It is an issue that we need to try to do right. In my view, provisions in the bill related to participant funding will also have a negative impact on reliability. Let me explain how I conclude that. This provision in the bill would require that the Commission, FERC, approve participant funding for the expansion of transmission by a regional transmission organization, or by any utility. Now, what participant funding means is that the participant in the market who wants the transmission constructed, or the expansion of transmission constructed, has to pay the full freight for getting it done. The Commission may not authorize the recovery of costs on a rolled-in basis, or it may not rule that the costs should be shared among those who will benefit from the upgrade in transmission, or the expansion of transmission. Unless the native load ratepayers have stated they require the transmission, they are not to be charged for it. This amendment takes the mantle of consumer protection by supposedly protecting retail ratepayers from bearing the costs of transmission system expansions that are built in order to ship power to a far distant region of the country. In reality, there are very few transmission system expansions that are for the benefit only of one user. In a properly planned system, expansions that take place are ones that support the entire load in the region, including the need to export power from the region where that exists. This provision has three problems. First, it would cause customers to have to pay for costs they did not cause and for benefits they are not receiving. Second, it would deprive local customers of the rights to the lines that are built in their area. Third, it is not always clear or true that only one participant is creating the need for new transmission and benefiting from that transmission. The restriction on allocating costs to Native load ratepayers sounds good at first blush. The effect, however, is to shift the cost to other ratepayers for facilities that the Native load ratepayers in question are able to use and, in many cases, are benefiting from without having to pay. One simple example, to try to bring this home to people, is each of us has a couple of filling stations we go to, to fill up our vehicles. If we were asked, Do you need another filling station in your part of the city, most of us would say: No, we don't; we found a way to do this. But if one is built that is convenient for our use, we will use it; we will benefit from it. The question is, Does everyone hold back and say, I will not suggest the need for expansion of a transmission facility because I am going to be stuck with the whole bill; I will wait until someone else suggests the need and then, of course, I can get the benefit without having to pay my share? This is supposed to be aimed at generators who want to sell into the competitive market. The real victims, in my view, are the consumers who buy electricity from municipal or cooperative utilities or from utilities other than the ones that are required to pay under this participant funding language. The likely effect of this policy is that needed transmission would not get built. If customers who need transmission expansion have to pay for the full cost of the expansion, those who need the transmission expansion may not be able to finance either the purchase or the sale they are contemplating because it becomes prohibitively expensive. The transmission either doesn't get built or, if it does, it is at a cost that gives the incumbent utility a competitive advantage. The second effect is the utilities would be encouraged not to join regional transmission organizations or, if they are already members of regional transmission organizations, to leave those, and they are perfectly free to do so under the legislation. This is not my conclusion. This is the conclusion of many experts who have written to us in opposition to this participant funding language. If the utilities gain this kind of competitive advantage and get their transmission built at no cost to themselves, why should they join a regional transmission organization and talk to others about the need to cooperate and share costs? This proposal on participant funding is anticompetitive and it is antireliability, in my view. If transmission construction is needed to relieve bottlenecks to prevent blackouts, this provision discourages that. Under current policy, which the Federal Energy Regulatory Commission issued in 1995, new transmission is paid for by those who benefit from the transmission. If there is a single entity or single group of ratepayers who benefit, then they are the ones who pay. If the system as a whole benefits, then everyone shares in the cost. Often, there is a combination of the two and there is a sharing of the cost. The single beneficiary pays for part of the cost; the rest is rolled into the rates for all of those who use the system. This provision that is in the bill assumes there is always a single beneficiary rather than there is a benefit to many, as is the case in most circumstances. The provision requires something FERC already has the authority to do. As I said, it can allocate the total cost to one participant. But we should not be legislating the way FERC has to deal with these issues. They should be able to deal with them on a case-by- case basis. The provision prevents them from doing that. We have letters in opposition to this participation funding language from a great many people. I will cite a few: Public service commissions of Michigan, Minnesota, Wisconsin, Indiana, Pennsylvania, and many other States; utilities in California, Indiana, Ohio, Maryland, Pennsylvania, Delaware, West Virginia, New Jersey, Oregon, Utah, Arizona, Colorado, and many other areas of the country. We have many organizations that have come out in opposition to this provision-- from APPA, NRECA, Elcon--Electric Consumers Resource Council, the large industrial customers group including General Motors, Dow Chemical, Air Products, steel companies, aluminum companies--Louisiana, Energy Users Group, the American Chemical Council, the American Forest and Paper Association, American Iron and Steel Institute, Council of Industrial Boiler Owners, Portland Cement Association, Electric Power Supply Association, Consumers for Fair Competition National Grid, American Transmission Company, International Transmission Company, Electric Power Supply Association, many individual municipal and cooperative utilities, and many others. Congress, in my view, should not be meddling in this area. It is too complex. It is too dependent upon the facts of individual cases for us to try to be writing legislation directing how FERC allocates cost. We should not legislate what they do in this area. In my view, that is counterproductive. The bill also contains a delay in the issuance of the standard market design rulemaking which I mentioned before. The delay is until January of 2007. That is a much longer delay than I think is wise. That is over 3 years from now. Clearly, in my view, the Federal Energy Regulatory Commission may well have circumstances to which they need to respond. They may well identify problems for which they need to issue rules of general applicability in that period, and we should not be tying their hands. The bill would prohibit under its current language ``rule or general order of applicability on matters within the scope of the standard market design rule.'' The truth is, the standard market design rule covers everything but the kitchen sink. So if you are saying you cannot issue rules of general applicability on matters that are within the scope of that rule, you are basically saying you are blocked from issuing orders for the next 3 years. What kind of actions could this prevent? It could prevent the Commission from doing its job in many respects. FERC currently has a rule in process on interconnections to the transmission grid. No matter what that rule said, the Federal Energy Regulatory Commission would be prohibited from issuing it. Other matters that are dealt with in the rule that FERC would be prevented from dealing with in a generic manner are such things as market oversight, market mitigation, transmission pricing, scope of the regional transmission organizations, the adequacy of rules for transactions across regional transmission organization boundaries, and, in short, just about anything the Commission does about transmission or markets, because this standard market design rule, which we are blocking the implementation of, touches on all of those items. All of those subjects are within the scope of that rule, and we are legislating a prohibition not only against the rule but against any rule of general applicability within the scope of standard marketing. I also believe some of the orders FERC issued in the western market crisis would be defined as orders of general applicability and would have been prohibited had this language been on the books at the time FERC was trying to deal with that crisis. If another crisis occurs in the next 2 or 3 years, would we not want FERC to bring order to the market to deal with the crisis? Hopefully, we will not wind up legislating a prohibition on their doing that. I offered amendments to try to correct this language on the Senate floor. They failed. I offered another amendment when we had our one meeting of the conference on Monday of this week. That was agreed to by a majority of Senate conferees but was rejected by the House. Then, of course, the Senate conferees receded to that. So I think this is a serious problem that undermines our efforts as a nation to ensure reliability of the system. Let me go on to this issue of the crisis in western markets, and any possible future market crises that we may face. It is surprising to me how soon we can forget. Just over a year ago, maybe 2 years ago now, we were in the middle of a daily diet of newspaper stories and headlines about the excesses of Enron and other power marketers and their manipulation of California and other western markets. Now it seems as though those shocking stories, that public outcry for Government to do something about that, is all gone, and we are on to other matters. We have outlined many times before, and many of my colleagues in their statements have outlined, a parade of horrible schemes, deceitful schemes, that were put in place to defraud utilities and to ultimately defraud consumers. The names are well known to all of us: Get Shorty, DeathStar, Ricochet, Black Widow, wash trades. This conference report prohibits wash trades or roundtrip trades, and that is good. I favor that prohibition. By doing so, the bill acknowledges that the Federal Power Act should protect consumers against fraudulent and deceptive practices, but we only mention one such practice: Roundtrip trading, these wash trades. That is a circumstance where two participants in the market sell to each other the same amount of electricity at the same price in order to make it appear they have more volume of transactions than they really have; there is more going on. This also creates a sales volume for both the sellers. This can be used to pad the reports of stockholders and analysts and make the company look as if it is a better place to invest. This practice should be prohibited. The other practices involve creating artificial congestion on transmission lines so that one can claim to have relieved the congestion in order to collect a congestion rent. There were a number of colorfully named practices that were of this nature. Those clearly should be prohibited as well. Some would argue that we do not need to prohibit those; they are prohibited elsewhere. I do not believe that. When FERC commissioners came before the committee last year, they told us these practices were not prohibited, that there was not much they could do to deal with them. When other Senators seemed not to be concerned about giving this authority, I could not really understand that point of view. Clearly, there can always be other prosecutions for fraud, general fraud and all, but FERC, the agency with responsibility for overseeing this sector of our industry, should have the authority to impose penalties and prohibit these practices. We need to give regulators who are charged with controlling these markets the tools they need to do the job that needs to be done. Senator Cantwell from Washington offered, and the Senate approved by a vote of 57 to 39, an amendment that bans all forms of manipulation. Unfortunately, the conference report does not contain that language now, language which was strongly supported in the Senate. The other problem I mentioned when I started my comments, that I want to say a few more words about, is the problem of the financial meltdowns that we saw as a result of unwise investments by utilities in nonutility ventures and the risk that brings to ratepayers. The conference report repeals the Public Utility Holding Company Act. I have supported repealing the Public Utility Holding Company Act, and I will explain why. But this conference report repeals that act without providing adequate protection for consumers to replace the necessary protections that were in that act. I have always taken the position that we should repeal the Public Utility Holding Company Act because it is no longer a useful device, but at the same time we should add authority to the Federal Energy Regulatory Commission to review mergers and to review dispositions of property by utilities so we can be sure consumers and ratepayers are protected. The conference report purports to contain such strengthening of authority, but I would argue that, in fact, it weakens the authority of FERC to review mergers. There are three problem areas that I see with this language. One is, the jurisdiction over mergers; second, the failure to guard against cross-subsidies, which I think is very important and which was in the bill we passed through the Senate earlier; and third, the language which shifts the burden from the company to the Government if a merger that is occurring is going to be stopped. It automatically occurs if the Government does not act to keep it from occurring under this language, and I think that is bad public policy. FERC's merger authority is essential in this industry, which has been based on a system of local and regional monopolies but which is moving toward depending almost entirely on a competitive wholesale market for electricity generation. The industry is highly concentrated. Consolidation of generation and distribution of transmission can prevent the development of a competitive market. One of the key failures in the bill, as I see it, is that the bill does not make the generation of energy or power a subject that is under the jurisdiction of the Federal Energy Regulatory Commission. Without authority over this generation of power, FERC would have to stand by and watch while this industry or parts of it reconcentrate. A single company could acquire every generator in the United States and the Federal Energy Regulatory Commission would have no authority under this act to deal with that problem. Or a single company could acquire every generator in a particular region and the Federal Energy Regulatory Commission would be unable to deal with it. This is surely incompatible with the idea that we want to develop competitive markets. Even when the transaction is only the sale of a facility, there are serious issues at stake. Many of the utilities that are in the headlines lately are there because they are facing deep financial problems that have come as a result of the utilities spinning off their generation capacity, their powerplants, to affiliates which then are in the unregulated electricity market. Companies such as Xcel and Allegheny are experiencing extreme financial distress because of the activities of their generation and marketing affiliates. A second failure of the proposal is that it does not require FERC to create real protections against cross-subsidy and encumbrance of assets in the new merged company. In the bill that we passed in the Senate, we had protections against cross-subsidy. We said the Federal Energy Regulatory Commission must determine that if someone is going to buy something that is not part of their utility business, they are not going to be cross-subsidizing some kind of nonutility activity. Now, that is an essential protection for ratepayers. Otherwise, the ratepayers find their electricity rates going up because the company is losing money in some unrelated business. Clearly, we should protect consumers against that. The provisions we had in the Senate bill, the one we sent to conference, required that the transaction do no harm either to competition, consumers, or the capacity of regulators to regulate, and it required that the Federal Energy Regulatory Commission determine that there would not be a cross-subsidy to an affiliate company and there would not be an encumbrance of the assets of the utility for the benefit of some affiliate. That is a very important provision which, unfortunately, has been dropped from the bill. In the past, all generation was owned by utility companies. Clearly, that was under the jurisdiction of the Federal Energy Regulatory Commission. If a utility merged with another utility, the merger was under the jurisdiction of the Federal Energy Regulatory Commission under the Federal Power Act. But we are in a new world now, and generation can be separated from the utility company, either sold to a stand-alone generation company or spun off to an affiliate of a holding company that owns the utility, and such sales or spinoffs would not be under their jurisdiction either under the Federal Power Act, since the generation facilities are not under the jurisdiction of FERC, or of course under PUHCA, since we are going to repeal PUHCA, the Public Utility Holding Company Act. So mergers of stand-alone generation companies would not be something FERC could look at. A third key weakness of the proposal is that it requires FERC to act on a merger within a certain timeframe. It says that within 180 days, FERC needs to act. If FERC determines that is not enough time, it can extend that for another 180 days. But if it does not rule against the merger at the end of the second 180 days, then the merger is approved. That is putting the burden on the wrong end, in my view. I favor requiring FERC to issue an order approving the merger, as is current law. This is a major weakening of current law we are being presented with here. These are only some of the problems in the electricity title. I have also expressed concerns about the provisions that give the Commodity Futures Trading Commission a role in monitoring markets that cut the Federal Energy Regulatory Commission and States out of such activities; also, over a provision that raises the bar for the Federal Energy Regulatory Commission review on whether contracts are resulting in rates that are just and reasonable. I know others are going to address those problems in their comments. We have tried, at every opportunity during the long course of this legislation, to correct these problems. We tried to offer amendments that would strengthen the Federal Energy Regulatory Commission's merger authority, amendments to ban all forms of market manipulation, amendments to clarify FERC's authority and to strike participant funding language. We have not succeeded in making those changes. As a consequence, we have a bill that in my view, I regret to conclude but I do conclude, weakens consumer protections and reliability protections with regard to electricity. There are others here seeking the floor, wishing to speak. I yield the floor.

Mr. BINGAMAN

Mr. BINGAMAN. I thank the Chair. Madam President, I will speak for a few minutes about the Energy bill. I know we will have additional opportunities to speak as the day wears on, but I wish to give a few comments before my colleague, Senator Thomas, speaks. We are beginning today the debate on H.R. 6, which is entitled the Energy Policy Act. We have had many hours of debate on this subject in the Senate over the last few years. The debates we have had before in the previous Congress and then this year in this Congress have resulted in our passing an Energy bill with an overwhelming vote. I am very gratified to recount that the Senate did vote with a large majority, a bipartisan majority, in favor of an Energy bill in 2002. In the 107th Congress, we passed an Energy bill by a vote of 88 for the bill and 11 against and 1 not voting. Earlier this year, we passed the same bill we had passed in the previous Congress again with a large bipartisan majority: 84 Members voted for it, 14 against, and 2 did not vote. Of those who opposed the bill, I would say there is fairly good representation from both parties. So this has not been a bill that has gone through the Senate, as previous energy bills, on a partisan basis. I think we can all take some gratification in that. It is important, in my view, that we deal with these issues--the issue of energy supply, the issue of energy sufficiency, concern about the important connections between energy policy and environmental policy, including global warming, to which my colleague, Senator Craig, was just referring. Those are all issues that I think deserve substantial attention as, I have said, we have devoted substantial time to them. It is not easy to bring together all the competing views and points of view that come together in this legislative body and come out with an end product. I congratulated my colleague, Senator Domenici, the other day when we concluded the conference on the fact that he had been able to produce a conference report. I did not congratulate him on the content of that report because I had serious disagreements with it, and I expressed those views. There is a substantial amount involved in producing a conference report, and he deserves credit for doing that. The chairman of our committee said--and the chairman of the conference said--he did not consider this report to be perfect. I could not agree with him more. I recognize that it is not fair to expect perfection in this process, but we could have done much better had the process been a better process. We could have done much better in terms of the product that was produced. I believe we find ourselves now with a bill that does not command the broad support and staying power we should have in a national energy policy. I think the entire country should be brought into a national energy policy and support a comprehensive approach to dealing with our energy problems. Our difficulty, of course, is we now are presented with a bill that we either vote for or against. I have been one who has advocated adopting an Energy bill. I have advocated for essentially the basic premise that President Bush campaigned on when he ran for office. He said that we needed to try to put in place something that was a coherent national energy policy, and I essentially agreed with that idea. I remember former Chairman Bob Galvin of Motorola saying at one point there are certain things that the country should set out to do on purpose. To me, establishing a national energy policy seems to be one of those things that we should set out to do on purpose, because if we allow the issue to go unaddressed and the subject to go unaddressed, we can find ourselves substantially disadvantaged economically and in many other ways by virtue of not having an energy policy. I fear that is where we find ourselves today in many respects. So while I compliment the President for recognizing the importance of an energy policy, I do not think he got us off on the right foot once he became President in trying to develop that comprehensive, coherent energy policy. By that I am referring, of course, to the process that the Vice President was tasked to perform and did perform of trying to come up with a blueprint. That was a closed process. There have been efforts through the courts and otherwise to try to find out precisely who was talking to whom and which groups and individuals were consulted, but clearly that was a closed process. There was no reaching out to Democrats in the Congress. To my knowledge, there was no reaching out to many of the groups that have a vital interest in this issue. That was a mistake. At the time, I said it was a mistake. It prevented policymakers from hearing the broad range of views that would have been offered, I believe, in a constructive manner. In addition, the conduct of that exercise, in that closed process, failed to generate the public trust and confidence that we ought to have behind the energy policy we adopt. So I think the President made a mistake in the way he got us started on developing an energy policy. Unfortunately, that mistake has been repeated in the process that we have seen leading to this final conference report. My colleagues and I on the Democratic side of the aisle in the Senate have voiced our concerns about this many times. The conference was a closed process. In my view, clearly that was not designed to get us a product that would enjoy broad support, and it has not. We did have a meeting. We had, of course, one early meeting where conferees were permitted to come forward and make opening statements. Then some 71 or 72 days later, we had a final meeting, which lasted approximately 3\1/ 2\ hours, where Democratic conferees in the Senate offered 20 substantive amendments on a wide variety of topics. None of those amendments can be found in the conference report today. That leads me to conclude the exercise was cosmetic and that there was no real intent, as we went into that final conference meeting, of seriously considering any of those Democratic amendments since none of them were agreed to. In fact, one that was agreed to by the Chair when it was offered was, of course, rejected by the House, as were all the others. Of the 4 that slipped through the process--16 of the 20 that we offered were rejected out of hand. Four of them did get through the process, but they were all rejected on a party-line basis by the House Republicans as the first order of business when they convened later that same evening. We went to conference on this bill expecting we would be able to participate in a meaningful way. That was not permitted. I regret that it has gotten to the point we are at now. The common ground that was reflected in the Senate-passed bill was based on a few basic principles, and I will allude to those. First, perhaps most importantly, was the basic agreement that we needed to have an energy policy that struck a balance between increasing energy supplies and encouraging additional energy efficiency or conservation. I think all of us can agree, at least at some level, of a conceptualization that both have to be done in order to deal with energy problems. Supplies have to be increased. Usage has to be decreased. That is the only way to begin to make up the enormous deficit which we are currently operating under with regard to energy, where we are importing a tremendous amount of energy. The reality is that our country does need new policies in both areas, and that was what we set out to do. On the energy supply side, one of the most important national needs is to meet the need for natural gas. Natural gas is the fuel of choice for most electric generation that is now being planned. We know there have been plans to construct substantial additional electric generation that uses natural gas. Natural gas will play an important role in any new distributed generation that is planned in the future. It is favored by alternative fuel vehicle programs in both the Government and in the private sector. It is the most likely feedstock to produce hydrogen. The President has indicated his strong support for moving to a hydrogen-based economy. The point which I think often gets lost is that the most logical and ready source for that hydrogen is natural gas. So it is not possible to just say, OK, let's not use oil and gas, let's use hydrogen. Natural gas has to be used, or at least that is what most people think is the most economic course to follow. Apart from its energy uses, of course, natural gas is also a critical feedstock for the petrochemical industry and the fertilizer industry. Over the long haul, natural gas consumption in this country is outstripping the amounts we are able to produce in the lower 48 States. We as a nation are in the early stages of developing a substantial dependence on foreign sources of natural gas. Just as we find ourselves today dependent upon foreign sources of oil, in the near future, the next decade or so, we are going to find ourselves substantially dependent upon foreign sources of natural gas. That is not a good result, and it is not one that we should sit by and idly allow to occur. We all know, and the Presiding Officer today knows better than any of us, that there are at least 35 trillion cubic feet of natural gas that are stranded on the northern slope of Alaska, Prudhoe Bay. That gas has been produced and is being produced every day, along with the oil that we now produce at that location. The gas is currently being pumped right back into the ground because there is no way to transport it to the lower 48 where it is needed. As we see the price of natural gas go up in the lower 48, as we may well this winter--we do not know--we need to remember there is a substantial supply of natural gas that we are not accessing. We need to provide financial incentives to the private sector to help in the construction of a pipeline to bring that gas to the lower 48. Such a project would not only help with our national energy needs, national energy security, it would also, of course, be a great boon to construction in this country, and to the domestic steel industry. We hear a lot of talk about how this bill before us is now a jobs bill. To the extent that one cannot argue the virtues of it from an energy perspective, they have to talk about it as a jobs bill. There are jobs that will be created from this bill. There are a great many more jobs that would be created if we provided an adequate incentive for the construction of the pipeline in Alaska. On this topic, the conference report does not measure up. It does not do what we did in the bills that we passed through the Senate, in the bills that we passed through the Senate both last year and this year. It does contain regulatory streamlining procedures for the pipeline that former Senator Murkowski and I worked hard on in the previous Congress. That is a critical part of the problem. But in order to get the pipeline constructed, we also need to have fiscal incentives. The Senate voted for those. The administration opposed them. Once Chairman Domenici announced publicly that they would not be part of the conference report, all of us who were officially conferees received a letter from the CEO of the gas company that has been most active in promoting going forward with the design and construction of such a pipeline, and that corporate executive stated that based on his understanding of the conference report, his company could not proceed with the project in face of the extraordinary financial risk that it would have to bear if gas prices were to drop below what the Energy Information Administration agrees is the likely level. So the lack of a risk mitigation mechanism, that probably would never have cost the taxpayers a dime, and even if it had cost taxpayers, there was a provision to ensure that those funds would be repaid when the price went back up again--but because of the lack of that risk mitigation mechanism, the likelihood is that our Nation will forego the possibility of using that Alaskan natural gas for future supply needs. We will, instead, depend on imports of liquefied natural gas. We will bring our natural gas from places like Nigeria and Trinidad. Those are places, of course--some of those places, at least--that have their own problems with regard to political stability and the security of that supply. Building the necessary transportation system for LNG, liquefied natural gas, will create jobs for shipyard workers in Korea, but we will not have the jobs for pipeline construction for Americans on this continent. I believe this is an unfortunate policy mistake that our country will come to regret. I am disappointed we were not able to maintain in the bill the financial incentives that we put in the bill when the Senate acted previously, both in the last Congress and this Congress. Along with providing for more robust domestic supplies of natural gas, we need to look for ways to diversify our energy generation away from such reliance, such strong reliance on gas. One important arena in which we can do this is in electricity generation. The bill the Senate passed earlier this year focuses this diversification strongly on new technology, including ultraclean ways of burning coal. Ultraclean coal is the most sustainable way over the long term to ensure that coal maintains its key position in our national energy mix. This is because concerns about the levels of pollution emitted from coal-fired plants are only increasing. It increases, of course, as the concern about the contribution of coal- fired generation to global warming increases. This conference report unfortunately takes a step backwards from what we passed through the Senate in its commitment to ultraclean coal. The percentage of funding dedicated to these purposes is cut by 20 percent. A new competing program of direct grants to companies to pay for half of the cost of current technology pollution equipment, and current technology coal-fired generation is also put in place. In my view, we have limited Federal funds. Focusing those Government subsidies to buy today's technology instead of investing to create tomorrow's coal technology, risks coal's ultimate ability to maintain its position in our energy mix. I think that is unfortunate and a policy mistake as well. Another key part of the strategy of diversifying away from natural gas would be to tap into opportunities for distributed generation, such as combined heat and power at industrial facilities. Here again, the conference report falls short as it does not address the barriers that have been erected to uniform interconnection of distributed generation to the grid. It is not enough to have the technology. We need to rid ourselves of the redtape that is keeping that technology from being used. Again, I believe our previous bill facilitated that. I don't believe this bill does. Along with these steps, we also need to make a greater push to introduce renewable energy technologies for electricity generation. Some of these renewable technologies are already cost competitive. Wind is the prime example. But in order to see widespread use of these technologies, both financial and regulatory incentives should be put in place. That means both a meaningful production tax credit--and there is a meaningful production tax credit in this conference report. I commend the drafters for that. We would need that, but we also need a flexible renewable portfolio standard for electric utilities. For those who have not been studying this area, a renewable portfolio standard essentially means a requirement on utilities to produce a certain portion--in the case of our bill, 10 percent--of the power they produce or that they sell, 10 percent of that power should come from renewable sources. That is what our Senate bill provided. That provision, of course, has been deleted from the bill that is now before us. I think that, again, is a mistake in policy. The lack of an effective renewable portfolio standard is a major missed opportunity for our country. There are those who argue that we should leave this to the free market. But the reality is that a majority in the Senate, a majority of Senate conferees have disagreed with that. In spite of that, we have deferred to the House, and the House says they don't like it. We say fine; if you don't like it, we will drop it. The conference report is pretty much status quo on the future of renewables and the future role of renewables in our energy mix. Tax credits are extended for a few more years and slightly broadened, but renewables do not get anywhere near the attention lavished on them in this legislation that the coal industry gets or that the nuclear power industry gets. Coal and nuclear power have problems with regard to social acceptance. So in the absence of a stronger push forward on increasing renewables I think the conference report is basically making a choice in favor of the existing trends toward an overreliance on natural gas for future electric generation. That choice leaves our citizens' future natural gas and electricity prices that are more volatile than they should be, resulting in more frequent price spikes than we would like to see. People will come back and say: Why did you in the Congress not try to deal with this problem and anticipate this problem and head it off in a more meaningful way? Renewable energy technologies can help with another energy supply issue that we face and that is of transportation fuels. The conference report mandates a phase-in, an introduction of up to 5 billion gallons of ethanol in our gasoline supply by 2012. This has been coupled in the conference report with the issue that has already been discussed fairly broadly here in the Senate this morning, and that is the issue of how to treat the gasoline additive MTBE, methyl tertiary-butyl ether. One provision in the ethanol title purports to ban MTBE by the year 2014, but when you look at the rest of the language, it is clear the ban is full of loopholes. For one thing, each State Governor can opt his or her State out of that ban, if the Governor determines. This language is sufficiently vague that it appears that States can opt out, even after the purported national ban goes into effect. I do not know if that was intended, but that certainly is the way it appears. One other problem with the language is that the President is given extraordinary powers to make the statutory ban null and void by a stroke of the pen in the year 2014 before it takes effect. With these kinds of loopholes, it is not likely MTBE will actually be banned nationwide in 2014. In addition, the conference report provides product liability protection for MTBE and does so retroactively as to September 5 for any lawsuit filed after that date. The Senator from New Hampshire spoke about his objection to this as it affects his State. I can certainly understand that objection. I think it is one other provision that undermines the broad bipartisan support we really ought to be able to enjoy for this bill. Even with the greater use of renewable fuels in cars, we still will be very dependent on oil for the transportation sector. It is in our national interest to support domestic production of oil. But many of us know our domestic production of oil is not adequate. We are more and more dependent on foreign sources of oil, and most of that growing dependence on foreign sources of oil is occurring in the transportation sector as we are using more and more gasoline for larger and larger cars every year. I notice, as everyone else does, all of the advertisements for Hummers. I am sure that is a great vehicle, but the reality is that when you have such a focus on larger and larger vehicles and less and less efficient vehicles, as we have and have had for some time in this country, it is clear that our dependence on foreign oil will grow, as it has been growing. I understand that the answer to our doing nothing there--we did not do a great deal in the Senate bill on this subject, and we did much less than I wanted to do. But we did adopt an amendment by the Senator from Louisiana, Ms. Landrieu, that set a goal for reducing the amount of oil consumed in our transportation sector, and we gave broad discretion to the President and the Secretary of Transportation as to how they achieve that goal. That provision, modest as it was, has been deleted from this bill. That, in my view, was an unfortunate deletion and, again, a wrong direction for us to be going in our national energy policy. I have various other points I wish to make. I know my colleagues are here ready to speak. I will have opportunities to speak later and conclude my remarks on a whole range of issues since this is such a comprehensive subject. It is a comprehensive set of provisions with which we are being presented. At this time, in deference to my friend, Senator Thomas, let me yield the floor so he can speak. Of course, the Senator from Illinois is also here ready to speak. I will defer to him as well.

Mr. BINGAMAN. Fifteen minutes for each of us, and a half hour for the Senator from Illinois. I think my statement will probably be closer to a half hour as well.

Mr. BINGAMAN. Whatever period of time the Senator would want.