John Cornyn

Mr. CORNYN

Mr. CORNYN. I thank the chairman. I am pleased that we share a common understanding. If the chairman would yield for one more question about the Family Movie Act?

Mr. CORNYN. This bill also differs from the House-passed version because it adds two ``savings clauses.'' As I understand it, the ``copyright'' savings clause makes clear that there should be no ``spillover effect'' from the passage of this law: that is, nothing shall be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. The second, relating to trademark, clarifies that no inference can be drawn that a person or company who fails to qualify for the exemption from trademark infringement found in this provision is therefore liable for trademark infringement. Is that the chairman's understanding as well?

Mr. CORNYN

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 President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. CORNYN. Mr. President, I also ask unanimous consent that I be allowed to speak in morning business for as much time as I may consume.

Mr. CORNYN

Mr. CORNYN. Mr. President, recently there has been a lot of discussion about, not just the role of the judiciary in our democracy, but the process by which judges are selected. To me, this all boils down to something that Daniel Webster once said when he opined that ``justice is the greatest desire of man on Earth.'' It is, in fact, the judges, the ones who wear the black robe, the men or women who serve on local or State or Federal benches who are the ones with whom we identify that common yearning for justice. Unfortunately, here in the Senate over the last couple of years, we have gone through an experience that not only reeks of injustice but also of unfairness and, indeed, rises to the level of unconstitutionality when it comes to the filibuster used against President Bush's judicial nominees. Never, before these last 2 years, has a nominee for a Federal court, whether it is the Federal district court or circuit court or the United States Supreme Court, been blocked by the use of a filibuster when there was a bipartisan majority of the Senate who stood ready to confirm that judge--never before the current Congress, dating back now 2 years. We all know the judiciary plays a critical role in our form of government. As high school students, or perhaps even earlier, we learn that our three branches of government play important but distinct roles in our constitutional democracy. It is the judiciary, which at one time in our Nation's history has been called the least dangerous branch, that has produced some of the most dangerous decisions, at least so far as it concerns our right to self-government. What I mean by that is when we see courts strike down the Pledge of Allegiance because schoolchildren cannot say the words ``under God'' when they pledge allegiance to the flag; when we see county clerks, indeed, when we see judges themselves authorize the issuance of marriage licenses to same-sex couples on TV and across our country; and when we see courts, on the basis of lawsuits that have been filed, tell military bases that they cannot grant access to their facilities to the Boy Scouts of America, we know these are not a product of a vote of the people. In each of those instances it is the act or the dictate of a judge, a judge that I submit has lost any tether, any sort of anchor with the fundamental premises upon which the power of a judge is granted. We want to make sure in this country, I believe, whether we are Democrats, Republicans or independents, that our judges are not politicized. In other words, we want to make sure when we walk into a courtroom when our case is decided that the judges have not already made up their minds before hearing what the facts are. We want to make sure that that judge does not have some sort of political or personal agenda which makes it impossible for them to be fair. But what we have seen over the last couple of years is a political situation of the judicial selection process where good men and women who are highly qualified to serve as Federal judges at the Federal district court level and at the circuit court level have been not only obstructed by this unconstitutional filibuster process, which has never before been used in America history--what we have seen is also character assassination. We have seen individuals who spent a lifetime creating a reputation and developing a career as a judge totally smeared by various interest groups whose desire it is to politicize not only the judicial selection process but the decisionmaking process by judges. And that is wrong. We know, in addition to the other important judicial vacancies that exist around this country which we have been unable to fill because of the filibuster, that in all likelihood during President Bush's second term of office he will have the opportunity to nominate one or more nominees to the U.S. Supreme Court. I am sorry to say these nominees will undoubtedly be savaged by some of these same interest groups who are bound and determined to politicize not only the act of judging-- that quest for justice--but in fact the selection process itself. Unfortunately, these kinds of venomous politics are something we have come too often to expect when it comes to selecting these important members of the judiciary. I firmly believe we are a big and diverse country. We have people who come from different places across the planet, who pronounce their name in different ways, who have different traditions, creeds, beliefs. And the great thing about this country is we can all live here in this one place and we can argue for what we strongly believe in. We can defend those views when they are attacked. But in the end, we settle those disputes--maybe not change someone's mind but we settle the dispute at least for a while by having an election. On November 2 of this year, 60 million people not only chose to reelect President George W. Bush, but I believe in part cast their votes for the kind of judicial nominees this President has nominated in the past and which he can be expected to nominate in the future. Men and women are drawn to service in the judiciary because they believe in that quest for justice, and they want to play an important role in making sure that desire for justice, that quest for justice, is satisfied, at least as much as is humanly possible, in courtrooms all across this country. But we know--at least in the past, based on sad experience--there are those who will not be satisfied with an election; that people will not put their grievances and their anger behind them but will continue to pursue these policies of destruction and character assassination when it comes to the President's judicial nominees. Unfortunately, these angry individuals have not come to accept what the vast majority of Americans have agreed is the way we should work; that is, we do our best, we fight our best fight, we get our voters out, and then we have an election and we resolve those differences at the election. We have seen time and time again how these tactics have been used shamelessly to smear some of the President's judicial nominees. It is only logical to expect some of these same tactics, notwithstanding what I have said, will be used again. What we have seen in this Senate--and I believe the American people cast a vote, at least in part, on November 2--is, as I have said, unconstitutional filibusters. And what I believe the American people cast a vote on on November 2, particularly when it came to the Senate minority leader race, the race in South Dakota, was a repudiation of obstructionism and the unconstitutional use of the filibuster to block the President's nominees who, if allowed the simple dignity of an up- or-down vote, would have been confirmed as I speak. The Constitution makes clear what the role of the Senate is. That role is to provide advice and consent. Yes. The Judiciary Committee, on which I am honored to serve, has a responsibility to review the credentials and background and experience, the temperament of these nominees to make sure they understand they are not just another branch of the legislature which is at liberty to enact through judicial edict their personal or political or any other agenda. Our job is to make sure they respect the separation of powers which makes the judiciary a distinct and unique branch which is supposed to interpret the law, not make the law. Unfortunately, we have seen an obstinate minority in this body that has denied this Congress the ability to provide that advice and consent; that is, trying to elevate the de facto requirement under the Constitution for confirmation to 60 votes by claiming that the Senate rule which requires 60 votes to cut off debate trumped the Constitution. You might ask, How is that possible? The Constitution is the fundamental law of the United States of America, and all other laws passed, including those of Congress, are inferior to that law. If the act of Congress is inferior to that law and when it conflicts, it must fall, surely a Senate rule that purports to require a supermajority vote of the Senate to confirm judges must fall when there is conflict with the U.S. Constitution. The Constitution provides that in specific but limited instances a supermajority vote is required for passage, notably the ratification of treaties and notably the amendment of the Constitution itself. But nowhere in the Constitution is it provided that to confirm a judge, more than a 51-vote majority is required. That is why over these last 2 years we have heard Members on this side of the aisle time and time again come to the Senate and say not only is this filibuster unfair, but, indeed, blocking an up-or-down vote by a bipartisan majority of this body is, in fact, in violation of the fundamental law of our land. In order to be suited by virtue of temperament to serve in elected office, you have to be an optimist by nature, and I am. It is my sincere hope, it is my sincere request and entreaty to our colleagues on the other side of the aisle, that these tactics stop. They must stop not only for the good of the Senate but out of respect to the President who received almost 60 million votes on November 2 and out of respect for the Constitution itself. What has happened these last 2 years is wrong, it is unfair, and, indeed, it is unconstitutional. Should President Bush have the opportunity to nominate one or more judges to vacancies on the U.S. Supreme Court, it is my sincere hope we will have learned something from the mistakes of the past. We will have also learned there is a political penalty to be paid for obstructing judges, for treating them unfairly and in an unconstitutional fashion. As an astute observer not only of the human condition but also of politics in general, I am confident that all of my colleagues in the Senate, all 100, paid close attention to the verdict of the American people on November 2 when it came to a referendum on whether these unconstitutional, unfair obstructionist tactics should continue or end. It is my hope we all got the same message and that, indeed, we will treat the President's nominees fairly, that we will do what the Constitution requires, that we ask the questions, make sure they are qualified by virtue of experience, education, and temperament, that they understand what the role of the judge is, and that they are not just a legislator wearing a black robe and with lifetime tenure. I believe on November 2 the American people rejected the tactics of obstructionism and demonization of the President's nominees. Frankly, I worry that the good men and women who have been nominated by the President to serve in these important positions, after those behind them see how they have been treated, or I should say mistreated, how long can we expect other good men and women, when called by the President, will answer the call only to know they will be smeared, strung out before the world and, indeed, then, obstructed by an unconstitutional process? It is my hope we will have learned something over these last 2 years and to repudiate these tactics. I will say something to my constituents and the people who may be listening who have contacted my office in very sincere concern for what they have seen played out on the Senate floor and in the judicial confirmation process. I say to all of them, I appreciate your passion. I appreciate your concern. I appreciate your interest in the instruments of the Government that ultimately the people of this country control. We are going to need the involvement, the attention, the passion of all of the people and, indeed, we are going to need to appeal to our better angels in the Senate and in the Senate Judiciary Committee when it comes to the next nominees for the U.S. Supreme Court. We all remember, whether it is the confirmation process by which Judge Bork was blocked, by which Clarence Thomas was ultimately confirmed--after going through a process that no one should have to go through--my hope is we will have learned that is not the way the Senate should conduct itself and that we will resolve among ourselves and resolve among the American people and to the people we represent that we will treat the President's judicial nominees fairly, that we will treat them with dignity, and that we will provide the up-or-down vote the U.S. Constitution demands when it comes to the confirmation of the President's judicial nominees. I am not suggesting for a minute that anyone violate their conscience. Indeed, any Senator with a sincere belief that an individual judge should not be confirmed should come to the Senate, as no doubt they will, and explain to their colleagues why they feel so strongly, why they conscientiously object to this nominee and invoke their conscience. Every Senator should do that, and I trust they will. But no one, no Senator has the right, no group of Senators has the right, no minority has the right to tyrannize the majority of the Senate when we stand ready in a bipartisan fashion to cast a vote, up or down, for a judicial nominee. I sincerely hope we will not have only learned from the mistakes of the past when it comes to obstruction of the President's judicial nominees, but we will conduct ourselves with the kind of dignity the American people have come to expect from Senators and that we will conduct ourselves uprightly, with fairness and dignity, and treat all we come in contact exactly the same way. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I have sat here for the last 2 hours 15 minutes and listened to a number of speeches by my colleagues on the other side of the aisle. I can only conclude that they are invoking the memory of Mark Twain, who said: ``I am not one of those who when expressing opinions confines myself to the facts.'' What I mean is I find it curious that speaker after speaker has criticized the Bush administration, and indeed, the majority in this Congress, for our progrowth economic policies when, in fact, the results of those policies worked to the betterment of the American people and create hope and opportunity and not despair and hand wringing. The only thing I believe contributes to despair and hand wringing and increased anxiety among the American people, and indeed the voters who are going to vote on November 2, are speeches made by supporters of the Democratic nominee on this floor and elsewhere, talking gloom and doom and despair as if America was no longer the last best hope on the planet. First, I wish to talk about the bill that was passed a couple of hours ago, the FSC/ETI bill, more appropriately named the JOBS bill. I was proud to be 1 of the 69 Senators who voted in support of that bill, for a number of reasons. First, we were able to eliminate a 12-percent penalty against exported goods made by American companies exported to the European Union. That is something that was long overdue. We really would not have had to wait this long to do that but for some obstruction on the other side of the aisle. The second reason I am proud to have voted for this bill is because it ends the discrimination against those States such as mine, Texas, which have no income tax. In Texas, we tend to adhere to the idea that government should not be a burden any bigger than absolutely necessary upon the people who earn the money, so they can save it, they can invest it, and small businesses can create jobs. So we do not have an income tax. We have a sales tax. But for many years now, Federal laws discriminated against States such as Texas and I believe Washington--I see the Senator from Washington on the floor. I believe her State was also affected by this change. Now taxpayers in Texas can deduct the sales tax they pay from their Federal income tax. I am very pleased that 69 Members of the Senate today saw fit to end that unjustified discrimination. The reduction in the corporate tax rate for manufacturers that was accomplished by the passage of this bill earlier today has effectively reduced the corporate tax rate for these manufacturers by 3 percent. In other words, the corporate tax rate in the United States, which is 35 percent across the board, has now been reduced 3 percent for this class of taxpayers--manufacturers. This will, no doubt, provide an opportunity for manufacturing concerns to increase their competitiveness in a global economy where they have to compete with much lower wage-paying countries, such as China and elsewhere. It is curious, though, to me, that America still has one of the highest corporate tax rates in the world. Indeed, the University of Michigan, in a study from the Office of Tax Policy Research, says that in 2002, the last year for which figures were ready available, the average corporate tax rate for countries all across the world was 29 percent across the board--29 percent. America's is 35 percent, except for now when this bill becomes law, it will be reduced for a certain class of taxpayers in the manufacturing business. This chart shows that, for example, the Slovak Republic has a 25- percent corporate tax rate. Indeed, this past year I was privileged to travel from Bratislava, with other Members of the Senate, to represent the United States at a meeting of the Presidents of the new members of NATO, including the Slovak Republic. We learned from the Ambassador that, indeed because of the low corporate tax rates, that small country had been able to attract three major car manufacturers to the country, creating thousands of jobs, primarily because of the low corporate tax rate and because of the population that is eager and willing to work. The fact is, our policies do impact our competitiveness in the global economy, and have a direct impact on the quality of life and the prosperity of the American people, something I am afraid is too often ignored. I am so glad to see some of my colleagues from the other side of the aisle who rail against reduction in taxes for individual taxpayers agreed--all of us combined--by a vote of 69 to 17 that lower taxes promote economic growth and promote greater job creation. That is exactly why I believe we were wise to pass this bill in the Senate today. Unfortunately, what we hear too often when talking about issues such as economics and job creation is a lot of cynicism. I heard someone on the floor today talking about elite corporate interests will benefit when tax rates are lowered, or I think there was a reference made by the Democratic nominee for President about Benedict Arnold corporations are traitors, in effect, of America by taking jobs out of America into other countries. I want to talk about that more in a minute. But what these amount to is a philosophy of claim to love the worker but hate the employer. In other words, speaker after speaker today claimed that the policies of this administration were hurtful to the worker at the same time they claimed that the only ones who benefitted were the big corporations. The fact is you cannot claim to love the worker and hate the employer who provides the worker their job. That is why I believe we need more progrowth policies. I think we need to look at our tax policies across the board. We need to look at our civil justice system which imposes a tort tax on every consumer in this country and which stymies innovation and business growth and thus job growth. We need to look at our regulatory policies which make it difficult for America to compete. And, yes, we need to look at policies which will provide greater opportunities for innovation not by the Federal Government but by the men and women, the risk takers, the investors and people who create jobs all across this great land--indeed, all across the world. What I have heard earlier today with regard to condemnation of elite corporate interests and the like also reminds me of some of the debate we heard earlier about outsourcing. It is my view that a lot of the debate on outsourcing is largely based on the same sort of fearmongering and anxiety and hammering we have heard generally today in attacks against this administration and its economic policies, not on the facts. The facts are that markets are rational. In other words, if a company can open a business here in the United States or increase the size of its business, but because of a higher tax burden and more litigation risk environment, more regulation and the like, they are going to take a look at places such as India, China, and Mexico, and other places that do not have a lot of those same regulatory and legal burdens and tax burdens. One reason why America continues to prosper is because, of course, we have what many places in the world do not have; that is, stability in the rule of law that promotes security of investment. So we can continue to attract foreign dollars in this country. For example, the Congressional Research Service has produced a document entitled ``Outsourcing and Insourcing Jobs in the United States Economy, An Overview of Evidence Based on Foreign Investment Data.'' This research document reveals that by 2003 U.S. firms accumulated $1.5 trillion worth of direct investment abroad compared to the $1.4 trillion foreign investors spent to require or establish businesses in the United States. For 2003 alone, foreign direct investment in the United States was about $82 billion, whereas U.S. direct investment abroad rose to about $155 billion in 2003. As I said, markets tend to be rational. People, unlike the Federal Government, have to look at the bottom line and make sure that they don't operate in the red and thus go bankrupt and risk going out of existence. They have to be rational. They cannot make the kinds of emotional decisions that are made too often in the political realm. But it is no wonder because of the regulatory environment, the tax, the high taxes in this country, because of the legal system which unfortunately rewards a few at the expense of the many, that we are finding more jobs going overseas. And there is something we can do about it. The fact is we in this Congress are well situated to enact progrowth policies which will decrease the likelihood that companies will go overseas or outsource jobs to other countries and other locations around the globe. But we are not doing the things we need to do to promote growth right here at home and ensure greater employment opportunities for the American people. For example, we know that one of the biggest drags on the economy and on job creation is expensive oil imports. We know a barrel of oil is currently selling on the spot market in excess of $50 a barrel. We had an opportunity--and unfortunately we didn't avail ourselves of that opportunity--to pass an energy bill which I think would have created more domestic production here in America, and we would have had a greater supply, and thus bring the price down. But we didn't do it. We have high natural gas costs because we simply have put too much of the domestic supply out of our reach by moratoria and other policies which said we may have the gas but we are simply not going to explore and drill for it. It should be no surprise that the cost of natural gas is at historic highs. It is no surprise that gasoline is so expensive when regulations have resulted in no new refineries being created in the United States since about the early 1970s. The fact is most of the refiners are operating at maximum capacity. One reason for oil and gas being expensive is because emerging economies such as China and India and others are consuming more and more energy and thus driving up the price. We had a chance to do something about that by passing an energy bill this year, and we simply have been unable to do that because of objections on the other side of the aisle. We also know one reason companies don't come to America or don't expand jobs here in America relative to other countries is because of our legal system. Unfortunately, we have a mentality in this country that says frivolous lawsuits are simply the order of the day. We know that the costs of those lawsuits are passed on ultimately to the consumers who pay in effect a tort tax. We also know that it affects access to health care which is another cost that businesses incur when they do business in the United States as opposed to other countries. We had a chance to pass medical liability reform to improve access to OB-GYN doctors, emergency room doctors, and the like. We had a chance to reduce the paperwork that adds about a quarter of the cost to the health care expenses incurred by Americans and by American businesses when they provide health care coverage to their employees. Unfortunately, these policies resulted in a large number of people simply going without health insurance because of the cost. If no one believes what I have said to this point about low taxes being progrowth and being in the best interests of the American people, and people who want to work, I think all we would have to do is look at what happened after we passed the historic tax relief and growth package in 2003. We know in June 2003 unemployment rates in this country were at 6.3 percent. Today, they are 5.4 percent, a .9- percentage point difference lower. We remember hearing day after day discussions about the jobless recovery. The fact is, since August 2003, as a direct result of the progrowth economic policies of this administration and the leadership of this Congress, according to the payroll survey, 1.9 million new jobs have been created in the United States. I heard one of the distinguished Senators refer earlier to ``we'' produced new jobs. I am sure they did not mean to suggest that the Federal Government produced the jobs because we know the Federal Government does not produce jobs. More often than not, it is the burdens imposed by the Government on employers that kill new jobs. The fact is, if you look at the household survey--of course, we will get into the difference between the payroll survey and the household survey--more and more Americans are no longer working in a traditional employer-employee relationship. Indeed, they are pursuing their own dream by starting their own business. According to the household survey, 2.2 million new jobs have been produced since August of 2003. We are seeing a restructuring of the economy not only in the United States but globally. Obviously, we know there is going to be some human pain associated with that. None of us likes, regardless of whether we are Republicans or Democrats or Independent, when anyone wants to work and they cannot find a job. Our goal should be to keep our eye on opportunities for everyone to live up to their potential, to get a job, to provide for their family. Unfortunately, the antigrowth policies pursued by many of our friends on the other side of the aisle in terms of bigger government, greater taxation, more regulation, runaway litigation, have exactly the opposite effect. They limit opportunity; they limit jobs; they limit investment. I have heard the President criticized time and time again today and elsewhere for his economic policies. But I remind my colleagues when this President came into office, we were in a recession. Not only that, a short time after he came into office, we had the terrible events of September 11. Osama bin Laden himself said his goal was to establish about $1 trillion of cost to the American economy. Indeed, we know that much of the economy suffered a body blow as a result of that tragedy over and above the human loss of life that we suffered on that terrible day. Then we also know that the birds came home to roost, so to speak, on corporate scandals, some of which are still being prosecuted, that caused a tremendous loss of public confidence in our markets and in businesses, resulting again in further economic distress. The truth is, during this administration the American economy and the American people have had many challenges. One of those challenges has been the attacks not only on us as human beings but on our economy and on the economy's ability to generate new jobs. Despite all the hand wringing, despite the naysaying, despite those who would claim there is no hope unless we get a new President on November 2, the fact is there is tremendous reason for hope and, indeed, tremendous reason to believe that it is the policies of this administration and the leadership in this body as well as the House of Representatives that have caused, have created the conditions whereby the risk takers, the investors, those who create jobs, do so, and they have done so at remarkable levels. I used to be very skeptical of the speeches I have heard of the Senator from North Carolina, the Democratic Party's nominee for Vice President, who talks about two Americas. Indeed, sometimes in listening to the debate in the Senate today and elsewhere, maybe he is right--but not quite in the way he says. There is one America that is hopeful, that seeks opportunity and believes that everyone, no matter who they are, where they come from, or how they pronounce their last name, is entitled to pursue their dream, the American dream. On the other side, there must be another point of view, another America, so to speak, for those who believe they should pursue their political objectives by fearmongering, by hand wringing, and increasing the anxiety of the American people when it comes to their job security by making fallacious claims about how good the economy really is and the policies that have produced tremendous growth in the economy and tremendous opportunity for people who have previously been out of work. Ultimately, we have to do two things: Continue to do what we have done with regard to people who are out of work and provide temporary benefits until they can get back on their feet and get back in the workforce--not a permanent subsidy for not working but provide help for those who are truly looking for work, and then we need to continue to provide educational opportunity to every American. We need to change our frame of mine when we think about education. When I was growing up, I somehow got this idea that I would go to school and graduate from high school and then I would go to college and I would ``finish'' my education. The truth is, that is not what happened. The truth is, it cannot happen in today's economy and in today's competitive work environment. The truth is, we need to change our frame of mind and commit ourselves to life-long learning. That is one reason I appreciate the President's emphasis on community colleges, which in many areas of the country are working in conjunction with the private sector to learn what sort of skills need to be taught to a workforce in order to get the good high-paying jobs that exist. Indeed, community colleges are working closely with the private sector to do just that in places such as the State of Texas and elsewhere. We need to recommit ourselves to education because the one area that America has always surpassed its competition anywhere in the world has been in the area of innovation. It is our brain power, our spirit, our freedom and opportunity that have made us the envy of the rest of the world. I cringe when I hear my colleagues on the other side of the aisle, or when I hear on the political stump about hope being lost, about those people not having opportunities anymore, about the American dream leading to a nightmare, because the facts, No. 1, contradict that; and, No. 2, the only way that America can be defeated in a global competition is if we defeat ourselves and give up. It was Professor Harold Laswell who called politics a fight over who gets what, when, and how. If all we are going to talk about in the Senate and in Washington, DC, it is about who gets what, when, and how, we will be defeating ourselves. Indeed, we need to continue to enact progrowth policies that will provide opportunity for everyone in this country. If we ever lose sight of our vision as America being the last best hope of freedom-loving people around the world, we will have hurt ourselves and hurt the American people at the same time. Finally, those in this Senate who complain so mightily about lower taxes for individual taxpayers and use class warfare to talk about the rich not paying their fair share, these are the same people in many instances who voted for this tax cut for corporations that manufacture goods. I think their vote today was right. I think their rhetoric, when they talk about the President's policies and tax relief being wrong, is wrong, because it is higher taxes, more regulation, out-of-control litigation, and a burdensome regulatory environment that are hurting America's ability to compete in the global economy and are hurting the opportunity for American employers, including small businesses, to create those new jobs. Indeed, I think any fair observer would conclude that it is the policies of this administration and this Congress that have created greater opportunity. I do not believe we should give in to the hand wringing, to the anxiety-provoking rhetoric, or, indeed, the fearmongering that happens way too often in our political discourse because the facts point to the fact America is still and--as long as we retain our commitment to progrowth policies--will continue to be the last best hope of the world. Madam President, I yield the floor.

Mr. CORNYN

Mr. CORNYN. I thank the Senator. I do have a number of concerns about the Innocence Protection Act. Namely, I am concerned that under this bill, states effectively are required to adhere to a Federal regulatory system, answering to the Department of Justice, for defense and prosecution representation in State capital cases. However, I have been encouraged by recent modifications to the bill that lead me to believe a greater balance has been struck between ensuring strong capital representation systems and supporting the prosecution and sentencing of violent criminals. Senator Hatch, is it your belief that such a balance has been struck?

Mr. CORNYN. I thank the Senator. This so-called ``Texas carve-out'' is critical to my support for this bill. Without the carve-out, Texas and other States like it would not qualify for Federal grant funds, even though they already have an ``effective system'' for capital representation. And, without the carve-out, Texas and other States like it would have no incentive to apply for Federal grant funds because the Federal grant funds to be received would not exceed the State funds that would have to be spent to become eligible. On the other hand, because of the ``carve-out,'' Texas and other States like it can keep appointment power with locally-elected judges, maintain their own innovations designed to improve--not make impossible--the effective representation of capital defendants, and avoid the need for the creation of a new, needlessly expensive, centralized bureaucracy often times controlled by those who oppose the death penalty such as was the case with the former capital defense Resource Centers that were disbanded by Congress in the 1990's.

Mr. CORNYN. Thank you for your work on this, Mr. Hatch, and for helping to ensure that my home State of Texas qualifies as having an ``effective system for providing competent legal representation'' under the legislation. I have two other questions for you. In the new postconviction testing remedy created by this legislation for Federal prisoners--at what apparently will be section 3600(g) the bill allows the court to order a new trial if a DNA test result, in light of all of the other evidence, establishes, and I quote, ``by compelling evidence that a new trial would result in an acquittal.'' As you recall, the standard for granting new trials in what can sometimes be old cases was much debated during the Judiciary Committee's consideration of this bill. The Committee almost voted in favor of changing this standard of proof from ``would result in acquittal'' to ``did not commit the crime,'' and some discussed a middle option of raising the standard from preponderance of the evidence to ``clear and convincing evidence.'' Ultimately, we chose to defer addressing this issue until negotiations on a final package with the House of Representatives. And in the end, we chose neither of the standards discussed, but instead opted for elevating the standard of proof to ``compelling evidence.'' We discussed at the time why ``compelling'' would be the best term of art for setting a standard for reopening litigation of an issue. In particular, we looked to two cases that tell us what ``compelling'' means in this context--cases that give us confidence that we have set a high bar that will not allow the probably guilty to receive a new trial--and go free if a new trial proves impossible--and also will not allow defendants to seek new trials on the basis of evidence that they could have presented all along. As the Chairman of the Committee that reported this bill and the Senate companion bill's lead sponsor, I think that you can speak with some authority on this matter, and clarify for the record the thinking that went into the House and Senate's selection of the word ``compelling.'' Would you do so?

Mr. CORNYN. It does conform to my previous understanding and I do have confidence in it, Senator. Thank you. I regret taking up the Senate's time on this busy day, but I do have one other question, and this pertains to the bill's changes to CODIS and NDIS, the DNA index systems. It is my understanding that this bill places no limits on what States can upload into CODIS--that is, into their own databases.

Mr. CORNYN. As you know, I am a strong believer in the power of DNA to solve crimes. I want to see the United States develop as broad and as powerful a DNA database as possible. The States have a strong interest in solving past crimes. I also believe that there is no reason to exclude DNA from CODIS simply because charges against an arrestee are dismissed or he is acquitted--fingerprints are kept in such cases, and there is no reason to treat DNA differently than fingerprints. The bill bars States from keeping an arrestee's DNA sample if charges are dropped or he is acquitted. There is no reason to do so. Experience shows that felony arrestees--even those who are not ultimately convicted--are a good population from which to predict other crimes. Excluding unindicted arrestees will simply prevent States from solving more crimes. I understand that legislative compromise has forced us to exclude arrestees--even those indicted--if charges against them are dropped. I am glad to see that your understanding of the States's otherwise broad authority conforms to my own understanding-- that outside of the arrestee-sample context, States may still upload and exchange any DNA collected under State and local laws, policies, and practices on the NDIS database. In expressing this view, I would like to emphasize that keeping DNA samples in CODIS and NDIS does not affect privacy--the analysis used has no medical predictive value. The analysis of DNA that is kept in CODIS is what is called ``junk DNA''--it is impossible to determine anything medically sensitive from this DNA. For example, this DNA will not allow a tester to determine if the donor is susceptible to particular diseases. As the Justice Department noted in its official Views Letter on the predecessor to this bill, and I quote at length: [T]here [are no] legitimate privacy concerns that require the retention or expansion of these [H.R. 3214] expungement provisions. The DNA identification system is already subject to strict privacy rules, which generally limit the use of DNA samples and DNA profiles in the system to law enforcement identification purposes. See 42 U.S.C. 14132(b)-(c). Moreover, the DNA profiles that are maintained in the national index relate to 13 DNA sites that do not control any traits or characteristics of individuals. Hence, the databased information cannot be used to discern, for example, anything about an individual's genetic illnesses, disorders, or dispositions. Rather, by design, the information the system retains in the databased DNA profiles is the equivalent of a ``genetic fingerprint'' that uniquely identifies an individual, but does not disclose other facts about him. To those still concerned about some kind of civil liberties violation inherent in maintaining a DNA database, I would ask, what about Medicare and Medicaid?--they keep lots of medically sensitive information. Why should we trust those agencies, but not the FBI? Misuse of the information in CODIS and NDIS--if even possible--is prohibited by law. The Medicare and Medicaid system keep vast stores of medically sensitive information about people. If we are so afraid of CODIS and NDIS, what about Medicare? And again--fingerprints are kept for all arrestees--should we now expunge those too? The FBI maintains a database of fingerprints of arrestees--without regard to whether the arrestee is later acquitted or convicted. As Justice notes in its Views Letter on this bill, ``With respect to the proposed exclusion of DNA profiles of unindicted arrestees, it should be noted by way of comparison that there is no Federal policy that bars States from including fingerprints of arrestees in State and Federal law enforcement databases prior to indictment.'' Since database DNA is no more sensitive than fingerprints, and we would expunge DNA under S. 1700, should we also start throwing out fingerprints? I would also note that keeping as broad a database as possible will stop many violent predators much earlier. As the Justice Department also noted in its Views Letter, ``There is no reason to have a . . . Federal policy mandating expungement for DNA information. If the person whose DNA it is does not commit other crimes, then the information simply remains in a secure database and there is no adverse effect on his life. But if he commits a murder, rape, or other serious crime, and DNA matching can identify him as the perpetrator, then it is good that the information was retained.'' Finally, on this point, I would like to highlight the British example: The British tried expunging arrestees' DNA and found that they ended up with embarrassing ``improper'' matches from perpetrators who weren't supposed to get caught. Now they take DNA from all suspects (not just arrestees) and have a 2,000,000 profile database. As a result, the British now get DNA matches from crimes scenes in 40 percent of all cases, and had 58,176 ``cold hits'' from crime scenes in 2001-02. According to a recent National Institutes of Justice-commissioned study titled ``The Application of DNA Technology in England and Wales,'' the U.K. tried expunging DNA profiles for arrestees who are not ultimately convicted and quickly realized that this was a mistake. According to the report: While [a 1994 law] called for the expungement of profiles of individuals who were not ultimately convicted, periodic problems with the database administration ultimately led to a number of cases in which suspects were identified by samples which were retained in the system but should have been removed. This lead to a number of court cases and a decision from the House of Lords addressing the legality of such convictions. To address these public policy and legal issues, the House of Lords passed [a 2001 law] which . . . provides for the indefinite retention of DNA profiles on the [British database] even if suspects are not convicted.'' . . . [The new law] allows for the collection and retention of biological samples and DNA profiles for anyone who becomes a suspect during the course of a police investigation. As a result of these changes, the British now have 2,000,000 DNA profiles in their national database, they now get matches from 40 percent of all crime scenes with DNA, and they had 58,176 ``cold hits'' from crime scenes in 2001. Why wouldn't we want the same for our country? Another NIJ-commission study, produced by Washington State University and titled the ``National Forensic DNA Study Report,'' notes that ``the DNA database must have a strong pool of offenders for comparison. . . . the DNA database is a two-index system--a crime scene sample index, and an offender index. The effectiveness of either index is necessarily restricted by any limitation on the other index.'' From the British experience, we know that a broad database is highly effective. It is time to replicate that experience here, before more preventable crimes are committed. I am glad that we have moved far in that direction-- toward the British model--though we still have maintained the unfortunate anachronism of requiring arrestees' analyses to be expunged if charges against them are dropped.

Mr. CORNYN. I also would like to clarify which profiles states are required to have expunged from NDIS--the national-exchange database--as a condition of access. The bill allows States to upload anything that is collected ``under applicable legal authorities''--that is, that States or local governments collect under their own laws or policies. An exception is made, however, for two categories--unindicted arrestees and elimination-only samples. Then later, the bill provides that States must seek expungement of samples if, and I quote, ``the person has not been convicted of an offense of the basis of which that analysis was or could have been included in the index, and all charges for which the analysis was or could have been included in the index have been dismissed or resulted in acquittal.'' It is my understanding that, just as what will now be U.S. Code subsection (d)(2)(A)(i) requires that a person's analysis be expunged if it was originally uploaded on the basis of a criminal conviction and that conviction is overturned, this new subsection (ii) will require the analysis of the acquitted arrestee (or one for whom charges have been dismissed) to be expunged--but only if the analysis originally was or could have been included because he was an arrestee.

Mr. CORNYN. I thank the Senator. I share the perspective that Texas' system is preserved as a so-called ``effective system'' under the statute. And that is critically important. As you point out, in 2001, the Texas Legislature passed the Texas Fair Defense Act to overhaul Texas' indigent criminal defense system. The legislation passed ensures prompt appointment of an attorney for indigent criminal defendants, provides guidelines on method of appointment for counsel, establishes minimum standards for appointed attorneys in capital cases, and provides both State resources and oversight of county's indigent defense systems through a State Task Force on Indigent Defense. It is this system or any future version of it that specifically is intended to be protected by this language, is it not?

Mr. CORNYN. So under the DeLay proviso, Texas will not have to change a thing in order to receive grants under this bill--it is automatically pre-qualified?

Mr. CORNYN. On this issue--the issue of capital representation, I note that there is a provision in place negotiated by Majority Leader DeLay and other members of the Texas delegation in the House designed to protect the capital representation system that is in place in Texas? Do I understand that correctly?

Mr. CORNYN

Mr. CORNYN. We object.

Mr. CORNYN. Mr. President, I was sitting in my office watching on television the proceedings in the Chamber, and I was inspired to come to the Chamber to respond to some of the comments I heard on the Senate floor. I expected to be watching debate about reform of the oversight that this body provides for the intelligence community and homeland security but instead watched what appeared to be part of the Presidential campaign playing out here on the Senate floor. I just want to respond to some of the things that I heard, and not at great length. But I think in fairness to the American people they should not be fed just one side, which I think is fraught with inaccuracies. So I think a few facts are pertinent. First of all, I would say that after listening to the distinguished Senator from Illinois, you would wonder why in the world anyone would want to live in the United States of America today because things are so bad we might as well give up and depart for somewhere else. And you may have noticed, Mr. President, people are not knocking down the door to leave the United States of America because somehow we are no longer the land of opportunity and freedom and hope. Indeed, just the contrary is true. People are literally dying to get into the United States by any method they can because they recognize that America still is the last best hope of freedom-loving people anywhere in the world. For example, we heard some very dire statements made about job figures. Well, it just so happens that since August 2003, we learned today, 1.9 million new jobs have been created in the United States of America--1.9 million new jobs. That is not because the Government created the jobs, but it is because Government created the conditions that allowed the risk takers and the hard-working people all across this country to create jobs, by investing and building opportunities for those who wanted to find work. Now, the truth is, as we all know, we came out of a very difficult time at the beginning of President Bush's first term in office when he started his Presidency because during the end of President Clinton's term we were going through a recession. The recession had just started then. Then we know that the terrible events of 9/11 followed on shortly thereafter, with tremendous negative impact on our economy in addition to the terrible loss of human life. Then there were the corporate scandals at the highest level of corporate America which caused the public to lose confidence in the marketplace. Thanks to the efforts of this President and this administration, this Congress, thanks to the fact that we lowered taxes for hard-working men and women, it allowed them to save more, invest more, and for small businesses to create more jobs. Indeed, we are coming back with 1.9 million jobs being created since August 2003. If we had agreed with our colleagues on the other side of the aisle about what course to take, the recovery would have been killed in its infancy because their solution was to raise taxes, not to lower taxes and let people keep more of what they earn. Yet what they want to do is play the card of class warfare and accuse this President and this administration of favoring part of the population, the wealthiest, over the rest of America. The fact is, the tax cuts that were passed by this Congress affected every taxpayer, lowered the tax rates for even those of the most modest means, and are responsible for creating 1.9 million jobs. We continually hear criticism about this President's policy in Iraq and in the global war on terror. Our colleagues on the other side of the aisle have a short-term memory because the only reason we took Saddam Hussein out of Iraq, as the bloodthirsty dictator that he was, and put him in a prison cell, is because of the authorization of this Congress. An overwhelming majority of the Members of this Congress, of this Senate, voted to authorize the use of force in October of 2002, to enforce U.N. resolutions which Saddam Hussein had defied since 1991. I was at the same Senate Armed Services Committee where Mr. Duelfer testified a couple of days ago. While he confirmed that the intelligence the President relied on and this Congress relied on with regard to weapons of mass destruction proved not to be correct--and we are working in this bill to correct those deficiencies in our intelligence gathering and analysis capability--he did confirm Saddam Hussein had corrupted the Oil for Food Program, was evading sanctions, chased the inspectors out of his country because he didn't want them to know he was in the process of rebuilding his capacity to rearm himself with weapons of mass destruction as soon as those sanctions failed. Indeed, former Ambassador Paul Bremer, who served as the head of the coalition efforts to rebuild Iraq, said: The president was right when he concluded that Saddam Hussein was a menace who needed to be removed from power. [The president] understands that our enemies are not confined to al Qaeda, and certainly not just Osama bin Laden, who is probably trapped in his hide-out in Afghanistan. As the bipartisan 9/11 commission reported, there were contacts between al Qaeda and Saddam Hussein's regime going back a decade. We will win the war against global terror only by staying on the offensive and confronting terrorists and the state sponsors of terror--wherever they are. Right now, Abu Musab al-Zarqawi, a Qaeda ally, is a dangerous threat. He is in Iraq. I hope those who listen to the debate and the politics of this season and the attempt to score political points by criticizing this Nation's policy with regard to the global war on terror understand exactly what is going on. We are in the silly season, where sometimes the statements being made in pursuit of scoring political points stray way too far from the facts. The fact is, America is stronger and safer and better off as a result of President Bush's leadership and as a result of the leadership of this Congress. We have created opportunity for more Americans. America is more secure than we were on 9/11. We are constantly working, including here today, to make it safer. We have created 1.9 million jobs since August 2003 as a result of the policies of this Congress and this President. If we had accepted the rationale of our colleagues across the aisle and raised taxes and let spending run amok, then we would still be in very dire straits, indeed, and not on the road to recovery. I yield the remainder of the 20 minutes allotted to our side to the Senator from Missouri.

Mr. CORNYN. Mr. President, can I ask the distinguished Democratic whip if from the 20 minutes allotted to our side I could consume 10 minutes, and then Senator Talent be recognized to speak for 10 minutes, and then Senator Durbin be recognized for his time?

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

Mr. CORNYN

Mr. CORNYN. Mr. President, I congratulate Senator Chambliss and Senator Kennedy on this amendment which I think injects some needed rationality in this process. I certainly support the goal of improving the oversight of our intelligence community and homeland security efforts. But I think what has happened in our haste is that there has been some unintended consequences, and one is attempted to be remedied by this amendment. Simply stated, this amendment, as Senator Kennedy and Senator Chambliss have already addressed, would retain the immigration functions at the Border and Transportation Security Directorate in the Judiciary Committee. Mr. President, I, as does the Presiding Officer, serve on the Judiciary Committee in large part because of my concern about immigration and border security issues as a Senator from Texas, with a 1,200-mile border with Mexico, one of the more problematic borders of this country. I serve with Senators from California and Arizona. The only State not represented on the Southern border is the State of New Mexico. But as the Presiding Officer knows, immigration issues are exceedingly contentious and complex. Frankly, there are a number of Senators on the Judiciary Committee who have invested an awful lot of time and effort to try to get up to speed. And indeed, there are others, like me, who have introduced immigration reform bills, which I am hopeful will be brought up when we return in January or shortly thereafter. What I am concerned about is if we make this change now, it will delay long-overdue immigration reform in this country as the new committee to which it is assigned is getting up to speed. It is no slight meant to them. They are very distinguished and competent Senators. But the truth is, the staff and Senators who have been involved in immigration issues on the Judiciary for a long time have learned a lot, developed a lot of the relationships and contacts with the various parties who are interested in this issue, the stakeholders. Just in terms of injecting some modest bit of rationality in this process, I am pleased to join Senator Chambliss, Senator Kennedy, and Senator Leahy, who I know will also speak to this matter, and others on the Senate Judiciary Committee in saying that if common sense and rationality prevail in this process, then this amendment will be accepted, either by agreement, by unanimous consent, or by a vote. And I certainly would urge all of my colleagues to support the amendment in the event a vote is required. Mr. President, I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise today to introduce legislation designed to enhance Federal research on an emerging chronic disease in the U.S. known as pulmonary hypertension. PH is a serious and often fatal condition where the blood pressure in the lungs rises to dangerously high levels. In PH patients, the walls of the arteries that take blood from the right side of the heart to the lungs thicken and constrict. As a result, the right side of the heart has to pump harder to move blood into the lungs, causing it to enlarge and ultimately fail. PH can occur without a known cause or be secondary to other conditions such as; collagen vascular diseases, i.e., scleroderma and lupus, blood clots, HIV, sickle cell, and liver disease. PH does not discriminate based on race, gender or age. Patients develop symptoms of shortness of breath, fatigue, chest pain, dizziness, and fainting. Unfortunately, these symptoms are frequently misdiagnosed, leaving patients with the false impression that they have a minor pulmonary or cardiovascular condition. By the time many patients receive an accurate diagnosis, the disease has progressed to a late stage, making it impossible to receive a necessary heart or lung transplant. With this legislation, I am proud to join the Pulmonary Hypertension Association in the fight against this deadly illness. PHA is the Nation's oldest and largest organization dedicated to finding a cure for PH and improving the quality of life for PH patients and their families. I would particularly like to recognize the contributions of four PHA members from my home State of Texas who have contributed so much to this worthy cause--Leo and Bobbie Fields, and Jack Stibbs and his daughter Emily. Their commitment to improving the quality of life for PH patients and pursuing a cure for this disease is truly inspiring. I would also like to recognize our colleague Congressman Kevin Brady for his leadership in introducing the ``PH Research Act'' in the other body. A few years ago the scientifc community discovered the first gene associated with pulmonary hypertension. This was a landmark discovery in the battle to unravel the mystery surrounding this disease. The ``PH Research Act'' seeks to capitalize on this exciting advancement by establishing ``Centers of Excellence'' on pulmonary hypertension through the National Heart, Lung and Blood Institute at the National Institutes of Health. These Centers would focus on: 1. basic and clinical research into the cause, diagnosis, and treatment of PH: 2. the training of new investigators in PH research; 3. continuing education for health care professionals regarding PH with a focus on early diagnosis and 4. the dissemination of information regarding the disease to the general public. This is an important bill that has the potential to help tens of thousands of Americans and their families, who are struggling with this devastating disease. I look forward to working with the Health, Education, Labor and Pensions Committee to advance the ``PH Research Act.''

Mr. CORNYN

Mr. CORNYN. Mr. Chairman, on behalf of my co-sponsors, Senators McConnell and McCain, I rise today to introduce legislation that I believe has the potential to improve profoundly the lives of millions of Americans across the country. The Auto Choice Reform Act of 2004 offers a real solution to a very real problem faced by those of us who drive every day--the high cost and inadequate compensation of the current tort and liability automotive insurance system. The tort system ought to ideally compensate people injured by negligence and deter others from acting irresponsibly. With respect to auto accidents, the system fails miserably on both counts. Numerous studies over the past 75 years document just how poorly the tort system compensates injured people. Almost one-third of injured people recover nothing at all, and many injured persons who do recover compensation must wait years to receive payment from the other person's insurer. Worst of all, people with minor injuries recover compensation far in excess of their actual losses while many people with serious injuries are grossly underpaid. The RAND Institute for Civil Justice has found that people with economic losses between $500 and $1,000 recover on average 2\1/2\ times their economic loss. This is largely due to the fact that it is cheaper for an insurer to pay a questionable claim than to pay the costs of going to court, where they risk paying a multiplier of economic damages for pain and suffering. The perverse incentives generated by pain-and-suffering damage awards also cause rampant fraud and abuse in auto insurance claims. A study by the RAND Institute for Civil Justice confirms that between 35 and 42 percent of medical costs claimed in auto accidents occur in response to the incentives of the tort liability system. In other words, more than one-third of all medical losses claimed in auto accidents are fraudulent or exaggerated--attempts to nab the pain-and-suffering jackpot. On the other hand, people with the highest economic losses, in excess of $100,000, recover only 9 percent of their economic loss on average. To add injury to insult, that amount doesn't even include their lawyers' standard one-third fee. Because most drivers don't carry enough insurance to even pay this level of economic loss, particularly after attorneys' fees are deducted, people with the most serious injuries rarely recover anything for pain-and-suffering. In short, we would be hard pressed to design a worse compensation system if we tried. Indeed, the system is so bankrupt that lawyers in the auto insurance litigation currently consume more than 25 cents out of every premium dollar spent, an amount that is significantly more than the amount received by those actually injured for medical bills and lost wages. In total, more than $16 billion went to lawyers in 2001 for automobile related personal injury cases. What about deterrence? Perhaps it is worth paying for a poor compensation system if people are deterred from driving badly, thereby avoiding injuries in the first place. Some studies have made this argument but the most comprehensive analysis of accident data, again by the RAND Institute for Civil Justice, has found that the tort system has little or no deterrent impact. This conclusion is a logical one. If a driver is not deterred by the threat of personal danger from reckless driving, then surely that driver is not deterred by the penalty for reckless driving--simply a modest increase in one's insurance premium. The current system is also unnecessarily expensive, as is clearly demonstrated by the fact that the Joint Economic Committee estimates that switching to the new Personal Injury Protection system, discussed below, which relies primarily on the payment of economic losses for all injured persons without regard to fault and largely without the need for lawsuits, could save drivers a total of $48 billion a year in unnecessary premiums. Excessive premiums disproportionately impact low income Americans and welfare recipients. Families in the bottom 20 percent of incomes who buy auto insurance spend 16 percent of their household income on that insurance. That percentage is seven times the proportion that families in the top 20 percent spend. Lower premiums would enable many low income workers to afford the cars they need to travel to better-paying jobs. The Auto Choice reform legislation we are proposing today would reduce premiums for low income people by more than it would reduce them for the average driver--both in terms of percentages and often in terms of absolute dollars. And all drivers would see significantly lower premiums. Auto Choice is designed to allow consumers to choose the type of insurance that meets their needs and to opt out of the pain-and- suffering litigation lottery associated with the current system. Essentially, drivers are permitted under Auto Choice to choose a new Personal Injury Protection, ``PIP'', Insurance under which they would be compensated without regard to fault for all economic losses up to their policy limits by their own insurance company, with nothing available for pain and suffering. Alternatively, for those who remain in the current tort system, they will select a small amount of additional coverage similar to an uninsured motorist for situations involving another motorist that opted for the PIP system--a premium offset by the savings realized by everyone as a result of the overall shift away from the lawsuit system. The system does not abolish lawsuits. By design, there will be reduced incentives to head straight to court, but the right to sue remains firmly intact--as injured parties not fully compensated can sue to recover excess economic losses over and above that covered by the PIP coverage and other sources of first party insurance. They can also sue for all damages, including pain and suffering, when the accident is caused by a driver who is drunk or on drugs. In summary, if a driver wants to maintain the possibility of recovering for pain and suffering, he will stay in essentially the current system. On the other hand, if he wants to opt-out of the current system in exchange for lower premiums with prompt compensation for economic losses--then he instead will choose the personal injury protection system. The idea is not a new one. Indeed, this idea has been discussed--and even introduced in one form or another--for over thirty years now. Several versions of Auto Choice reform have enjoyed broad support on both sides of the aisle. Senator Daniel Patrick Moynihan, Steve Forbes, Michael Dukakis, Mayor Rudy Guliani, Congressman Dick Armey--just to name a few--have all opined in support of giving drivers a way out of the current ineffective system. The time has come for Congress to act. The results of our action are clear and tangible: were Congress to enact Auto Choice Reform legislation now, motorists would stand to save as much as $48 billion next year. Think about that for just one moment. Over 5 years, Americans would be able to save almost $250 billion--savings tantamount to a massive tax cut with absolutely no negative impact to the Federal deficit. And what does this mean for the average American? The average American family with two cars will be able to save nearly $380 a year, according to Joint Economic Committee estimates. Particularly encouraging is the effect these savings will have for low income families. Lower auto insurance premiums will make owning a car more affordable for poor Americans, allowing them to find and keep better-paying jobs and have longer commutes. Auto Choice would allow low-income drivers to save almost 37 percent on their overall automobile premium. For a low-income household, these savings are the equivalent of 5 weeks of groceries or nearly 4 months of electric bills. Auto Choice Reform can provide immediate and real relief for average, mainstream American families across the country. Those are real savings, resulting from a sound system that offers legitimate choice--a choice between guaranteed upfront savings on insurance premiums on one hand; and on the other, the right to sue for non-economic damages such as pain and suffering in the event an accident one day occurs. For most Americans, I believe the choice is an easy one. Unfortunately, for most Americans today, that choice is unavailable. The Auto Choice Reform Act of 2004 gives the American people that choice. Let's get government back to doing what it ought to--protecting the rights of all Americans to have the freedom to make choices about how they live their lives.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise today to introduce legislation designed to enhance Federal research on an emerging chronic disease in the U.S. known as pulmonary hypertension. PH is a serious and often fatal condition where the blood pressure in the lungs rises to dangerously high levels. In PH patients, the walls of the arteries that take blood from the right side of the heart to the lungs thicken and constrict. As a result, the right side of the heart has to pump harder to move blood into the lungs, causing it to enlarge and ultimately fail. PH can occur without a known cause or be secondary to other conditions such as; collagen vascular diseases, i.e., scleroderma and lupus, blood clots, HIV, sickle cell, and liver disease. PH does not discriminate based on race, gender or age. Patients develop symptoms of shortness of breath, fatigue, chest pain, dizziness, and fainting. Unfortunately, these symptoms are frequently misdiagnosed, leaving patients with the false impression that they have a minor pulmonary or cardiovascular condition. By the time many patients receive an accurate diagnosis, the disease has progressed to a late stage, making it impossible to receive a necessary heart or lung transplant. With this legislation, I am proud to join the Pulmonary Hypertension Association in the fight against this deadly illness. PHA is the Nation's oldest and largest organization dedicated to finding a cure for PH and improving the quality of life for PH patients and their families. I would particularly like to recognize the contributions of four PHA members from my home State of Texas who have contributed so much to this worthy cause--Leo and Bobbie Fields, and Jack Stibbs and his daughter Emily. Their commitment to improving the quality of life for PH patients and pursuing a cure for this disease is truly inspiring. I would also like to recognize our colleague Congressman Kevin Brady for his leadership in introducing the ``PH Research Act'' in the other body. A few years ago the scientifc community discovered the first gene associated with pulmonary hypertension. This was a landmark discovery in the battle to unravel the mystery surrounding this disease. The ``PH Research Act'' seeks to capitalize on this exciting advancement by establishing ``Centers of Excellence'' on pulmonary hypertension through the National Heart, Lung and Blood Institute at the National Institutes of Health. These Centers would focus on: 1. basic and clinical research into the cause, diagnosis, and treatment of PH: 2. the training of new investigators in PH research; 3. continuing education for health care professionals regarding PH with a focus on early diagnosis and 4. the dissemination of information regarding the disease to the general public. This is an important bill that has the potential to help tens of thousands of Americans and their families, who are struggling with this devastating disease. I look forward to working with the Health, Education, Labor and Pensions Committee to advance the ``PH Research Act.''

Mr. CORNYN. Mr. Chairman, on behalf of my co-sponsors, Senators McConnell and McCain, I rise today to introduce legislation that I believe has the potential to improve profoundly the lives of millions of Americans across the country. The Auto Choice Reform Act of 2004 offers a real solution to a very real problem faced by those of us who drive every day--the high cost and inadequate compensation of the current tort and liability automotive insurance system. The tort system ought to ideally compensate people injured by negligence and deter others from acting irresponsibly. With respect to auto accidents, the system fails miserably on both counts. Numerous studies over the past 75 years document just how poorly the tort system compensates injured people. Almost one-third of injured people recover nothing at all, and many injured persons who do recover compensation must wait years to receive payment from the other person's insurer. Worst of all, people with minor injuries recover compensation far in excess of their actual losses while many people with serious injuries are grossly underpaid. The RAND Institute for Civil Justice has found that people with economic losses between $500 and $1,000 recover on average 2\1/2\ times their economic loss. This is largely due to the fact that it is cheaper for an insurer to pay a questionable claim than to pay the costs of going to court, where they risk paying a multiplier of economic damages for pain and suffering. The perverse incentives generated by pain-and-suffering damage awards also cause rampant fraud and abuse in auto insurance claims. A study by the RAND Institute for Civil Justice confirms that between 35 and 42 percent of medical costs claimed in auto accidents occur in response to the incentives of the tort liability system. In other words, more than one-third of all medical losses claimed in auto accidents are fraudulent or exaggerated--attempts to nab the pain-and-suffering jackpot. On the other hand, people with the highest economic losses, in excess of $100,000, recover only 9 percent of their economic loss on average. To add injury to insult, that amount doesn't even include their lawyers' standard one-third fee. Because most drivers don't carry enough insurance to even pay this level of economic loss, particularly after attorneys' fees are deducted, people with the most serious injuries rarely recover anything for pain-and-suffering. In short, we would be hard pressed to design a worse compensation system if we tried. Indeed, the system is so bankrupt that lawyers in the auto insurance litigation currently consume more than 25 cents out of every premium dollar spent, an amount that is significantly more than the amount received by those actually injured for medical bills and lost wages. In total, more than $16 billion went to lawyers in 2001 for automobile related personal injury cases. What about deterrence? Perhaps it is worth paying for a poor compensation system if people are deterred from driving badly, thereby avoiding injuries in the first place. Some studies have made this argument but the most comprehensive analysis of accident data, again by the RAND Institute for Civil Justice, has found that the tort system has little or no deterrent impact. This conclusion is a logical one. If a driver is not deterred by the threat of personal danger from reckless driving, then surely that driver is not deterred by the penalty for reckless driving--simply a modest increase in one's insurance premium. The current system is also unnecessarily expensive, as is clearly demonstrated by the fact that the Joint Economic Committee estimates that switching to the new Personal Injury Protection system, discussed below, which relies primarily on the payment of economic losses for all injured persons without regard to fault and largely without the need for lawsuits, could save drivers a total of $48 billion a year in unnecessary premiums. Excessive premiums disproportionately impact low income Americans and welfare recipients. Families in the bottom 20 percent of incomes who buy auto insurance spend 16 percent of their household income on that insurance. That percentage is seven times the proportion that families in the top 20 percent spend. Lower premiums would enable many low income workers to afford the cars they need to travel to better-paying jobs. The Auto Choice reform legislation we are proposing today would reduce premiums for low income people by more than it would reduce them for the average driver--both in terms of percentages and often in terms of absolute dollars. And all drivers would see significantly lower premiums. Auto Choice is designed to allow consumers to choose the type of insurance that meets their needs and to opt out of the pain-and- suffering litigation lottery associated with the current system. Essentially, drivers are permitted under Auto Choice to choose a new Personal Injury Protection, ``PIP'', Insurance under which they would be compensated without regard to fault for all economic losses up to their policy limits by their own insurance company, with nothing available for pain and suffering. Alternatively, for those who remain in the current tort system, they will select a small amount of additional coverage similar to an uninsured motorist for situations involving another motorist that opted for the PIP system--a premium offset by the savings realized by everyone as a result of the overall shift away from the lawsuit system. The system does not abolish lawsuits. By design, there will be reduced incentives to head straight to court, but the right to sue remains firmly intact--as injured parties not fully compensated can sue to recover excess economic losses over and above that covered by the PIP coverage and other sources of first party insurance. They can also sue for all damages, including pain and suffering, when the accident is caused by a driver who is drunk or on drugs. In summary, if a driver wants to maintain the possibility of recovering for pain and suffering, he will stay in essentially the current system. On the other hand, if he wants to opt-out of the current system in exchange for lower premiums with prompt compensation for economic losses--then he instead will choose the personal injury protection system. The idea is not a new one. Indeed, this idea has been discussed--and even introduced in one form or another--for over thirty years now. Several versions of Auto Choice reform have enjoyed broad support on both sides of the aisle. Senator Daniel Patrick Moynihan, Steve Forbes, Michael Dukakis, Mayor Rudy Guliani, Congressman Dick Armey--just to name a few--have all opined in support of giving drivers a way out of the current ineffective system. The time has come for Congress to act. The results of our action are clear and tangible: were Congress to enact Auto Choice Reform legislation now, motorists would stand to save as much as $48 billion next year. Think about that for just one moment. Over 5 years, Americans would be able to save almost $250 billion--savings tantamount to a massive tax cut with absolutely no negative impact to the Federal deficit. And what does this mean for the average American? The average American family with two cars will be able to save nearly $380 a year, according to Joint Economic Committee estimates. Particularly encouraging is the effect these savings will have for low income families. Lower auto insurance premiums will make owning a car more affordable for poor Americans, allowing them to find and keep better-paying jobs and have longer commutes. Auto Choice would allow low-income drivers to save almost 37 percent on their overall automobile premium. For a low-income household, these savings are the equivalent of 5 weeks of groceries or nearly 4 months of electric bills. Auto Choice Reform can provide immediate and real relief for average, mainstream American families across the country. Those are real savings, resulting from a sound system that offers legitimate choice--a choice between guaranteed upfront savings on insurance premiums on one hand; and on the other, the right to sue for non-economic damages such as pain and suffering in the event an accident one day occurs. For most Americans, I believe the choice is an easy one. Unfortunately, for most Americans today, that choice is unavailable. The Auto Choice Reform Act of 2004 gives the American people that choice. Let's get government back to doing what it ought to--protecting the rights of all Americans to have the freedom to make choices about how they live their lives.

Mr. CORNYN

Mr. CORNYN. Mr. President, I thank both managers of the bill, the chairman of the Governmental Affairs Committee and the ranking member, Senator Lieberman, for the great work they are doing on this bill. I know it is not easy, but it is vital that we achieve the kinds of reforms the 9/11 Commission and the Senate Select Committee on Intelligence and others, over the years, have said would help make our Nation stronger. Yesterday, I proposed an amendment to this bill which dealt with a relatively narrow area but one I think is certainly relevant to what the 9/11 Commission recommended and, indeed, to the ultimate purpose of making America a safer place. Unfortunately, it is one that tends to be overlooked. That does not have to do with our physical security, potential cause of death and injury to the American people on our own soil but, rather, a body blow to our economic security. Indeed, one of the consequences of 9/11 was not just the terrible loss of life and injury but also the disruption to our economy, which resulted in chaos and many people being laid off work because of the economic disruption. This amendment had to do with cyber-security. I know it is something we do not think about very much but, indeed, now that we are so dependent upon computers for our way of life, to enhance our productivity, to communicate with one another, to do business, we somehow perhaps take for granted that they will always be secure. And particularly when it comes to our water utilities, our communications systems, our transportation systems, and financial networks, there is a very real danger that cyber-terrorists, those who would try to attack and dismantle and disrupt our financial, transportation, communications, and utility networks could wreak a terrible blow to the American economy. Now, my interest in this subject dates back several years to when I convened a panel in Texas, the State Infrastructure Protection Advisory Committee, as attorney general. We met hundreds of hours with both private and public sector participants, as well as people in the academic community, to try to figure out what we could do, No. 1, to identify what the problem was, and what we could do to make it better. Well, what we found is that in many instances because of liability concerns, because of concerns about trying to achieve and maintain public confidence in one's business or product, that the private sector was much better prepared than the Government was for cyber-attacks. I am pleased to say that Congress has begun to work to address this critical need for security in our computer networks by passing the Federal Information Security Management Act, or FISMA. Its purpose is to improve the information security of our computer networks and support Federal agencies by requiring top-to-bottom agency planning for information security and compliance with mandatory standards and benchmarks developed by the National Institute of Standards and Technology. FISMA also requires Federal agencies to conduct an annual evaluation of their computer security programs and to submit an effectiveness report to the Office of Management and Budget, the OMB. For several years, the House Government Reform Subcommittee, chaired by Congressman Adam Putnam, the Technology, Information Policy, Intergovernmental Relations and the Census Subcommittee, has been working with the General Accounting Office to produce a report card for 24 Federal agencies to see how well they are complying with congressional intent as expressed in FISMA, the Federal Information Security Management Act. What I would like to show you, Mr. President and my colleagues, is the report card that has been generated because I think it is indicative of the problems we have had and, indeed, the problems we still have, and how modest our improvement has been. Indeed, you can see from this chart showing the Federal computer security report card, issued on December 9, 2003, that overall Governmentwide, Government agencies, when it came to security of their computer systems, got a D, not a grade any one of us would be proud to take home. But I must say, as bad as a D is, in 2003, it is better than the F that many agencies got in 2002, before Congress began to get involved in trying to upgrade the security of our computer networks. But you can see, some of these agencies have improved from an F to a D. Indeed, the Department of Defense in 2002 had an F. In 2003, it got a D. The Small Business Administration went from an F to a C-. But we have some--the Department of the Interior, the Department of Agriculture, the Department of Housing and Urban Development, the Department of State--that in 2002 got an F and in 2003 got an F. So I am not sure Congress is as successful as we should be or as we would like to be in getting the attention of the people who work in those agencies and who should be committed to carrying out this information security provision and protecting our Government computer systems from the potential of cyber-attack and the potential disruption to our economy. But I want to say in conclusion on that matter how much I appreciate the willingness of the Senator from Maine, the distinguished chair of the Governmental Affairs Committee, and the Senator from Connecticut, the distinguished ranking member of that committee, to work with us and consider this amendment and, indeed, to agree that the amendment should go forward because I think this is an easily overlooked but, nevertheless, a very important part of our security. Mr. President, I have two other amendments that have not yet been filed that I will obviously not call up but I would like to just preview for my colleagues. I have talked, also, to the chairman of the bill and the ranking member. We are going to continue to work with them and their staffs to try to make sure these matters can be worked out, if that is at all possible, much in the same manner we worked out this cyber-security provision. These matters have to do with other recommendations of the 9/11 Commission. Here again, the job that is before us is vast, indeed, as reflected by the 41 different recommendations of the 9/11 Commission and the need for intelligence reform reflected in the bill before us. But perhaps it is because of the perspective I have as a Senator from the State of Texas, which has the longest border of any State with the country of Mexico--and, of course, beyond Mexico on to Central America and South America--the source of many concerns relative to human smuggling and to enforcement of our immigration and other laws related to those issues. First, we intend to offer an amendment to increase the penalties that can be assessed upon a successful prosecution for the crime of human smuggling. As the 9/11 Commission said: There is evidence to suggest that, since 1999, human smugglers have facilitated the travel of terrorists associated with more than a dozen extremist groups and that human smugglers clearly have the credentials necessary to aid terrorist travel. They also noted that many countries, because of their lack of security, make human smuggling an attractive avenue for terrorists in need of travel facilitation. In terms of our southern border, Under Secretary of the Department of Homeland Security Asa Hutchinson has told me and others that there is no documented instance of a terrorist actually coming across our southern border, but the truth is, it is very porous. If the motivation is high enough and the price is right, the same person who can be smuggled across the border for economic reasons because they want to come to work in this country outside of our laws, someone from a country other than Mexico, perhaps an Islamic extremist, somebody who wanted to take advantage of that porous border would, indeed, hire a human smuggler to bring them across our southern border into the United States and do us harm. It is important that our Federal policy and our criminal laws reflect both the strongest possible concern about this issue and express the will of Congress that human smugglers will be punished in a way commensurate with the threat they pose to the American people. The truth is, we cannot ignore this issue and believe that it is just related to people who want to come here and work. Money talks. And where human smugglers exist, they will go to the highest bidder to deliver their services in a way that could indeed deliver terrorists on to our soil. That relates to one amendment on which we will continue to work with the distinguished chairman and ranking member and their staffs to see if we can work out an agreement. The next amendment relates to another provision in the 9/11 Commission report. The Commission, under the subheading ``Immigration Law and Enforcement,'' said: There is a growing role for state and local law enforcement agencies. They need more training and work with federal agencies so they can cooperate more effectively with those federal authorities in identifying terrorist suspects. Again, on page 383 of the 9/11 Commission report, the Commission said: The challenge for national security in an age of terrorism is to prevent the very few people who may pose overwhelming risks from entering or remaining in the United States undetected. This amendment, which we intend to file and call up later--and we will continue to work with the managers of the bill on it--has to do with the authority of State and local law enforcement authorities to detain a certain narrow class of persons who are illegally in the country. Those relate to what I would think are three noncontroversial categories: Those who are absconders--in other words, 80,000 felons who are in the country illegally and running from justice. We don't have the capacity to know exactly where they are now because we have, unfortunately, ignored the crisis in our immigration enforcement for many years. Indeed, more than that, there are approximately, according to some guesses, between 300,000 and 400,000 people under final orders of deportation in the United States, and we simply don't have the Federal authorities sufficient to locate them and enforce final orders of deportation. This bill would narrowly address those who are under final orders of removal, those who have signed voluntary departure agreements, and those who have revoked visas. It would not, as some previous legislation that has been filed both here and in the House, offer an opportunity for local and State law enforcement officials to enforce a whole broad range of our immigration laws. This relates to a narrow group who are absconders from justice, including convicted felons and others, and reaffirms the authority of State and local law enforcement both to enforce those violations in the normal course of carrying out their duties and will make sure that we get the army of additional law enforcement authorities to assist the current Federal authorities who are mainly located along our border region when it comes to our border security and homeland security interests. Finally, this bill would direct the Department of Homeland Security to take custody within 48 hours of these persons so detained by State or local officials or else pay the locality to detain these particular class of aliens. Currently, the process is that once someone has been identified and perhaps detained for a violation of one of a host of our immigration laws, the common practice is to tell them to come back for a future hearing for deportation. It is no surprise to any of us that about 90 percent of them melt into the landscape and are never heard from again. Simply put, we need to have law enforcement authorities at all levels--national, State, and local--join forces, as the 9/11 Commission recommended, to deal with this certain narrow class of people who are under final orders of deportation from our country, those who have signed voluntary departure agreements, and those who have had their visas revoked. These are people who have exercised any right they may have to due process and should have no further recourse. I look forward to working with the manager and the ranking member and their staffs to try to see if we can work this out.