Christopher Dodd

Mr. DODD

Mr. DODD. Mr. President, I rise this afternoon to discuss briefly the nomination of Judge Michael Chertoff, of New Jersey, to be Secretary of Homeland Security. I thank our colleagues on the Homeland Security and Governmental Affairs Committee, especially Chairwoman Susan Collins and my dear friend and colleague from Connecticut, Joseph Lieberman, for their close consideration of this nomination. The task of reviewing the nominee for Secretary of Homeland Security is a difficult one, and the committee did a fine job. I have reviewed the credentials of Judge Chertoff. They are impressive. In a legal career spanning over a quarter of a century, Judge Chertoff has shown a respectable dedication to public service. In my view, he has also demonstrated an ability effectively to manage a variety of security issues. For these reasons, I believe that Judge Chertoff is qualified and capable to serve as Secretary of the Department of Homeland Security. I plan on voting for his nomination. The job for which Judge Chertoff is being nominated is a challenging one. In this post 9/11 era, the Secretary of Homeland Security bears the primary responsibility of ensuring the safety of all Americans from threats that range from terrorist attacks to natural phenomena. In order to meet this responsibility, the Secretary must oversee 22 separate agencies and 180,000 employees, all of whom carry out critical daily duties that include safeguarding our borders, securing our domestic infrastructure, and providing emergency disaster assistance. We all know that success in carrying out these duties will rest on the ability of the Secretary to coordinate and manage the resources at his disposal. They are huge. If confirmed, Judge Chertoff will unfortunately find that the current resources at his disposal are inadequate to ensure the operation of an effective Department of Homeland Security. I strongly agree with several of my colleagues on the Homeland Security and Government Affairs Committee who argue that more must be done to improve the Department's ability to identify security threats and to respond to these threats in an effective and appropriate manner. I agree that the Department of Homeland Security must be given adequate resources to address the plethora of security vulnerabilities that continue to plague our borders, airports, seaports, transportation systems, utility networks, and financial networks. I also agree that more work must be done to develop and implement a Government-wide strategy on homeland security activities, and to devise specific plans of action for specific threats. Furthermore, I strongly concur that more resources must be provided to our first responders--the millions of brave men and women who make up our front lines of defense at home. For any homeland security response to be fully effective and successful, our firefighters, law enforcement personnel, and emergency response teams require the most updated equipment and training to function. Regrettably, the administration's fiscal year 2006 budget deeply cuts these and other initiatives related to homeland security. All of these challenges that I mention demand immediate and long-term investments. While I applaud the work that has already been done to enhance our domestic security since 9/11, I remain, as many of my colleagues do, deeply disturbed by the administration's continued disinclination to invest adequately in these activities. As more gaps in our security are uncovered and exploited, and as more work is being done to enhance our capabilities in identifying closing these gaps, the Bush administration's policy has been to provide less resources, including unthinkable cuts of $615 million to State homeland security initiatives and our first responders. How can we fully expect to be safe as a nation if the very people who are committed to our safety are deprived of the vital resources that ensure our safety? In his testimony before the Homeland Security and Governmental Affairs Committee, Judge Chertoff indicated his determination to `` . . . improve our technology, strengthen our management practices, secure our borders and transportation systems, and most important, focus each and every day on keeping America safe from attacks.'' I am encouraged by these remarks, and I hope Judge Chertoff's determination can allow him to meet the challenges, but he faces some awesome ones within the administration, if, in fact, these budget cut proposals are enacted into law. I am also encouraged by the remarks he made regarding the rights to due process that all Americans enjoy. In his testimony to the Homeland Security and Governmental Affairs Committee, Judge Chertoff said: I believe that we cannot live in liberty without security, but we would not want to live in security without liberty. I believe this position is noteworthy, especially in light of the report issued by the Department of Justice inspector general in 2003 that criticized the prolonged detention of hundreds of people-- primarily immigrants--of suspected ties to terrorism that were later deemed groundless. Judge Chertoff admitted that mistakes were made in the detention and treatment of these individuals--an admission rarely heard from this administration--and vowed to prevent them from happening again. The question for our country is not whether Judge Chertoff is the right man for the job--I believe he is--but whether Judge Chertoff will be given an impossible job by the President who nominated him. We surely cannot meet the needs of our homeland security apparatus on a tin-cup budget, just as we cannot meet the needs of our military, our schools, and our health care facilities. I find it troubling that--at the same time as it cuts support for police, firefighters, schoolchildren, and hospitals--this administration continues to view as sacrosanct the massive tax cuts worth $1.6 trillion that benefit only some of the most wealthy individuals in our Nation. Clearly, the President is not willing to ask any of these people--although I think many of them would be more than willing--to make the sacrifice for the well-being of our Nation. Yet, at the same time, the President is willing to tell firefighters, law enforcement personnel, and emergency response teams--people who risk their lives every day for our Nation--that not only are they going to get fewer resources each year, but they are required to do more with less. This severely skewed set of priorities is simply stunning. While it may be difficult for many of us to see this mismatch clearly today, I believe future historians who write about this period will harshly judge it as such. If confirmed, Judge Chertoff faces formidable and daunting challenges--challenges that must be overcome if we are to ensure the safety of this country and well-being of all Americans. I speak on behalf of all of my colleagues when I wish him the best in this very difficult endeavor he is willing to undertake. I am also here to discuss another issue raised by our colleague, Senator Carl Levin of Michigan. The issue concerns the repeated failure of this administration to provide the Senate with information necessary to carry out its constitutional responsibilities of giving advice and consent and conducting oversight of the executive branch. In a letter written by the Department of Justice to Senators Lieberman and Levin on February 7--just over a week ago--the Department of Justice claimed that an unredacted document related to the Chertoff nomination would not be provided to the Homeland Security and Governmental Affairs Committee because `` . . . it contains information covered by the Privacy Act . . . as well as deliberative process material.'' The assertion by the Department of Justice that their inability to comply rests on the Privacy Act is absurd and wholly unacceptable. As Senator Levin has stated--and I strongly agree with him in this-- the Privacy Act protects private individuals from having personal information released without their consent. In this case, the Department of Justice is using the Privacy Act to conceal the names of public officials who have engaged in Government activities at taxpayers' expense. That is precisely the kind of case in which Congress ought to have full knowledge of Government personnel and their activities in order to exercise its advice and consent responsibility fully. To deny the Senate information about what public officials are doing at taxpayers' expense is essentially to deny the American people their right to know what their Government is or is not doing in the name of its citizens. To deny the American people their right to know of their Government's actions is an abuse of not only the Privacy Act, it is an abuse of power, in my view. This may seem like a small matter to some, just one document. However, it should be noted that Senator Levin has precisely and carefully raised an issue that would be deeply disturbing to anyone who is committed to openness and accountability in our Government. I suggest to my colleagues that we are going to be seeing this issue arise over and over again if we as a body--all of us here--do not challenge it. I do not care what party is in the White House. If any administration starts making the case in the Executive Branch that the Privacy Act applies to Government personnel and Government documents that Congress may need to fulfill its Constitutional obligations, then a dangerous precedent will be set--one that I think we will deeply regret. This matter reflects an already persistent, almost obsessive preoccupation by the current administration with secrecy, thereby avoiding accountability to Congress and, of course, to the citizens we seek to represent. The examples of this preoccupation are almost too many to recite. One example that comes to mind is when Members of Congress and environmental organizations were unable to ascertain who--just the names--participated in the Vice President's energy task force, the group which laid the blueprints for the administration's current energy policy. Another example is the refusal of the recent nominee, now current Attorney General, to provide information to the Judiciary Committee pertaining to the development of his legal rationale for permitting torture. Of particular note in this case, when asked to provide information, the Attorney General said: I do not know what notes, memoranda, e-mails, or other documents others may have about these meetings, nor have I conducted a search. The unwillingness even to search for information requested by Congress epitomizes a certain official arrogance that sets a dangerous precedent because, when carried to its conclusion, it impairs and even impedes most congressional oversight. Government employees are named in countless documents that Congress needs in order to carry out its constitutionally mandated responsibilities and to shine the light where appropriate for the people of this country on the actions of our Government. In closing, I do not believe Judge Chertoff is an architect of the policy to deny the public their right to know what their Government is doing. That point needs to be made crystal clear. If I thought that were the case, I would not support this nominee. I think Judge Chertoff has made clear how he views these matters. But Senator Levin has raised a very important issue that transcends this nomination and reaches every agency and office in this government. It is the issue of preserving the openness, transparency, and accountability of our democratic government. I thank Senator Levin who, once again, during his service here, has proved how valuable attention to detail is. I commend my colleague for raising it. I thank the indulgence of the Chair. I yield the floor.

Mr. DODD

Mr. DODD. Mr. President, I thank my colleague from Pennsylvania. One of the great pleasures over the past 24 years has been to serve with Arlen Specter in this body. We are nearing the end of consideration of this bill. I would like to spend just a few minutes to offer some thoughts on it. First, a brief word about the process by which this bill has been considered by the Senate. I don't think it is an overstatement to say that--aside from the details of the legislation itself--the most important factor in its expected passage is the unanimous consent agreement that was put into place at the onset of the Senate's deliberations on the bill. In that respect, the two leaders--Senator Frist and Senator Reid--are to be greatly commended. Either one could have refused to enter into such an agreement--which would have made the prospects for passage of this legislation far less certain. As I said yesterday, a determined minority of even one Senator can impede or block consideration of legislation in this body. Either Leader, by declining to enter into a consent agreement, could have paved the way for others to employ dilatory, delaying, and distracting tactics. However, both Senators Reid and Frist agreed that only relevant amendments to the bill would be in order. No doubt, that agreement displeased some members in both caucuses. However, it helped ensure that the debate we have had on this bill has been substantive, orderly, and deliberate. And it minimized the risk that this bill would be derailed by contentious issues wholly unrelated to the substance of the bill itself. So the cooperation shown by the two leaders on this legislation cannot be overemphasized. Senator Reid is to be particularly commended in this regard, given that a majority of the members of his caucus do not appear to support the bill. The consent agreement that he entered into with the majority leader demonstrates his commitment to working in as cooperative a manner as possible for the good of the Senate. Allow me to spend a few moments talking about the substance of this legislation. We have heard a lot of characterizations over the past few days to describe the bill and the problems it seeks to correct. I am among those who believe that our class action system is in need of reform. There are clear abuses and shortcomings that have not served the interests of the parties or the interests of justice. And this bill takes a number of significant steps to remedy those abuses and shortcomings. To those who say that this legislation will have dire consequences on the quality of justice in our Nation, I must respectfully disagree. And I do so for a number of reasons. First, it is important to view this legislation in a larger perspective. According to one estimate, .92 percent of all cases filed in Federal courts over the past three decades have been class actions. This point deserves special emphasis: from 1972 to 2002, less than one percent of all cases filed in the Federal courts of our Nation have been class actions. Not all states compile similar data, so there are no comparable statistics for class actions as a percentage of all cases filed in State courts. However, there is every reason to believe that the percentage of class actions filed in state courts is at least as minuscule as the percentage filed in state courts. My point is simply this: that this legislation will affect only a very small percentage of all cases filed in our courts--less than 1 percent. Some would argue that if even one just case in America were denied by this bill, that would be an unit result, and merit the defeat of this bill. I am not unsympathetic to that argument. Indeed, I agree wholeheartedly with it. Our system of justice is premised on the belief that equal justice under law is the right of each and every citizen. Even one just cause unjustly denied offends our Nation's commitment to justice and fair play. Any legislation that would deny to even one citizen the right to equal justice deserves opposition, at least in this Senator's opinion. But this bill does not deny such a right. It does not even come close. It will not close the courthouse door on a single citizen. Moreover--unlike other legislation that has been considered by this body--it will not cap damages in a single case. It will not cap attorney's fees for a single class action lawyer. It will not extinguish or alter in any way a single pending class action. Nor does it impose more rigorous pleading requirements or evidentiary standards of proof in a single class action. In short, no citizen will in any way lose his or her right to go to court and seek the redress of grievances. My colleagues might ask: if this bill will not do any of these things, then what will it do? First and foremost, it will put an end to the kind of abusive forum- shopping that has grown in frequency and notoriety over the past few years. Opponents of this bill claim that, by in any way altering the procedural rules governing class actions, substantive rights will be denied. However, this argument is trumped by a little document called the U.S. Constitution. Article III of that document extends Federal jurisdiction to suits between ``citizens of different States.'' The purpose of extending this ``diversity jurisdiction'' to citizens is to prevent the citizens of one State from being discriminated against by the courts of another State. However, over the years, this purpose has been increasingly thwarted by clever pleading practices of enterprising class action attorneys. By adding a plaintiff or a defendant to a lawsuit solely based on their citizenship, they have been able to defeat efforts to move cases to Federal court--even cases involving multiple parties from multiple States. Likewise, by alleging an amount in controversy that does not trigger the $75,000 threshold, they have thwarted Federal jurisdiction--even in cases alleging millions if not billions of dollars in damages. In short, current pleading practice by the class action plaintiffs bar has very effectively denied Federal jurisdiction over cases that are predominantly interstate in nature. These are precisely the kinds of cases the Framers thought deserve to be heard in Federal courts. All that this legislation does in this respect is bring pleading practice more into line with constitutional requirements. Cases that are primarily intra- rather than interstate in nature may continue to be heard in State courts. But those that are clearly interstate in nature will now be more likely to be heard in Federal court, where they belong. The notion that cases will be ``dismissed'' as a result of this and other changes created by this legislation is, in my view, patently absurd. No provision of this legislation requires a single case to be dismissed. Plaintiffs' attorneys may end up spending more time in Federal court than State court. They may not be able to pick a class of plaintiffs that is as large as they can now, or that encompasses as many States. They may end up bringing cases in two or more courts that they might have preferred to bring in a single court. But they will not find their cases dismissed. As my friend and colleague from Utah, Senator Hatch, said earlier, good lawyers will find a way to do well under this bill. Good lawyers will do well in Federal courts, as they have done well in State courts. In that sense, then, this bill is exceedingly modest. We write our laws on paper. We do not etch them in stone. I am confident that the bill we have written here is a good one. I believe that, if and when it becomes law, it will withstand the test of time. Likewise, I am confident that if in the future any shortcomings emerge, we will have the good sense to fix them. By way of analogy, I remind our colleagues of another reform bill that was considered several years ago. The Senator from New Mexico, Senator Domenici, and I wrote a bill to address frivolous securities lawsuits directed primarily at high-tech companies. The bill was on the floor of the Senate for about 2 weeks, if I recall correctly. A number of amendments were offered. It ultimately became law, despite a Presidential veto. There were those who predicted dire consequences as a result of that bill's enactment. We were told that securities lawsuits would dry up, that harmed investors would have no recourse. Well, here we are, about 9 years after enactment of that law, and there has been no appreciable drop-off in investor lawsuits and recoveries. In fact, some of the most vehement opponents of that law in the trial bar continue to be some of the most successful under the law. In sum, we have written a good bill here. It deserves to become law. I hope that it will. I want to acknowledge those of our colleagues who are most responsible for bringing us to this point: Senators Frist and Reid, as I have already mentioned; as well as Senators Grassley, Kohl, Hatch, Feinstein, Carper, and others. I also want to acknowledge the hard work of their staff, who in some cases have worked on this legislation for a number of years. So, to briefly reiterate, I thank my leader, Senator Reid, and the majority leader, as well. We would not be in the position we are in, I have said on several occasions over the last 3 or 4 days, had the Democratic leader--particularly because the minority always has unique rights in this Senate to delay or stop legislation moving at all. Even though my colleague from Nevada has strong reservations, which I am sure he will express shortly, about the substance of this bill, as a result of his willingness to let a product move forward, we are here today about to adopt a piece of legislation. When I hear some of the comments being made about whether Democrats are willing to work on issues, even ones they disagree with, that is belied by the fact that the minority leader made it possible for us to be here to deal with all relevant, germane amendments on this bill. I thank the Senator from Nevada for his efforts in allowing that to go forward. There has been a lot of talk over the last several days. Classically, with a matter like this the opponents and proponents have a tendency to engage in, if I may say with all due respect, a little bit of hyperbole. But it's important to stick to the facts. And one important fact that should shape how we view this legislation is that less than 1 percent of all cases filed in the Federal courts since 1972 have been class action cases. I searched very tirelessly to find out the percentages in State courts. I could not come up with an exact number. I am told by those knowledgeable the number of class actions filed in State courts as a percentage of all State actions is not substantially different than the Federal courts, and is likely to be even smaller given the large number of State cases filed generally. What is beyond dispute is that a very small percentage of the cases filed in our court systems are class actions. Obviously, if anyone is denied access to the courts in this country because of things we do here, then, obviously, justice is denied to someone who cannot make that case. We have not done that. This system of class action is in need of reform. This is about money. Unfortunately, it is not about the money that legitimate plaintiffs get; it is about the money that is either saved by a defendant or made by the plaintiffs' bar. That is what this is about, and forum shopping around the country, finding the venue that gets you the best possible result for your particular point of view-- not exactly what the Founders had in mind when they drafted the diversity provisions of article III of the Federal Constitution. If you want to change the Constitution and say that no longer should diversity apply, then you may try to do that. If that is what opponents of this legislation believe, then they can try to amend the Constitution to in effect keep all these cases in State courts. But since the founding of this Republic, the diversity clause of article III of the Constitution has been very clear.

Mr. DODD. Mr. President, I thank my colleague. I will go quickly. The point is, this is about court reform more than tort reform. About fifteen months ago, as many of my colleagues recall, we worked out this bill. We struck an agreement, a good one. Unfortunately, the majority here, last year, decided not to bring this bill up. I believe they made a mistake in doing that. We could have wrapped this bill up in January of 2004 but did not do it. This agreement has been ready for the Senate's consideration for over a year. We have had good debate on some of these amendments, and we have drafted a pretty good bill. It is not written in marble; it is not written in granite; it is written on paper. And we think it is going to provide equal access to the courts. It is going to provide a fairness to plaintiffs and defendants, to see that they get a just decision regarding the matters that are brought before the courts. So to my colleagues who are strong opponents of all of this, believe me, this bill is a simple matter of court reform. It will help ensure that victims of wrongdoing get fair compensation and relief, rather than a raw deal that lines the pockets of those who either allegedly represent them or those who are on the defendant side who want to avoid some of the payments they would otherwise have to make. There are no caps in this bill. It does not impose any rigorous procedural requirements or evidentiary requirements of proof at all. In short, no citizen will in any way lose his or her right to go to court to seek redress for their grievances. You get anecdotal stories, hearing of one case or another. This bill is about court reform, getting a system right. It is long overdue. It does not mean that every tort reform measure that comes before us ought to be supported, but on this one, those of us who worked on this believe we have done a good job. We were asked to make four improvements in this bill. We made 12 of them over a year ago. I thank the Senator from Delaware, Mr. Carper, Senator Feinstein, Senator Schumer, Senator Landrieu, and other Members on the Democratic side who have worked on this issue to make this possible. Again, my thanks--and it should be noted--to the distinguished Senator from Nevada, Mr. Reid, and Senator Frist, who struck a procedural agreement so the Senate could consider this bill.

Mr. DODD

Mr. DODD. I am not going to go through each and every amendment, but the amendments offered by my friends, Senators Kennedy, Bingaman, and Feinstein, also make good points, but as the Senator from Delaware and others have pointed out there are substantial and substantive reasons why those amendments are even incorporated already under the legislation and thereby covered or that would undo what we have attempted to achieve in this legislation. I pointed out the other day that back in the fall of 2003--I believe in October--a group of us who objected to the cloture motion and provided the margin of difference that day from invoking cloture provided the necessary votes to secure passage of the then as written class action reform bill. I think we were right in doing so. That bill, I believe, was excessive. There was a real danger it would have undone a lot of good law in this country which made courts accessible to legitimate class action plaintiffs. We were asked, a small group of us who were willing to work on this issue, to try to come up with some compromises, and we did. We submitted a letter to the majority leader saying there were four items that we thought needed to be addressed in that bill. We then sat down and negotiated not only the 4 items but 8 items additional to the 4, so we came back with 12 improvements to that bill, far more than we were asked to do by those concerned with legislation. I am not suggesting that covered the universe. Obviously, other ideas occurred in the last year and several months since that was struck. I was disappointed we didn't bring up the reform bill in January of last year, as the leader announced we would do. We lost an entire year on this matter, where we could have had the same arrangement we agreed to over a year ago. Nonetheless, we are back here with that same agreement. Across the country, those who have had a chance to look at this legislation have spoken very extensively in favor of it. In fact, some 109 editorials across the Nation, from publications, daily publications literally across the Nation in virtually every jurisdiction of the country, have come out and strongly endorsed this compromise package. I have a list of the 109 editorial comments made in support of this legislation, from publications that have reputations of being center, right, and left. It transcends the traditional ideological differences one might find in our daily newspapers. It is instructive to those of us anxious to know what those editorials have to say about this bill. I ask unanimous consent that list be printed in the Record.

Mr. DODD. As a source of some parochial pride, I ask unanimous consent the entire editorial in the Hartford Courant of Hartford, CT, be printed in the Record supporting this legislation. It is entitled ``Reining In Class-Action Abuses.''

Mr. DODD. Mr. President, I begin by thanking the leadership. I thank Senator Reid of Nevada particularly because, as my colleagues know, the minority in this institution, even a minority of 1, can make life difficult for a majority even of 99. The Framers of the Constitution created an institution that would make sure that the rights of minorities would be protected in this body. Contrary to his own substantive feelings about the matter before us, the distinguished Democratic leader has made it possible, because of the unanimous consent agreement entered into with the distinguished majority leader, for this matter to proceed. I also thank Senator Frist, the majority leader, for working out that arrangement so that we can deal with the matter before us. As someone who a year and a half ago negotiated an agreement that was satisfactory to many, not to all, I am pleased that we are within a day or so of adopting this very important legislation. We would not be able to do that were it not for the leadership shown by the minority and the majority in allowing this amendment process to go forward. So I begin there. I commend my colleagues who have offered amendments. They have offered germane and relevant amendments to this bill that have at the very least some kernels of sound judgment and good ideas to them. I regretfully disagree with my colleagues substantively and have expressed that in the Record. I know my colleague from Delaware, Senator Carper, who has spent a lot of time on this legislation, has been more deeply involved in this question than almost anyone in this body and has listened very carefully to all of those who have argued their amendments and considered them thoroughly. So I thank them for offering these ideas. I do not suggest that I would necessarily be opposed to all of these amendments under different circumstances, although I think there are substantive arguments against them. I say to one of my dearest friends in this body--and I know we call each other good friends, but Russ Feingold is one of my best friends in the Senate, and it is a rarity when he and I are on different sides of an issue. I am not comfortable disagreeing with my friend from Wisconsin because I admire him so much, but there is a substantive disagreement over having mandatory time requirements. The Judicial Conference of the United States, in a letter dated February 7, addresses specifically this amendment and urges our colleagues not to impose a time certain. The Senator from Wisconsin makes a strong argument on having some predictability, and I agree with him about predictability for all involved, for defendants and plaintiffs, but there is a danger in making the predictability so certain that it makes it difficult for the judicial process to necessarily work in a fair and balanced way. Because there are so many extenuating circumstances which can complicate a given mandatory time requirement, it can actually work adversely to plaintiffs or defendants in the case, and I know my colleagues are aware of that. A sound case can be made for Senator Feingold's amendment. There was a sound argument on the other side as well as to why this can be dangerous. The Judicial Conference has come down rather strongly in a letter in opposition to a mandatory time requirement. Rather than go through and read this whole letter, I ask unanimous consent that the letter from the Judicial Conference dated February 7 be printed in the Record.

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

Mr. DODD. Let me say again to my colleagues here, many of whom I know have offered amendments that have not succeeded in the past, I know it can be disappointing to work on the amendment and not get the necessary votes. But let me remind my colleagues, those who believe--and that is most of us here--that clearly the class action situation in this country cries out for reform, that this bill is a court reform bill rather than a tort reform bill. No courts are closing their doors to class action plaintiffs at all. But the situation had gotten out of hand. I think most of us here agree with that. We have written an improved bill--from both a plaintiff's perspective as well as a defendant's perspective. We can have access to courts, get good judgments, and see to it that victimized plaintiffs will receive the compensation they deserve as a result of a class action decision in their favor. I suggest to those who would have liked to have us add additional amendments here that there was a very real danger indeed that had we not stuck with the agreement reached almost a year and a half ago, the original bill would have come back or a bill adopted in the other body would have been the vehicle chosen as the vehicle for class action reform. I believe that would have been a mistake. I know there are colleagues who are disappointed that some of us did not support them in their efforts. I state there are substantive reasons that we did not, but also there is the reason that had we done so, this matter would have been opened and the results would have been a bill that would have been dangerous. I would have opposed it, but I think the votes are here to carry it. It is always a tough call, and I am not going to suggest otherwise. Those are the kinds of decisions you have to make in a legislative body with 99 other colleagues, 435 in the other body, and a President. We are dealing with a legislative form of government. Unfortunately, as much as we would like to write our own bills and have everybody go along and agree with our ideas, that is not the way the process works. We think we have a substantially improved piece of legislation, one that I heartily endorse. We will discover in time if there are any shortcomings, but by and large I believe we have written a good bill. I mentioned in his absence my friendship with the Senator from Wisconsin, talking about his amendment. As I said earlier, there is more than just a kernel of truth in what he suggests. There is an argument on the other side that I know my colleague, as a very distinguished member of the bar, will appreciate. I will not be able to support his amendment, but nonetheless I appreciate the point he is making about certainty and predictability, which is not an irrelevant issue when it comes to our courts. For those reasons, I appreciate the fact that a majority of us here in a bipartisan way--not overwhelmingly bipartisan but a bipartisan fashion--have rejected the amendments offered by our colleagues today. My hope is that a similar result will occur with remaining amendments, that we can have final passage of this bill, that the leadership of the House will do what they said they were going to do, and that is to embrace this compromise package, and that we will be able to send this bill to the President for his signature and make a major step forward in reforming our courts so that class actions can proceed in the way the Framers intended in the Constitution, which is fair to plaintiffs and defendants alike. I yield the floor.

Mr. DODD

Mr. DODD. I will not go through and name each one of them. Some of them are rather arcane but nevertheless important provisions of this bill, the point being that we were prepared basically in the fall of 2003 to go forward. We were notified at that point that the first item of business in January of 2004, more than a year ago, would be the class action reform bill. Well, here we are in February of 2005 finally getting to this matter. There was a prepared bipartisan bill over a year ago on class action and we are now dealing with exactly the same bill. As the Senator from Kentucky pointed out, he would have preferred the House bill, the bill that was not approved when the cloture motion was held, and reluctantly is supporting this bill. There are those of us who could not have supported the House bill or the version that came up in the Senate earlier, but we have worked very hard to put this compromise together over a year ago. So we could have dealt with this a long time ago, but nonetheless we are here today and that is the good news. I am heartened that the other body has agreed to accept this version if it goes unamended over the next day or so during the debate and consideration of this legislation. I am hopeful that will be the case. Very briefly, I will go through what we have achieved. As I mentioned, following the vote Senator Frist asked myself and others, including my good friend from Delaware who is on the floor today, to enter into discussions with him and other Members to explore whether there might be some ways of building greater support for this bill. Senators Schumer and Landrieu joined in writing a letter to the majority leader, which I have put into the Record already, in which we laid out the four areas of our concerns. We subsequently entered into those negotiations among our four offices. Senators Grassley, Kohl, Hatch, and Carper played very important roles in that consideration. Those negotiations were very productive. We reached significant agreement not on the four original areas of concern but on eight others as well. That point deserves special emphasis. We went into the negotiations seeking improvement on four issues. We emerged with significant changes on 12 issues. The result is a bill that is now before this body. In my view, it is very fair and balanced, rather modest legislation that addresses a number of well documented shortcomings in our Nation's class action system. It shows what we can accomplish in the Senate when we work together in a bipartisan fashion. As with all good compromises, this bill is entirely satisfactory to no one and in some respects unsatisfactory to everyone. There are those who will say this bill does not go nearly far enough in rectifying the shortcomings of the class action system in our country. On the other hand, there are those who believe that the sky is falling, that the bill severely impairs the ability of people to gain access to our courts. In my judgment, claims of both sides are vastly overstated. One of the reasons why I believe this is so is that the people on both sides of the legislation, proponents and opponents alike, agree our compromise has made this bill better. It targets more precisely those problems in need of reform and addresses them in an appropriate and effective manner. We will no doubt discuss those problems in more detail in the coming hours, but allow me to briefly mention two of them. Perhaps the central problem addressed by the compromise is the forum shopping issue. Article III of the Federal Constitution sets forth the circumstances under which cases may be heard in Federal court. Article 2 of Article III extends Federal jurisdiction to suits ``between citizens of different States.'' These are known as diversity cases. The Framers had two separate but related reasons for allowing Federal courts to hear cases between citizens of different States. Very simply, one was to prevent the possibility that the courts of one State would discriminate against the citizens of another State. The second reason was to prevent the possibility that the courts of one State would discriminate against interstate business and thereby impede interstate commerce. Over the years, however, class action rules have been interpreted in such a way that plaintiffs' lawyers have been able to keep class actions out of Federal court, even those that are precisely the kind of cases for which diversity jurisdiction was created, because of their interstate character. They do this by adding named plaintiffs or defendants solely based on their State of citizenship in order to defeat the diversity requirement. Alternatively, they allege an amount in controversy that does not trigger the $75,000 threshold for removing cases to Federal court. The result is frequently an absurd one. A slip-and-fall case in which a plaintiff alleges, say, $76,000 in damages can end up in Federal court. At the same time, a case involving millions of plaintiffs from multiple States and billions of dollars in alleged damages is heard in State court, just because no plaintiff claims more than $75,000 in damages or because at least one defendant is from the same State of at least one plaintiff. Section four of the bill modifies these diversity rules to allow Federal courts to hear diversity cases that have a strong interstate character. In particular, it allows Federal jurisdiction if the amount in controversy alleged by all plaintiffs exceeds $5 million and if any member of the plaintiff class is a citizen of a different State than any defendant. At the same time, the bill creates careful exceptions that allow cases to remain in State courts where those cases are primarily intrastate actions that lack national implications. The legislation attempts to bring diversity rules more in line with the original purpose of Federal diversity jurisdiction. Cases that are interstate in nature because they involve citizens of multiple States and interstate commerce may be heard in Federal courts. Cases that are not interstate in nature remain in State courts. A second problem the compromise addresses is the so-called coupon settlements. As our colleagues may know, a growing number of class action cases involves these type of settlements. In a typical coupon settlement, class members receive only a promotional coupon to reduce the cost of a defendant's products while the lawyers for the class action receive a rather large fee that is disproportionate to any client benefit. For instance, in one case a soft drink company was sued for improperly adding sweeteners in apple juice. The company agreed to settle the case. The settlement required it to distribute to customers a 50-percent coupon off the purchase of apple juice. Meanwhile, class counsel received $1.5 million in cash. I have no problem with attorneys earning a fee for their services. In fact, the compromise bill places no caps at all on attorney fees, although there were those who wanted to do that. But what is particularly disturbing about these coupon settlements is class members typically redeem only a small portion of the coupons awarded. In fact, over the years only 10 or 20 percent of coupons were actually redeemed. Yet the attorneys are paid regardless of how many coupons are cashed in. In effect, there is a negative incentive for counsel for both plaintiffs and defendants to enter into such settlements. Counsel for the plaintiff is paid their fee regardless of the percentage of coupons redeemed. At the same time, counsel for the defendants know they are likely to pay in redeemed coupons only a fraction of what they would pay if they paid cash to settle a case. Meanwhile, the actual class members--the ones who have actually been aggrieved--receive a benefit of little or no value at all. Our compromise takes several steps to remove this negative incentive to enter into coupon settlements. Most importantly, it states that an attorney's fee incurred to obtain a coupon settlement can only be paid in proportion to the percentage of coupons actually redeemed. For example, if an attorney's fee for obtaining a coupon settlement is $5 million but only one-fifth of the coupons are actually redeemed, the attorney can only recover one-fifth of his or her fee--roughly $1 million. In addition, the bill requires that a judge may not approve a coupon settlement until he or she conducts a hearing to determine whether settlement terms are fair, reasonable, and adequate for class members. There are other provisions of the bill that are also important. In the interest of time--I see my colleague from Mississippi also wants to speak before our colleague from Illinois offers the first amendment--I will defer discussing them in detail at this hour. However, to reinforce my central argument that this is a reasonable, modest piece of legislation, it is worth mentioning what the bill does not do. First, it does not apply retroactively, despite those who wanted it to. A case filed before the date of enactment will be unaffected by any provision of this legislation. Second, this legislation does not distinguish in any way or alter a pending case. Third, it does not in any way alter substantive law or otherwise affect any individual's right to seek equitable and monetary relief. Fourth, in does not in any way limit damages, including punitive damages. Fifth, it does not cap attorney fees. These are all matters that some people wanted to include in the bill. And, it also does not impose more rigorous pleading requirements of evidentiary burdens of proof. As some of our colleagues have said, this legislation is actually more court reform than tort reform. Candidly, I think they are more right than wrong about that. This is more court reform than tort reform. It stands in very sharp contrast to some of the other legislation considered by the Senate in the last Congress. That includes the Energy bill, which extinguished pending and future suits against makers of MTBE, a highly toxic substance that pollutes ground water. It also includes legislation that shielded gunmakers and gun dealers from many types of lawsuits. Incredibly, we were about to adopt legislation that would completely exclude an entire industry even when there was complete negligence on their behalf of being sued. I suggested when we were about to adopt those bills that Members think about talking about tort reform. Those matters cause this Senator deep concern, despite the fact I represent the largest gun producers in the United States. I cannot imagine my insurance companies getting a deal as the gun manufacturers were about to get. Nonetheless, those bills died, as they should have, in my opinion. The legislation before the Senate today does not close the courthouse door to a single citizen in this country. Maybe that citizen will end up in Federal court rather than State court, but no citizen will lose the sacred right in America to seek redress or grievance in a court of law. When this compromise was written 15 months ago, it was said that it was critical that this bill be honored as the bill moves forward--both within and beyond the Senate. I continue to believe that to be the case. In the words of the Senator from Kentucky earlier today, as well as statements made by Speaker Hastert, this Member is assured that, in fact, the agreements will be kept. In fact, I had a conversation with the staff of Mr. Sensenbrenner, chairman of the House Judiciary Committee, who reinforced the notion that if we adopt this bill as it presently reads, then there will no changes in the House and they will accept the Senate language. That is good news for those of us who have worked on this compromise. Certainly, this is not a perfect bill. No bill is. We all know that, but I think it strikes a careful balance between remedying the shortcomings and retaining the strengths of current class action practice in this country. Obviously, the bill is not yet through the Senate. But the consent agreement entered into by the two leaders is an auspicious beginning to preserving the balance. Let me, once again, reiterate my thanks to Senator Reid of Nevada, the distinguished Democratic leader, and for Senator Frist entering into that agreement which allows us to have this debate, and for all relevant and germane amendments to be considered to this legislation. Certainly, that is the way it ought to be done. Moreover, I note that the leadership of the other body has indicated its willingness to respect the balance that this bill strikes, as well. That, too, is a positive development. I stand in strong support of this legislation. I think it is a good compromise. It is not a perfect one. I know my colleagues may offer some amendments that I might have been attracted to under different circumstances which I may support, but when you try to reach agreement here, it is not easy. And when you do, I think it is worthy of support, particularly when those agreements cover as much territory as we did during the compromise efforts 15 months ago. As I mentioned at the outset, there were four proposals with which we ended the negotiations. Those four proposals were adopted, and eight others were added during that negotiation. I commend again the leader. I commend Senators Specter and Leahy for their efforts, and I look forward to this bill passing the Senate and being adopted by the House and going to the President for his signature. I yield the floor.

Mr. DODD. Mr. President, I begin by thanking our colleague from Pennsylvania for his leadership on this issue as the new chairman of the Senate Judiciary Committee, and also to commend our colleague from Vermont, Senator Leahy, the ranking Democrat on the committee. Despite their differences on this legislation, we are debating this bill because the managers have gone through the committee process and have produced a product for the consideration of the full Senate. I am pleased this bill is finally before us once again. It has been a year and a half since we last considered this legislation. I also commend the two leaders, Senators Frist and Daschle, for working as early as the fall of 2003 to try and craft a compromise. Senator Reid of Nevada has picked up on this and I want to particularly commend Senator Reid. He has some strong reservations about this bill, as many of our colleagues do, but he has arranged, as the Democratic leader can, for this matter to come forward. Certainly all of my colleagues are fully aware that a determined minority can pretty much stop anything from happening, but the Senator from Nevada, despite his reservations about this legislation, has worked through the process with the distinguished majority leader. The chairman of the committee, the ranking member, and those who are interested in this bill are trying to move this matter forward. So I would not want to begin my comments without commending the leaders, but particularly the Democratic leader, my leader, for putting in the time and effort to see to it that this matter dealing with class action be a part of the Senate debate. The legislation has had a rather long and torturous history, going back a number of years. I am not going to recite at length that history. I will only note that several of our colleagues deserve to be acknowledged for their long and steady persistence in bringing the Senate to this point. Those Senators include Senator Grassley of Iowa, Senator Kohl of Wisconsin, Senator Hatch of Utah, and Senator Feinstein of California. They have worked on the Judiciary Committee, in a very strong bipartisan fashion, to try and bring this matter up. I also want to highlight and mention Senator Carper of Delaware who has been tireless in his support for this effort. Senator McConnell as well has worked on this issue. Senator Landrieu, and Senator Schumer, I should mention as well, as a member of the Judiciary Committee, have also been a part of an effort to try and come up with a bill that could enjoy broad-based support. I mentioned Senators Specter and Leahy at the outset of my remarks as the chairman and ranking member who also worked well together to bring us to this point. I want to point out to my colleagues, of course, as someone who was very much involved in the negotiations back in the fall of 2003, that when the cloture motion failed, as pointed out by the Senator from Kentucky, within a few moments of that vote this Senator rose and offered to the majority at that point a willingness to sit down that day in fact to try and work out differences that would allow for this bill to go forward. The distinguished majority leader accepted that offer and we immediately began a process to put this bill together. In fact, several of us sent a letter at that time to Senator Frist. The letter was sent by myself, Senator Landrieu, Senator Schumer, and Senator Bingaman, outlining four areas that we thought if we could be accommodated in these areas the bill could go forward in a bipartisan fashion. I ask unanimous consent that the letter dated November 14, 2003, from three of my colleagues and me to Senator Frist be printed in the Record.

Mr. DODD. As a result of that letter, we went through several days of negotiations on this bill. The four areas that we sought changes in the bill are the following: Removal of formula including the definition of mass torts; the so-called merry-go-round problem in the bill; coupon settlements; and fair compensation for named plaintiffs. Those are the four areas we identified in the November 14 letter. As a result of our negotiations, we came back with 12 improvements in this bill, agreed to by myself, Senators Frist, Grassley, Hatch, Kohl, Landrieu, and Schumer. I ask unanimous consent that the list of the 12 changes that was a result of that negotiation be printed in the Record.

Mr. DODD

Mr. DODD. Mr. President, I rise, late this morning, to speak on the nomination of Alberto Gonzales to serve as the Attorney General of the United States. I would, as an initial matter, note that I know one of our colleagues came to the floor yesterday and spoke some words in Spanish in support of this nomination. And as someone who speaks Spanish, I was urged by some of my colleagues to do the same. I would not want to complicate the life of our reporters here. It is hard enough to understand us in English from time to time, and doing so in Spanish might make things more difficult. I take great pride in the fact that I lived in a Spanish-speaking country as a Peace Corps volunteer, and that I have been a long-time member of the Senate subcommittee that concerns itself with Latin America. I understand this nomination is certainly a matter of ethnic pride to many. I understand that. But I would further suggest that to consider this nomination as only or even principally as a matter of ethnic pride does a disservice to the Latino, the Hispanic community. As far as I can tell, members of that community are no different than people throughout our great Nation. They want to know not only who you are and what you are, but also what you think and what you believe in. They want to know if a person nominated to be this Nation's chief law enforcement officer will uphold the rule of law. The outcome of this nomination at this hour is not in doubt. It appears quite likely, if not altogether certain, that Mr. Gonzales will be confirmed by the Senate of the United States as our country's next Attorney General. So what I am about to say is of little, if any, consequence to the ultimate outcome of this particular nomination. If, in fact, this nominee is confirmed, I hope what I have to say might have some impact on his thinking as he assumes this office. I have asked for time to participate in this debate because of the important questions that this nomination raises, for not only this body but for our Nation. I thank the two leaders for allotting time for a full debate on these questions. I am going to oppose this nomination. I say that with deep regret. Like all or nearly all of my colleagues, I had very high hopes for this nomination when it was first announced. When Mr. Gonzales was nominated for this position several weeks ago, I didn't know a single Member who expressed any intention to vote against this nominee. That is certainly the case for this Senator. However, I also said at the time that I would reserve an ultimate decision until after the nomination was considered by the Judiciary Committee and put before the full Senate. In the interim, the committee chairman and ranking member have done a tremendous job of holding a careful, thorough, and substantive set of hearings. They have given members of the committee every opportunity to ask questions of the nominee. Just as importantly, if not more, they have given every opportunity to the nominee to answer those questions fully. As many of my colleagues may know, particularly those with whom I have served over the past almost quarter of a century, I have long adhered to the practice of according Presidents great deference in their nominations of term-limited appointees. Those who campaign for and win the highest office in our land deserve to name their team to the President's Cabinet. Accordingly, my standard of review for nominations such as this is different than it is for lifetime appointments. There are two basic questions that must be answered. First, does the nominee have the personal qualities required to discharge the duties of the office to which he or she has been nominated? And secondly, has the nominee demonstrated an understanding of the duties that he or she will be required to discharge if confirmed? Based on that standard of review and only that standard, I have supported overwhelmingly a number of Cabinet appointees during the quarter of a century I have served in this body. That includes nominees of this President, including the current Attorney General, as many of my colleagues may recall 4 years ago. It also includes nominees proposed by Presidents and opposed by a majority of members of my own party, including, in at least one instance, a nominee opposed by a majority of the Senate. But I have, on rare occasions, less than five in my 24 years here, through all five Presidents during that time, opposed only a handful of Cabinet nominees, including nominees supported by the majority of Members of the Senate and a majority of members of my own party. There is no question that this nominee possesses a number of admirable personal qualities. He has demonstrated considerable intellectual ability. He is an experienced and accomplished attorney. He has by all indications been a responsible member of his profession. And he has demonstrated commitment to public service. Like our colleagues, I have been deeply impressed with his proud family history. But this nomination is not simply about Alberto Gonzales's impressive personal qualities. If it were, then he would be unanimously confirmed. What is at stake is whether he has demonstrated to the Senate that he will discharge the duties of the office to which he has been nominated, specifically whether he will enforce the Constitution and laws of the United States and uphold the values upon which those laws are based. Regrettably and disturbingly, in my view, Alberto Gonzales has fallen short of meeting this most basic and fundamental standard. Let me explain why I take this position for two reasons: One, because in a nation founded on the principle of human freedom and dignity, he has endorsed, unfortunately, the position that torture can be permissible. And two, in a nation dedicated to the proposition that all are equal and none is above the law, he has suggested that the President of the United States, acting as Commander in Chief, has the right to act in violation of the laws and treaties prohibiting torture and may authorize subordinates to do the same. I will address briefly each of these issues in turn. The issue of torture is relatively straightforward. Is it acceptable for the United States of America ever to effect or permit the torture or cruel, inhuman, degrading treatment of human beings? The Constitution clearly says no. The eighth amendment explicitly prohibits ``cruel and unusual punishments.'' The Geneva Conventions say no. They prohibit the torture and abuse of detainees and prisoners of war. The Universal Declaration of Human Rights says no. Article 5 states: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The International Convention Against Torture also says no to torture. This document, signed by President Reagan, supported by former President Bush, and approved by the Senate Foreign Relations Committee under Chairman Helms with a unanimous committee decision, says: No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture. Lastly, the Army Field Manual says no to torture as well. This manual contains the knowledge, insight, and wisdom gathered by American soldiers over decades of hard experience. It says: U.S. policy expressly prohibit[s] acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or to aid interrogation. So this document, relied on for decades by U.S. military personnel in the theater of war to protect their lives and to do their duty, expressly prohibits torture. Why? Because, to again quote from the Army Field Manual: The use of torture is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear. . . . It also may place U.S. and allied personnel in enemy hands at greater risk. From the very earliest days of our Republic, the right to be free from torture has been a fundamental value of our Nation. Other values and rights have evolved or been won by the deprived and dispossessed: the emancipation of slaves, civil and voting rights for racial and ethnic minorities, equal rights for women, the right of privacy, just to name a few. But the right to be free from torture or similar treatment has never been in doubt, has never been seriously debated in our Nation. It has always been considered intrinsic to a nation such as ours, founded, as it is, upon the belief that all people are endowed with certain inalienable rights. Yet, unfortunately, this nominee has in crucial aspects stood against the overwhelming and unequivocal weight of precedent and principle. He has instead stood on the side of policies that are in direct conflict with the laws, treaties, and military practices that have long guided our Nation and its citizenry. Moreover, the record strongly suggests that he, in fact, helped shape those policies to the great detriment of our Nation's moral standing in the world. Indeed, as the White House Counsel, he is one of the chief architects of those policies. Let me review the record. In January of 2002, Mr. Gonzales wrote a memorandum to the President of the United States regarding the applicability of the Geneva Conventions to the conflict in Afghanistan. He concedes in the memo that: Since the Geneva Conventions were concluded in 1949, the United States has never denied their applicability to either the United States or opposing forces engaged in armed conflict, despite several opportunities to do so. But then Mr. Gonzales argues that the war on terror presents a ``new paradigm [that] renders obsolete Geneva's strict limitations on questioning of enemy prisoners.'' He urged a blanket exclusion of the Afghanistan war from the Geneva Conventions. This position was strenuously opposed by Secretary of State Colin Powell. Powell pointed out: It will reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the rule of law for our troops, both in the specific conflict and in general. He goes on to say: It will [also] undermine public support among critical allies, making military cooperation far more difficult to sustain. Secretary Powell's legal adviser added that Mr. Gonzales's view that Geneva did not apply to Afghanistan was inconsistent with the plain language of the treaty, the unbroken practice of the United States over the previous half century, the practice of all other parties to the Conventions, and the terms of the U.N. Security Council resolution authorizing the intervention in Afghanistan. Ultimately, in February 2002, President Bush ordered that all detainees captured by U.S. forces be treated in ``a manner consistent with'' the Geneva Conventions. But it has been pointed out that the treatment of detainees at places such as Abu Ghraib and Guantanamo raised questions about whether this order was effective in actually according detainees the protections of the Geneva Conventions. What is most troubling to this Senator is that Mr. Gonzales argued for a view of the Geneva Conventions that was inconsistent with American law, American values, and America's self-interests. Nor was this an isolated event. This administration's policy on torture was largely established in August of 2002. At that time, a memorandum regarding standards of conduct of interrogations was prepared at Mr. Gonzales's request by the Justice Department Office of Legal Counsel. This memorandum was accepted by the administration as policy until December 2004, when it was repudiated, at least in part, by the Justice Department on the eve of Mr. Gonzales's nomination hearing. The memorandum is 50 pages long. I will not dwell on it. Others among our colleagues have already thoroughly discussed it. I will only touch on two aspects of it. One is its novel and absurdly narrow definition of torture. The only conduct it recognizes as torture is where the interrogator has the precise objective of inflicting ``physical pain . . . equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or death.'' Any other conduct implicitly would not, as defined by this document, constitute torture--and thus would be allowed. Mr. President, this is a truly stunning and offensive reading of the law, not to mention plain English. It twists and contorts the meaning of the word ``torture''--so much so that the word is drained of any meaning whatsoever. It would allow all manner of mistreatment, including the acts of brutality and degradation committed by Americans against Iraqis in places like Abu Ghraib prison. Incredibly, it would even excuse the beatings, rapes, burnings, and deprivations of food and water perpetrated at the behest of Saddam Hussein himself. A second aspect of this memorandum that deserves mention is its discussion of the powers of the President of the United States when acting as Commander in Chief. The memorandum says that the criminal prohibition against torture ``does not apply to the President's detention and interrogation of enemy combatants pursuant to its Commander in Chief authority.'' Under this reasoning, executive branch officials can escape prosecution for torture if ``they were carrying out the President's Commander in Chief powers.'' Here again, this legal reasoning is stunning in its implications. It suggests that an American acting on behalf of the United States of America can commit heinous acts of torture without the slightest fear of prosecution. All he or she needs to do to avoid sanction is to show that he or she was ``just following orders.'' Whether the law prohibits torture is of no consequence. The President and anyone acting under his authority are in effect above the law. This memorandum has been rightly condemned by legal experts. One is Harold Koh, a professor of law at Yale Law School. He served in the Reagan Justice Department and the Clinton State Department. In testimony before the Judiciary Committee last month, he called the August 2002 memorandum ``perhaps the most clearly erroneous legal opinion that I have ever read,'' and ``a stain upon our law and our national reputation.'' Yet while condemned as beyond the pale of American law and American values, these ideas were accepted and even embraced by the nominee to become the Attorney General of the United States of America. There is no evidence in the record that he even questioned them, much less disagreed with them. Apparently, he had them shared with the Department of Defense. At his confirmation hearing, Senator Leahy asked Mr. Gonzales whether he agreed with the memorandum's legal reasoning on the issue of torture. Mr. Gonzales replied, ``I don't have a disagreement with its conclusions.'' Our colleague, Senator Kohl from Wisconsin, asked if the nominee agreed with Attorney General Ashcroft's statement that he does not believe in torture because it doesn't produce anything of value. The nominee replied, ``I don't have a way of reaching a conclusion of that.'' Don't have a way of reaching a conclusion? Mr. President, that is an astounding admission for someone seeking to become the Nation's top law enforcement officer. If he cannot reach a conclusion about the illegality or immorality of torture, what can he reach a conclusion about? What other legal principles are open to similar legal evisceration and repeal? What does it say about our Nation's commitment to the rule of law that this nominee will not say torture is against the law? What does it say about our Nation's commitment to equal justice under the law that this nominee would have the President and his subordinates be above the law? How do we explain this to the citizenry of our Nation, to the citizenry of other nations, particularly our allies, and most especially to the citizens of tomorrow, our young people who will inherit this country as we leave it to them? Will we tell them that torture is wrong--unless the President orders it? Will we teach them that America stands for life, liberty, and the pursuit of happiness-- depending upon who you are? Almost 60 years ago, this very day, the first allied forces liberated the condemned people of Auschwitz. On that day, the full horror of the Nazi genocide was laid bare, and all doubt about it was laid to rest. Within weeks of that event, my father and a group of other attorneys in this country were on a plane to a place called Nuremberg, Germany. There, he, along with others from our allies, began what would perhaps be the most formative experience of my father's professional life at that time: serving as executive trial counsel at the trials of Nazi war criminals. At that time, there were loud calls against trying the Nazi leaders. Many called not for due process of law, but for summary executions. In fact, Winston Churchill, a person we revered, who had great values, strongly suggested that summary executions would be the way to deal with the people responsible for the incineration of 6 million Jews and 5 million other civilians, not to mention the millions of combatants who lost their lives as a result of Nazi terror. Yet the United States stood up for something different 60 years ago, in the summer of 1945 through the fall of 1946. As members of the allied powers, we insisted that the rule of law, rather than the rule of the mob, would rule. Even these most despicable and depraved human beings were given an opportunity to retain counsel and to testify in their own defense. We were different. It did not depend on who the enemy was. It depended on what we stood for. If we begin to tailor our values and principles based on who our adversaries are, what do these laws mean? What do these bedrock principles stand for, if we can tailor them based on who we look across a battle line at? You cannot do that if you believe in these principles. At that moment in history, the world learned something very important about the United States of America. It learned that this Nation would not tailor its eternal principles to the conflict of the moment. It learned that, as far as the United States of America is concerned, even the mightiest cannot escape the long arm of justice. And it learned that our Nation will recognize the words ``I was just following orders'' for what they really are--a cowardly excuse, which has no place in a nation of free men and women. Mr. President, as I said, the outcome of this nomination is in little doubt at this hour. I understand that. My argument is not going to persuade anybody to vote differently. I want to be on the record saying that there have been only a handful--two or three cases in 24 years-- where I have stood in the Chamber to oppose a Cabinet nominee. I supported and voted for the nominations of John Ashcroft and John Tower. My colleagues who served with me know that I generally believe that Presidents deserve to have their Cabinets--except in rare circumstances. While I admire the personal story of this nominee, when he walks away from these critical principles, I cannot in good conscience give my vote to him to be Attorney General of the United States--the chief law enforcer of our country--when I know how important the rule of law is to this country, its history, and our reputation. As I said earlier, the outcome of the nomination is not in doubt. I do not expect that the nominee in question is paying attention to these proceedings or what I have to say. But I hope Mr. Gonzales will pay heed to the lessons of history, if not to this Senator. In his second State of the Union Address, Abraham Lincoln said that in giving or denying freedom to slaves, ``We shall nobly save or meanly lose the last, best hope of earth.'' The issue then was how our Nation treats the enslaved. The issue today is, in some respects, no less profound: how our Nation treats its enemies and captives, including those in places such as Abu Ghraib prison and Guantanamo Bay. By treating them according to our standards, not theirs--our standards, not theirs--we feed the flame of liberty and justice that has rightly led our Nation on its journey over these past two and a quarter centuries. I strongly oppose this nomination, and I hope the President will come up with a better choice. I yield the floor.

Mr. DODD. Mr. President, as I understand it, there are several minutes left for the majority at this particular moment. I inquire if I could begin my remarks--I think it has been agreed that I will be the first speaker on the minority side--and reserve whatever time the majority has for some point later so they do not lose their time. I ask unanimous consent that be the order.

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

Mr. DODD

Mr. DODD. Mr. President, I am pleased to join with my colleagues Senator Kennedy, Senator Mikulski, Senator Murray, Senator Clinton, Senator Durbin, Senator Lautenberg, Senator Leahy, Senator Akaka, Senator Boxer, and Senator Corzine, to introduce the ``Family and Medical Leave Expansion Act.'' Today marks the 12th anniversary of the enactment of the Family and Medical Leave Act. This landmark legislation was nearly a decade in the making, but today, more than 50 million Americans have taken leave under FMLA. Despite the many Americans the Family and Medical Leave Act has helped, too many continue to be left behind. Too many continue to have to choose between job and family. The facts are clear: millions of Americans remain uncovered by the Family and Medical Leave Act. And too many who are eligible for the Family and Medical Leave Act cannot afford to take unpaid leave from work. The ``Family and Medical Leave Expansion Act'', which we are introducing today addresses both these problems. The ``Family and Medical Leave Expansion Act'' would expand the scope and coverage of FMLA. It would fund pilot programs at the state level to offer partial or full wage replacement programs to ensure that employees do not have to choose between job and family. Times have changed over the years. More and more mothers are working. While decades ago only a tiny fraction of mothers with infants under one year of age were working, in 2004 about 55 percent of mothers with infants were working. Even as employment rates within this group rises, family responsibilities remain constant, a reality that lies at the core of the FMLA. According to an employee survey by the Department of Labor, about one-fifth of U.S. workers have a need for some form of leave covered under the FMLA, and about 40 percent of all employees think they will need FMLA-covered leave within the next 5 years. According to a Department of Labor study in 2000, leave to care for one's own health or for the health of a seriously ill child, spouse or parent, together account for almost 80 percent of all FMLA leave. Approximately 52 percent of the leave taken is due to employees' own serious health problems, while 26 percent of the leave is taken by young parents caring for their children at birth or adoption. The FMLA requires that all public sector employers and private employers of 50 or more employees provide up to 12 weeks of unpaid leave for medical and family care reasons for eligible employees. About 77 percent of employees in the private and public sector currently work in FMLA-covered sites, although only 62 percent of employees are actually eligible for leave. However, only 11 percent of private sector work sites are covered under FMLA. Individuals working for smaller private employers deserve the same work protections afforded to other employees. As a step toward expanding protection to more hard-working Americans, this bill would extend FMLA coverage to all private sector worksites with 25 or more employees within a 75-mile radius. This would mean that an additional 13 million Americans would be eligible for leave under the Act--roughly 240,000 in my own State of Connecticut. Mothers and fathers, adult sons and daughters have the same family responsibilities and personal health problems, regardless of whether they work for the government, a large private enterprise, or a medium- sized private business. Expanding the FMLA to businesses with 25 or more employees is a crucial acknowledgment of this reality. The bill recognizes the enormous physical and emotional toll domestic violence takes on victims. The bill expands the scope of FMLA to include leave for individuals to care for themselves or to care for a daughter, son, or parent suffering from domestic violence. Expanding the scope and coverage of FMLA is a positive step for many Americans. But, alone, it is not enough. According to a Department of Labor study, 3.5 million covered Americans needed leave but--without wage replacement--could not afford to take leave. Over four-fifths of those who needed leave but did not take it said they could not afford unpaid leave. Others cut their leave short, with the average duration of FMLA leave being 10 days. Of those individuals taking leave under the Family and Medical Leave Act, nearly three-quarters had incomes above $30,000. While the financial sacrifice is often enormous, the need for leave can be even more so. Every year, many Americans bite the bullet and accept unpaid leave. As a result, nine percent of leave takers go on public assistance to cover their lost wages. Almost twelve percent of female leave takers use public assistance for this reason. These individuals are far from being unwilling to work. Instead, they are trying to balance work with family--often during a crisis, too often with inadequate means to get by. Other major industrialized nations have implemented policies far more family-friendly to promote early childhood development and family caregiving. At least 128 countries provide paid and job-protected maternity leave, with an average of sixteen weeks of basic paid leave. In 1992, before we enacted the Family and Medical Leave Act, the European Union mandated a paid fourteen-week maternity leave as a health and safety measure. Among the 29 Organization for Economic Cooperation and Development (OECD) countries, the average childbirth- related leave is 44 weeks, while the average duration of paid leave is 36 weeks. Compared to these other developed nations, the United States is far behind in efforts to promote stronger families and worker productivity. The ``Family and Medical Leave Expansion Act'' builds on current law to provide pilot programs for States and the federal government to provide for partial or full wage replacement for at least 6 weeks. At a minimum, this will ensure that parents can continue to make ends meet while taking family and medical leave. When we talk about a more compassionate America, nowhere is that more evident than in our caregiving leave policies. No one should have to choose between work and family. Women and men deserve to take leave when family or health conditions require it without fear of losing their job or livelihood. We must not simply pay lip service to family integrity and the promotion of a healthy workplace. We talk often of our need to strengthen family values. We cite studies about the importance of the first few months of a newborn's life. This bill offers more parents the opportunity to spend time with their families when their families most need them. I urge my colleagues to support the ``Family and Medical Leave Expansion Act'' to promote our family values and to ensure the welfare and health of hard-working Americans. I ask unanimous consent that a copy of a brief summary of the Family and Medical Leave Expansion Act be printed in the Record.

Mr. DODD. Mr. President, I rise and am joined by my colleagues Senators Mikulski, Jeffords, Murray, Lieberman, Sarbanes, Landrieu, Dayton, Levin, Lautenberg, Inouye, Corzine, Durbin and Akaka to introduce legislation to amend the Higher Education Act to improve access to higher education for low- and middle-income students by raising the authorized maximum Pell Grant to $11,600 within five years. This bill has the strong support of the Student Aid Alliance, whose 60 organizations represent students, colleges, parents, and others who care about higher education. Pell Grants were established in the early 1970s by our former colleague, I Claiborne Pell, of Rhode Island. They are the largest source of Federal grant aid for college students. For millions of low- and middle-income students they are the difference between attending or not attending college. But, unfortunately, they don't make as much of a difference as they used to. In 1975, the maximum appropriated Pell Grant covered all of the average student's tuition, fees, room, and board at community colleges. It covered about 80 percent of those costs at public universities and about 40 percent at private universities. In 2003, the average Pell Grant covered 32 percent of tuition, room and board at community colleges, 23 percent of the total charges at public universities, and 9 percent of total charges at private universities. That's not just a drop, it's a free-fall. For low- and middle-income families, the cost of college also has increased significantly as a percentage of income. College is getting farther and farther out of reach for an entire generation of students. As a result of all this, low- and middle-income students who want to attend college are forced to finance their education with an ever- increasing percentage of loans as opposed to grants. This increases the cost of attendance for these students even more, and in many cases, keeps them from going to college at all. For four years now, the Administration has not raised the maximum Pell Grant. On top of leaving millions of children behind by failing to meet the bipartisan promises of the No Child Left Behind Act, they have left even more children behind who work hard and do well in school and want to go on to college. If we're serious about leaving no child behind, if we're serious about having a society where equal opportunity for all is more than just rhetoric, then we need to reinvigorate the Pell program. It has been said that investing in a student's future is investing in our Nation's future. We can start investing in our Nation's future by supporting this bill to increase the maximum appropriated Pell Grant to $11,600. This bill won't bring the Pell Grant's purchasing power back to where it was in 1975, but it is a critical first step, and I intend to continue my efforts on this matter throughout this Congress. I hope that my colleagues will join me. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. DODD

Mr. DODD. Mr. President, I am pleased to join with my colleagues Senator Kennedy, Senator Mikulski, Senator Murray, Senator Clinton, Senator Durbin, Senator Lautenberg, Senator Leahy, Senator Akaka, Senator Boxer, and Senator Corzine, to introduce the ``Family and Medical Leave Expansion Act.'' Today marks the 12th anniversary of the enactment of the Family and Medical Leave Act. This landmark legislation was nearly a decade in the making, but today, more than 50 million Americans have taken leave under FMLA. Despite the many Americans the Family and Medical Leave Act has helped, too many continue to be left behind. Too many continue to have to choose between job and family. The facts are clear: millions of Americans remain uncovered by the Family and Medical Leave Act. And too many who are eligible for the Family and Medical Leave Act cannot afford to take unpaid leave from work. The ``Family and Medical Leave Expansion Act'', which we are introducing today addresses both these problems. The ``Family and Medical Leave Expansion Act'' would expand the scope and coverage of FMLA. It would fund pilot programs at the state level to offer partial or full wage replacement programs to ensure that employees do not have to choose between job and family. Times have changed over the years. More and more mothers are working. While decades ago only a tiny fraction of mothers with infants under one year of age were working, in 2004 about 55 percent of mothers with infants were working. Even as employment rates within this group rises, family responsibilities remain constant, a reality that lies at the core of the FMLA. According to an employee survey by the Department of Labor, about one-fifth of U.S. workers have a need for some form of leave covered under the FMLA, and about 40 percent of all employees think they will need FMLA-covered leave within the next 5 years. According to a Department of Labor study in 2000, leave to care for one's own health or for the health of a seriously ill child, spouse or parent, together account for almost 80 percent of all FMLA leave. Approximately 52 percent of the leave taken is due to employees' own serious health problems, while 26 percent of the leave is taken by young parents caring for their children at birth or adoption. The FMLA requires that all public sector employers and private employers of 50 or more employees provide up to 12 weeks of unpaid leave for medical and family care reasons for eligible employees. About 77 percent of employees in the private and public sector currently work in FMLA-covered sites, although only 62 percent of employees are actually eligible for leave. However, only 11 percent of private sector work sites are covered under FMLA. Individuals working for smaller private employers deserve the same work protections afforded to other employees. As a step toward expanding protection to more hard-working Americans, this bill would extend FMLA coverage to all private sector worksites with 25 or more employees within a 75-mile radius. This would mean that an additional 13 million Americans would be eligible for leave under the Act--roughly 240,000 in my own State of Connecticut. Mothers and fathers, adult sons and daughters have the same family responsibilities and personal health problems, regardless of whether they work for the government, a large private enterprise, or a medium- sized private business. Expanding the FMLA to businesses with 25 or more employees is a crucial acknowledgment of this reality. The bill recognizes the enormous physical and emotional toll domestic violence takes on victims. The bill expands the scope of FMLA to include leave for individuals to care for themselves or to care for a daughter, son, or parent suffering from domestic violence. Expanding the scope and coverage of FMLA is a positive step for many Americans. But, alone, it is not enough. According to a Department of Labor study, 3.5 million covered Americans needed leave but--without wage replacement--could not afford to take leave. Over four-fifths of those who needed leave but did not take it said they could not afford unpaid leave. Others cut their leave short, with the average duration of FMLA leave being 10 days. Of those individuals taking leave under the Family and Medical Leave Act, nearly three-quarters had incomes above $30,000. While the financial sacrifice is often enormous, the need for leave can be even more so. Every year, many Americans bite the bullet and accept unpaid leave. As a result, nine percent of leave takers go on public assistance to cover their lost wages. Almost twelve percent of female leave takers use public assistance for this reason. These individuals are far from being unwilling to work. Instead, they are trying to balance work with family--often during a crisis, too often with inadequate means to get by. Other major industrialized nations have implemented policies far more family-friendly to promote early childhood development and family caregiving. At least 128 countries provide paid and job-protected maternity leave, with an average of sixteen weeks of basic paid leave. In 1992, before we enacted the Family and Medical Leave Act, the European Union mandated a paid fourteen-week maternity leave as a health and safety measure. Among the 29 Organization for Economic Cooperation and Development (OECD) countries, the average childbirth- related leave is 44 weeks, while the average duration of paid leave is 36 weeks. Compared to these other developed nations, the United States is far behind in efforts to promote stronger families and worker productivity. The ``Family and Medical Leave Expansion Act'' builds on current law to provide pilot programs for States and the federal government to provide for partial or full wage replacement for at least 6 weeks. At a minimum, this will ensure that parents can continue to make ends meet while taking family and medical leave. When we talk about a more compassionate America, nowhere is that more evident than in our caregiving leave policies. No one should have to choose between work and family. Women and men deserve to take leave when family or health conditions require it without fear of losing their job or livelihood. We must not simply pay lip service to family integrity and the promotion of a healthy workplace. We talk often of our need to strengthen family values. We cite studies about the importance of the first few months of a newborn's life. This bill offers more parents the opportunity to spend time with their families when their families most need them. I urge my colleagues to support the ``Family and Medical Leave Expansion Act'' to promote our family values and to ensure the welfare and health of hard-working Americans. I ask unanimous consent that a copy of a brief summary of the Family and Medical Leave Expansion Act be printed in the Record.

Mr. DODD

Mr. DODD. Mr. President, I rise and am joined by my colleagues Senators Mikulski, Jeffords, Murray, Lieberman, Sarbanes, Landrieu, Dayton, Levin, Lautenberg, Inouye, Corzine, Durbin and Akaka to introduce legislation to amend the Higher Education Act to improve access to higher education for low- and middle-income students by raising the authorized maximum Pell Grant to $11,600 within five years. This bill has the strong support of the Student Aid Alliance, whose 60 organizations represent students, colleges, parents, and others who care about higher education. Pell Grants were established in the early 1970s by our former colleague, I Claiborne Pell, of Rhode Island. They are the largest source of Federal grant aid for college students. For millions of low- and middle-income students they are the difference between attending or not attending college. But, unfortunately, they don't make as much of a difference as they used to. In 1975, the maximum appropriated Pell Grant covered all of the average student's tuition, fees, room, and board at community colleges. It covered about 80 percent of those costs at public universities and about 40 percent at private universities. In 2003, the average Pell Grant covered 32 percent of tuition, room and board at community colleges, 23 percent of the total charges at public universities, and 9 percent of total charges at private universities. That's not just a drop, it's a free-fall. For low- and middle-income families, the cost of college also has increased significantly as a percentage of income. College is getting farther and farther out of reach for an entire generation of students. As a result of all this, low- and middle-income students who want to attend college are forced to finance their education with an ever- increasing percentage of loans as opposed to grants. This increases the cost of attendance for these students even more, and in many cases, keeps them from going to college at all. For four years now, the Administration has not raised the maximum Pell Grant. On top of leaving millions of children behind by failing to meet the bipartisan promises of the No Child Left Behind Act, they have left even more children behind who work hard and do well in school and want to go on to college. If we're serious about leaving no child behind, if we're serious about having a society where equal opportunity for all is more than just rhetoric, then we need to reinvigorate the Pell program. It has been said that investing in a student's future is investing in our Nation's future. We can start investing in our Nation's future by supporting this bill to increase the maximum appropriated Pell Grant to $11,600. This bill won't bring the Pell Grant's purchasing power back to where it was in 1975, but it is a critical first step, and I intend to continue my efforts on this matter throughout this Congress. I hope that my colleagues will join me. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. DODD

Mr. DODD. Mr. President, I am pleased today to join my colleague, Senator Mike DeWine, in introducing the Training and Research in Urology Act--the ``TRU'' Act. Each day, millions of American men, women and children suffer with urologic conditions--children suffering from urological abnormalities, women living with painful urologic illnesses, the elderly for whom urologic conditions can present a wide variety of very serious health problems. The silent struggle of patients with urologic diseases has gone on too long. The legislation we introduce today seeks to ease the burden of millions of Americans suffering from urologic illnesses. The amazing breakthroughs of the last decade in basic science have resulted in new treatments and even cures for some urologic conditions. Unfortunately, these exciting advancements often fail to reach many who suffer from urologic diseases. It is time to change the way we think and deal with urologic disease. The TRU Act will create a new urology-specific division at the National Institute of Diabetes & Digestive & Kidney Diseases, NIDDK. Senior urology leadership at NIDDK will assure that urology receives adequate attention and will allow science to drive the research agenda. Federal legislation is necessary because more than 20 years ago Congress established the current three divisions within NIDDK. Unlike the other institutes at NIH, the director does not have the authority to establish new divisions when warranted. Urologic discoveries have advanced the science over the past two decades and I believe a urology division at NIDDK will assure continued progress in urology research. I was surprised to learn that the most frequently occurring birth defects are related to urologic conditions. In fact, Spina Bifida alone affects approximately 4,000 newborns in the United States each year. The Spina Bifida Association of America informed me that those living ``with Spina Bifida often refer to the complications associated with neurogenic bowel and bladder as the most difficult for them both physically and socially. `` The TRU Act would also charge NIDDK with creating a national urologic research plan and create an additional 10 centers for the study of urologic diseases, as well as recruit and retain talented investigators through a loan repayment program. In Connecticut, as in many states, there is important urologic research being conducted currently. Researchers at Yale University have made great strides toward achieving treatments of benefit to all Americans. For example, Benign Prostatic Hyperplasia, BPH, commonly referred as an enlarged prostate, impacts more than 125,000 men in Connecticut and more than 50 percent of men 60 years of age and older. BPH is the second most common kidney or urologic condition requiring hospitalization and the fifth leading reason for physician visits. Yale University's Dr. Harris Foster, Jr. is studying the use of phytotherapy to relieve lower urinary tract symptoms, particularly BPH. The research supported by the TRU Act will support this and other important urologic research initiatives nationwide. The TRU Act is supported by the Spina Bifida Association of America and the Urology Section of the American Academy of Pediatrics, as well as the Coalition for Urologic Research and Education, CURE, a group representing hundreds of thousands of patients, researchers and healthcare providers, including the Men's Health Network and the Society for Women's Health Research. The TRU Act will lead urology research and training into the 21st century, and more important, it will lead to better the lives of millions of patients, young and old, struggling to live with urologic diseases. Therefore, I join my colleague in supporting this worthy measure and urge all of my colleagues to support this important legislation.

Mr. DODD

Mr. DODD. Mr. President, I am pleased today to join my colleague, Senator Mike DeWine, in introducing the Training and Research in Urology Act--the ``TRU'' Act. Each day, millions of American men, women and children suffer with urologic conditions--children suffering from urological abnormalities, women living with painful urologic illnesses, the elderly for whom urologic conditions can present a wide variety of very serious health problems. The silent struggle of patients with urologic diseases has gone on too long. The legislation we introduce today seeks to ease the burden of millions of Americans suffering from urologic illnesses. The amazing breakthroughs of the last decade in basic science have resulted in new treatments and even cures for some urologic conditions. Unfortunately, these exciting advancements often fail to reach many who suffer from urologic diseases. It is time to change the way we think and deal with urologic disease. The TRU Act will create a new urology-specific division at the National Institute of Diabetes & Digestive & Kidney Diseases, NIDDK. Senior urology leadership at NIDDK will assure that urology receives adequate attention and will allow science to drive the research agenda. Federal legislation is necessary because more than 20 years ago Congress established the current three divisions within NIDDK. Unlike the other institutes at NIH, the director does not have the authority to establish new divisions when warranted. Urologic discoveries have advanced the science over the past two decades and I believe a urology division at NIDDK will assure continued progress in urology research. I was surprised to learn that the most frequently occurring birth defects are related to urologic conditions. In fact, Spina Bifida alone affects approximately 4,000 newborns in the United States each year. The Spina Bifida Association of America informed me that those living ``with Spina Bifida often refer to the complications associated with neurogenic bowel and bladder as the most difficult for them both physically and socially. `` The TRU Act would also charge NIDDK with creating a national urologic research plan and create an additional 10 centers for the study of urologic diseases, as well as recruit and retain talented investigators through a loan repayment program. In Connecticut, as in many states, there is important urologic research being conducted currently. Researchers at Yale University have made great strides toward achieving treatments of benefit to all Americans. For example, Benign Prostatic Hyperplasia, BPH, commonly referred as an enlarged prostate, impacts more than 125,000 men in Connecticut and more than 50 percent of men 60 years of age and older. BPH is the second most common kidney or urologic condition requiring hospitalization and the fifth leading reason for physician visits. Yale University's Dr. Harris Foster, Jr. is studying the use of phytotherapy to relieve lower urinary tract symptoms, particularly BPH. The research supported by the TRU Act will support this and other important urologic research initiatives nationwide. The TRU Act is supported by the Spina Bifida Association of America and the Urology Section of the American Academy of Pediatrics, as well as the Coalition for Urologic Research and Education, CURE, a group representing hundreds of thousands of patients, researchers and healthcare providers, including the Men's Health Network and the Society for Women's Health Research. The TRU Act will lead urology research and training into the 21st century, and more important, it will lead to better the lives of millions of patients, young and old, struggling to live with urologic diseases. Therefore, I join my colleague in supporting this worthy measure and urge all of my colleagues to support this important legislation.

Mr. DODD

Mr. DODD. Mr. President, I rise today as the nomination of current Environmental Protection Agency, EPA, Administrator and former Utah Governor Michael Leavitt for the position of Secretary of Health and Human Services comes before the Senate. I plan to support this nominee as I did a little more than one year ago when Governor Leavitt's nomination to lead the EPA came before this body. I do so with the intention of working with him once he is confirmed as the administration's leading health care advocate to protect our Nation's vital health care infrastructure. Once confirmed as Secretary of Health and Human Services, Governor Leavitt will oversee the administration of the Department of Health and Human Services, HHS, the vast federal agency overseeing the Medicare and Medicaid programs, the National Institutes of Health, NIH, the Food and Drug Administration, FDA, the Centers for Disease Control and Prevention, CDC, the Health Resources and Services Administration, HRSA, and the Administration for Children and Families, which oversees child care, welfare and Head Start. HHS operates more than 300 critically important programs that represent almost a quarter of all federal outlays. In fact, the Medicare and Medicaid programs alone provide health insurance for one in four Americans. Current research tells us that well crafted, well researched, and comprehensive public health initiatives spearheaded by the office of the Secretary of Health and Human Services could lead millions of Americans to efficiently and successfully address health concerns before they become critical. However, just as important as the development of lifesaving preventive services is support for those programs already providing services to those already struggling with disease or impairment. In order to be successful in his new role as Secretary of Health and Human Services, Governor Leavitt will need to balance these sometimes competing needs so as to effectively lead our nation's federal health care systems into the 21st Century. Let me just take a moment to lay out several areas that I hope Governor Leavitt will make a priority as secretary. First, I think it is imperative that we take steps to ensure that the prescription drugs that are already on the market will not harm the millions of Americans that rely on them for their health and well-being. Serious questions have been raised about the ability of the Food and Drug Administration to ensure the safety of medicines. In the coming days, I will be introducing a bill to reform the FDA and give it the authority and resources to effectively monitor prescription drugs that are on the market, and take action if a safety issue is identified. I look forward to working with Governor Leavitt on this issue, and I hope that he will make it one of his top priorities. Of additional concern are possible efforts to modify our nation's Medicaid program, the federal and state health insurance program for those with low incomes. Currently this valuable program serves more than 50 million low-income children, pregnant women, elderly and disabled Americans, providing a vital safety net of health care services to these often vulnerable populations. I plan to work with the new Secretary to ensure that any modifications to this important program do not endanger its continued ability to provide for the health of its needy beneficiaries. I am also hopeful that Governor Leavitt will expand the work done by his predecessor to bring the health care system into the information age. Expanding the use of information technology, IT, in health care settings will save patients' lives and improve the quality of care. In addition, estimates suggest that investment in health IT is one of the most effective tools we have to control skyrocketing health care costs, making health care more affordable for all Americans. I urge Governor Leavitt to take a close look at an issue affecting the health of infants in this country. The Advisory Committee on Heritable Disorders and Genetic Diseases in Newborns and Children is close to issuing a report recommending a standard set of genetic disorders that all states should test for at birth. Newborn screening saves thousands of lives every year, but the current inconsistency in state testing policies means that too many children still suffer from disorders that are not detected until it's too late. I hope that Governor Leavitt will work with me to ensure that states can adopt the recommendations of the advisory committee, so no more infants fall through the gaps in newborn screening. Tragically, we know that each and every day in America 7,000 children under the age of sixteen have their first alcoholic drink. We also know that 4,500 children under the age of 21 will lose their lives due to the abuse of alcohol each year. At the same time, the social costs associated with underage drinking total close to $53 billion annually including $19 billion from automobile accidents and $29 billion from associated violent crime. In 2003, the Institute of Medicine released a study, ``Reducing Underage Drinking--A Collective Responsibility,'' that laid out the national problems presented by consumption of alcohol by youth and established a multi-tiered national strategy to reduce underage drinking's toll. Sadly, however, there has yet been little progress made in instituting this strategy. It is my desire to work with the new Secretary toward implementation of this important report's recommendations. I also look forward to working with Governor Leavitt to increase the availability of medical devices for children. Many essential medical devices used extensively by pediatricians are not designed and sized for children's special needs. Because the number of children needing a particular device is often quite small, there's simply little financial incentive for manufacturers to make pediatric appropriate devices. As a result, health care providers are forced to use adult devices ``off- label'' without a clear understanding of the risks involved or to use older, less optimal, or more invasive interventions. Pediatricians tell us that the development of cutting-edge medical devices suitable for children's smaller and growing bodies can lag 5 or 10 years behind those for adults. In my view, this is an issue that demands our attention. Lastly, if I could take a moment to talk about some of the issues related to poverty that this Congress will face and how important it will be that we are able to work with a Secretary of Health and Human Services who will be prepared to listen and to objectively assess options and, when appropriate, to help bring compromise toward a bipartisan solution. In the coming months, we will be working on legislation to further strengthen Head Start, to improve the quality of child care and to provide additional funding for child care in order to ensure that we do not pit the working poor against the welfare poor, legislation to reauthorize the Community Services Block Grant, CSBG, as well as the Low Income Home Energy Assistance Program, LIHEAP. I am interested in working with Mr. Leavitt to reach bipartisan support for these measures, which frankly should have bipartisan support. We should not be politicizing poverty. I am very concerned about the direction that the administration wants to take with regard to Head Start. I, too, believe there are further actions we can take to strengthen the literacy and cognitive development of Head Start children. But, Head Start is not just about literacy. It is about overall school readiness which includes the social, emotional, physical, and cognitive development of children, development of the ``whole'' child. The Head Start bill approved by the House last year and supported by the administration would repeal the Head Start performance standards--standards which help ensure the comprehensive quality of the program. I think that is a mistake. We can and should further strengthen the Head Start program and I look forward to working with Governor Leavitt to do so. But, if we are serious about strengthening Head Start, then we cannot repeal the performance standards which are the foundation for quality accountability. As I mentioned earlier, another issue I hope to work with Governor Leavitt on is child care. When Governor Leavitt appeared before the Committee on Health, Education, Labor and Pensions, we talked about the need to expand access to the children of working poor families, not just the welfare poor, and to improve the quality of care. Again, if we are serious about improving the school readiness of our Nation's youngest, then we need to ensure that the child care they receive is related to child development. Some 700,000 children are in state pre- kindergarten programs. Another 900,000 children are in Head Start programs. But, some 14 million children younger than six are in child care arrangements for many hours every day, every week. If we ignore the quality of care that these children receive, we are missing an opportunity to ensure that these children enter school ready to learn. It is these children, largely from working poor families, who aren't in Head Start, who aren't in a 2-3 hour day pre-kindergarten program because their parents work, who are most at-risk of being left behind. I am hopeful that we can work to achieve a bipartisan increase in child care funding to better address the needs of the working poor while improving the quality of care the children in these families receive. These issues of concern offer only a handful of the multitude of items facing the office of the Secretary of Health and Human Services. In his new role as Secretary of Health and Human Services, Governor Leavitt will have the opportunity to touch the lives of millions of Americans who often struggle to adequately address their health care needs. However, as we all know, with great opportunity also comes great responsibility. As we learned painfully with the bioterrorist attacks of 2001, we now face as a nation threats to our public health that we could never have imagined only a few short years ago. In this new era, it is critical that we are prepared to meet these new challenges head on. I look forward to working with Governor Leavitt in his new role and in the future to ensure that the public health infrastructure of the Unites States is prepared to adequately address these new threats. So it is with great optimism that I support this nomination. I can think of few more influential positions within federal service than the position of Secretary of Health and Human Services. This position brings with it a great opportunity to not only shape the way we as Americans learn about the importance of health but literally has the ability to save lives. I hope to be able to have the opportunity to work with Governor Leavitt in his new role as Secretary of Health and Human Services to enhance the health and well-being of all Americans.

Mr. DODD

Mr. DODD. Mr. President, I rise today to speak about the pending nomination of Condoleezza Rice to be Secretary of State. First, I start off by commending the distinguished chairman and ranking member of the Foreign Relations Committee, Senators Lugar and Biden, for their efforts to ensure that all members had the time to engage Dr. Rice and to express their thoughts on this very important nomination. I would also like to thank Dr. Rice for her willingness to devote as much time as necessary to answer our questions. Unlike many other confirmation hearings for Secretary of State, the nominee before us is well known to Congress and to the American people. She has a distinguished record as an academic and has served in many important positions as a public servant. Clearly, she has the requisite skills and experience for this post. Rightly, the focus of last Tuesday's and Wednesday's committee hearings concerned in great part her role as the President's National Security Advisor in the first term and her vision of what our foreign policy should be in the second term. It is no secret that many of us on the committee have had our differences with the Bush administration's foreign policy agenda during these past 4 years. Nonetheless, I had hoped that the hearings with Dr. Rice would demonstrate that she had grown somewhat intellectually and would be prepared be more analytical about the strengthens and weaknesses of U.S. policy over the past, 4 years. Sadly that has not been the case. Instead, I have come away with the impression that when it comes to our foreign policy agenda, it is likely that we can expect more of the same when it comes to policy priorities. As well, I have every reason to believe following these interactions that the lack of transparency and accountability which was the hallmark of this administration in the first term will continue into the foreseeable future. These flaws have led the United States to have a negative image both domestically and abroad. It now appears that little will change in that regard. For example, Dr. Rice's comments, or lack thereof, on the issue of torture were startling to this Senator, as I presume they were to many of my colleagues. I asked her a simple question, whether or not she felt that on the issue of certain interrogation techniques such as water boarding, forced nudity, and the use of stress positions are tantamount to torture. I asked her to consider this not in the context of whether or not members of al-Qaida are covered by the Geneva Conventions but as a human being reflecting on the actions of one person against another. My question was straightforward; however, Dr. Rice's answer was anything but. In fact, at no point did she provide a clear answer to the question I posed. Disturbingly, her lack of a clear answer implies that she neither defines these methods as torture nor opposes their use in the war on terror. International laws and treaties exist for the protection of all parties. They contribute to security and to a more humane world. Agreements such as the Geneva Convention project to the world the values we hold so dear in America, liberty, freedom, the rule of law. We are better intrinsically for abiding by them, and we are better off--Americans are safer--when we successfully protect the values they enshrine. After all, following World War II, our Nation insisted on trying Nazi war criminals, people who were guilty of the most heinous crimes ever committed against humanity. We insisted on this because we understood the importance of the rule of law, of being better than the enemy, and that this was the most effective way to spread our values, our common cause against tyranny. Of all the memories I hold dear, I am proud of none more than that of the role my father played as a prosecutor at those trials in Nuremburg. Dr. Rice chose not to answer my simple question. She had a chance to speak to the whole world yesterday and today to convey the message as to how she will address this issue. I think she is off to a poor start. And I would recommend, for the sake of our national security and American citizens globally that she should reflect upon this subject matter when she assumes her duties as Secretary of State. I am also troubled by her unwillingness to admit that there were any mistakes made by the Bush administration with respect to the preparation for the war and its aftermath. Even after all the deaths and instability that have plagued Iraq since the U.S. invasion of 2003, Dr. Rice does not appear to have any second thoughts about decisions taken with respect to Iraq. Surely, mistakes have been made. But Dr. Rice appears inclined to follow in the President's footsteps of not being willing to admit mistakes. She was reluctant to admit even the most glaring mistake, that Iraq did not possess WMD, even though that was the fundamental rationale behind the Bush administration's original drive to go to war. In addition, it was painfully obvious that Dr. Rice does not currently have much of a feel for policy in the Western Hemisphere. With respect to Venezuela, she seems determined to pursue the same path that has done nothing to further democracy, and which has instead made it easy for President Hugo Chavez to vilify the United States. With respect to Cuba, she seems stuck in a 40-year-old fixation on a 78- year-old man, a mode of thought that is outdated, counterintuitive, and ultimately has proven itself unsuccessful. Our inane policy toward that island nation is exemplified by the fact that it is the only country in the entire world to which the U.S. Government prevents its citizens from traveling. Americans can travel to Iran and North Korea, two nations that are unarguably more threatening, but not to Cuba. Yet, Dr. Rice seems intent on retaining these failed policies. I also took note of her refusal to provide a straight answer to questions she was asked regarding a recent article about U.S. plans for military action against Iran, which was written by the respected journalist Seymour Hersh and published in the most recent edition of the New Yorker magazine. Dr. Rice contended that the article was full of inaccuracies. However, the question put to her by Senator Kerry was quite specific, is the article's contention about U.S. plans with respect to Iran true or false. That is a simple question with a one word answer. If that particular part of the article is inaccurate, it would have been easy and painless to say so. Her lack of candor did not appear to have anything to do with the information being classified. Had that been the case, Dr. Rice could simply have responded that any information regarding the matter would have to be discussed in a classified briefing. But she did not. All of these issues I have discussed are troubling to say the least. They raise very serious concerns about the direction our foreign policy will take over the next 4 years. Nonetheless, I believe that except in extraordinary circumstances, the President has the right to choose his or her Secretary of State. Therefore it is with serious reservations that I voted to report this nomination favorably to the full Senate and will support her confirmation when the full Senate votes on this matter. However, I would offer some words of advice to Dr. Rice. First, that she reflect upon some of the issues and concerns raised during her confirmation hearings. And second, that she never forget as Secretary of State that she is not just the President's representative, she is the representative of the American people. She should never forget that.

Mr. DODD

Mr. DODD. Mr. President, I come to the floor today, along with my good friend Senator Mike DeWine, to introduce the Compassionate Care for Children Act of 2005. This important legislation is designed to greatly improve the quality of care provided to terminally ill children and their loved ones, as well as the training of those that provide for their medical care. The subject of childhood illness is a difficult one. However, for children facing a serious illness and their families, it is a subject that must be examined. Tragically, we know that close to 55,000 children under the age of 19 die each year. Some are lost to accidents. Many are lost suddenly to complications related to prematurity. However, many other children are diagnosed with life-threatening conditions and begin a battle that, tragically, many will eventually lose. For these children and their families, palliative care is often the only way to ease their great burden. Very broadly, palliative care seeks to prevent or relieve the physical and emotional distress produced by a life-threatening condition or its treatment, to help diagnosed children and their families live as normal a life as possible, and to provide accurate and timely information to ease decisionmaking. And while many view palliative care as necessary for only the terminally ill, any child with a serious illness and their family would benefit greatly from its broad scope of services. Sadly, determining how best to care for a child facing a life- threatening or terminal illness requires an expertise that too few healthcare professionals possess. Too often, healthcare professionals serving a child with a life-threatening condition are at a loss as to how best ease the child's pain, comfort the child's family and loved ones, and coordinate the range of services required. The legislation we introduce today would seek to close this knowledge gap by authorizing $35 million annually to provide for research and training related to childhood palliative care. Specifically, the legislation will authorize the Secretary of Health and Human Services to award grants to health care providers and health care institutions to expand pediatric palliative care programs, to research new initiatives in pediatric palliative care--such as issues related specifically to pain management for children--and to provide training to healthcare providers serving children requiring pediatric palliative care services. According to Children's Hospice International, close to one million children are seriously ill with a variety of progressive afflictions at any one time. Parents of these children face a multitude of heart- wrenching decisions related to the appropriate course of treatment for their children. Among the choices available to some parents is one that I believe no parent should ever be forced to make. Under current law, seriously ill children are not eligible to receive simultaneous curative and palliative care. Imagine forcing a parent to choose between seeking a cure for their seriously ill child or services designed to ease their child's burden. Again, no parent should ever be required to make this choice and under the legislation we introduce today, parents will no longer be forced to decide whether to forgo curative treatment options for their children in order to receive palliative care. In eliminating this unnecessary and cruel requirement, the Compassionate Care for Children Act establishes a demonstration program under Medicare that will encourage the development of more coordinated model systems of curative and palliative care. This legislation would also ensure that seriously ill children treated under the demonstration program would not be subject to the so- called 6-month rule, a regulation currently in place that requires a physician's determination that an ill child has a life expectancy of 6 months or less in order to receive hospice services. As we all know, children are not simply little adults. Children's bodies react differently than adults to the onset of disease and various treatment options, making this determination possibly dangerously inaccurate. Lastly, I thank the legislation's chief sponsors in the House of Representatives, Deborah Pryce and John Murtha. Representatives Pryce and Murtha have been tireless advocates on behalf of seriously ill children and their devotion to easing the struggle of these children and their families is truly admirable. I look forward to continuing working with my colleagues from the House to advance the Compassionate Care for Children Act in the 109th Congress. Mr. President, when Senator DeWine and I first introduced this legislation in the last Congress, we were joined by members of the National Childhood Cancer Foundation. Each year this valuable organization sponsors ``Conquer Kids Cancer Gold Ribbon Days,'' an event that brings cancer patients, families, care givers and researchers from across the Nation to the District to lobby the Congress for increased resources to battle childhood cancers. At this event we heard from dozens of children and families from across this Nation that have battled serious illness. It is because of struggles like theirs that we are here today at the outset of an effort to better serve seriously ill children and those who love and care for them. I know that I can say with confidence that we all wish for the day when no child fell ill to serious disease. Until that day comes, the Compassionate Care for Children Act offers children battling illness and their families the hope of eased pain, expertise in treatment, and informed decisions. They deserve no less. I urge all of my colleagues to support this important legislation.

Mr. DODD

Mr. DODD. Mr. President, I come to the floor today, along with my good friend Senator Mike DeWine, to introduce the Compassionate Care for Children Act of 2005. This important legislation is designed to greatly improve the quality of care provided to terminally ill children and their loved ones, as well as the training of those that provide for their medical care. The subject of childhood illness is a difficult one. However, for children facing a serious illness and their families, it is a subject that must be examined. Tragically, we know that close to 55,000 children under the age of 19 die each year. Some are lost to accidents. Many are lost suddenly to complications related to prematurity. However, many other children are diagnosed with life-threatening conditions and begin a battle that, tragically, many will eventually lose. For these children and their families, palliative care is often the only way to ease their great burden. Very broadly, palliative care seeks to prevent or relieve the physical and emotional distress produced by a life-threatening condition or its treatment, to help diagnosed children and their families live as normal a life as possible, and to provide accurate and timely information to ease decisionmaking. And while many view palliative care as necessary for only the terminally ill, any child with a serious illness and their family would benefit greatly from its broad scope of services. Sadly, determining how best to care for a child facing a life- threatening or terminal illness requires an expertise that too few healthcare professionals possess. Too often, healthcare professionals serving a child with a life-threatening condition are at a loss as to how best ease the child's pain, comfort the child's family and loved ones, and coordinate the range of services required. The legislation we introduce today would seek to close this knowledge gap by authorizing $35 million annually to provide for research and training related to childhood palliative care. Specifically, the legislation will authorize the Secretary of Health and Human Services to award grants to health care providers and health care institutions to expand pediatric palliative care programs, to research new initiatives in pediatric palliative care--such as issues related specifically to pain management for children--and to provide training to healthcare providers serving children requiring pediatric palliative care services. According to Children's Hospice International, close to one million children are seriously ill with a variety of progressive afflictions at any one time. Parents of these children face a multitude of heart- wrenching decisions related to the appropriate course of treatment for their children. Among the choices available to some parents is one that I believe no parent should ever be forced to make. Under current law, seriously ill children are not eligible to receive simultaneous curative and palliative care. Imagine forcing a parent to choose between seeking a cure for their seriously ill child or services designed to ease their child's burden. Again, no parent should ever be required to make this choice and under the legislation we introduce today, parents will no longer be forced to decide whether to forgo curative treatment options for their children in order to receive palliative care. In eliminating this unnecessary and cruel requirement, the Compassionate Care for Children Act establishes a demonstration program under Medicare that will encourage the development of more coordinated model systems of curative and palliative care. This legislation would also ensure that seriously ill children treated under the demonstration program would not be subject to the so- called 6-month rule, a regulation currently in place that requires a physician's determination that an ill child has a life expectancy of 6 months or less in order to receive hospice services. As we all know, children are not simply little adults. Children's bodies react differently than adults to the onset of disease and various treatment options, making this determination possibly dangerously inaccurate. Lastly, I thank the legislation's chief sponsors in the House of Representatives, Deborah Pryce and John Murtha. Representatives Pryce and Murtha have been tireless advocates on behalf of seriously ill children and their devotion to easing the struggle of these children and their families is truly admirable. I look forward to continuing working with my colleagues from the House to advance the Compassionate Care for Children Act in the 109th Congress. Mr. President, when Senator DeWine and I first introduced this legislation in the last Congress, we were joined by members of the National Childhood Cancer Foundation. Each year this valuable organization sponsors ``Conquer Kids Cancer Gold Ribbon Days,'' an event that brings cancer patients, families, care givers and researchers from across the Nation to the District to lobby the Congress for increased resources to battle childhood cancers. At this event we heard from dozens of children and families from across this Nation that have battled serious illness. It is because of struggles like theirs that we are here today at the outset of an effort to better serve seriously ill children and those who love and care for them. I know that I can say with confidence that we all wish for the day when no child fell ill to serious disease. Until that day comes, the Compassionate Care for Children Act offers children battling illness and their families the hope of eased pain, expertise in treatment, and informed decisions. They deserve no less. I urge all of my colleagues to support this important legislation.

Mr. DODD

Mr. DODD. Mr. President, as we approach the historic elections in Iraq this week, it is important that we pause and take stock of our own elections process here in the United States. There is already much we can learn from the Iraqi experiment in democracy that can broaden and strengthen the participation of our own citizens in their democracy here in America. And in light of the continuing barriers that American citizens found at polling places across this Nation last November, we cannot rest on the laurels of past legislation. We must continue to strive to provide an equal opportunity for all citizens to participate in their democracy by voting and having their vote counted. For that reason, on Monday, I was pleased to introduce S. 17, the Voting Opportunity and Technology Enhancement Rights Act of 2005--the VOTER Act. I am grateful to the Democratic Leader, Harry Reid, for including this comprehensive initiative in his leadership package of Democratic legislative priorities for the 109th Congress. There is nothing more fundamental to the vitality and endurance of a democracy of the people, by people, and for the people, than the people's right to vote. In the words of Thomas Paine: The right of voting for representatives is the primary right by which other rights are protected. With regard to the Iraqi elections, President Bush has made his goal for this initial act of democracy clear: he wants as full participation in the vote as possible. In his words, he wants ``everybody to vote.'' While that is a laudable goal for a fledgling democracy, it should be the standard for a democracy that has existed for nearly two and one- quarter centuries. Regrettably, we have not yet reached that standard. In the 2000 presidential election, 51.2 percent of the eligible American electorate voted. And although in the 2004 presidential election voting participation reached its highest level since 1968, still, only 60.7 percent of the eligible Americans voted. While there are many reasons why ``everybody'' does not vote in America, we learned from the 2000 presidential elections that many citizens cannot vote and have their vote counted because they are improperly removed from registration rolls, do not have access to accessible voting systems and ballots, and lack confidence in antiquated and error-prone machines and State administrative procedures. In response to those concerns, Congress enacted overwhelmingly bipartisan legislation--the Help America Vote Act of 2002, or HAVA. For the first time in our history, that landmark legislation established the role of the Federal Government in administering and funding Federal elections. The twin goals of this act are to make it easier to vote and harder to defraud the system. On the day that the Senate adopted its version of HAVA, I noted that the Senate bill was a bipartisan compromise and the culmination of the hard work of a dedicated group of Senators, including my distinguished colleagues, Senator McConnell and Senator Bond, and others. But I also noted that the compromise was just that--it was not everything that all of us wanted, but it was something that everyone wanted. That was equally true of the final HAVA compromise on election reform. While many of the most important reforms in HAVA do not have to be implemented by the States until the 2006 Federal elections, the 2004 presidential election raised both continuing and new concerns. And the most important of these concerns are either not addressed by HAVA at all, or in some few instances, may actually be the result of HAVA. The fact that barely over one-half of the eligible voting age population voted in 2004 underscores the reality that not everybody votes in America. We must do better, and we can. At a time when our Nation and its leaders are building a new democracy in Iraq, we must not forget that building democracy begins at home. Just as eligible Iraqis, in this first post-Saddam election, are able to fully participate in democracy by voting from across the globe, so should eligible American voters be able to fully participate in democracy by voting from across the globe. Just as Iraqi voters will be able to vote prior to election day at early voting sites, so should American voters be able to participate in early voting. If Iraqis can register to vote on election day, then American voters should be able to register to vote on election day. Building democracy must begin at home. The legislation I introduced this week will provide American voters with many of the same rights and opportunities to participate in democracy that Iraqi voters have been given with the support of the blood, sweat and tears of American soldiers--and the resources of American taxpayers. The Voting Opportunity and Technology Enhancement Rights Act of 2005, or the VOTER Act, provides every eligible American, regardless of where they live in the world or where they find themselves on election day, the right to cast a National Federal Write-In Absentee Ballot in Federal elections. This new national absentee ballot extends to all citizens the same right to a Federal absentee ballot that overseas and active military voters currently have. Beginning with Federal elections in 2007, every State shall provide early voting opportunities for a minimum of 15 days prior to election day, including Saturdays. Beginning in 2007, any otherwise eligible voter must be allowed to register to vote on election day and have that vote counted in Federal elections. Additionally, the VOTER Act addresses many of the recurring, and new, barriers to voting that voters faced at the polls last November. It requires that a State count a provisional ballot for Federal office cast within the State by an otherwise eligible voter, notwithstanding the polling place in which the ballot is cast. HAVA established a uniform national right for every voter in a Federal election to receive and cast a provisional ballot. This new right was intended to ensure that no otherwise eligible voter could be turned away from the polls because of an administrative error, or other challenge. But in 2004, we saw this right eroded by States and applied in non-uniform ways. Some States, such as Ohio, initially interpreted HAVA to require that a voter be in their correct precinct in order to cast a Federal provisional ballot. Other States, such as Iowa, interpreted the same HAVA language to allow challenged voters to cast a provisional ballot in their county of residence. Whether or not the provisional ballot was ultimately counted turned solely on State law. The VOTER Act ensures that eligible voters who cast a provisional ballot for Federal office will have that ballot counted in a uniform manner. The VOTER Act requires that each State provide a minimum required number of voting systems and poll workers for each polling place on election day and during early voting, consistent with mandatory standards established by the Election Assistance Commission--EAC. On election day there was a recurring problem across the country of long lines and disenfranchised voters because of too few voting systems or ballots at polling places and too few poll workers to assist voters. This requirement becomes effective for Federal elections on or after January 1, 2007. To ensure that all voters have an equal opportunity to independently verify their ballot before it is cast and counted, the VOTER Act requires that by 2009, all States provide voters a voter-verified ballot with a choice of at least four formats for recording their verification: a paper record; an audio record; a pictorial record; and an electronic record or other means which is fully accessible to the disabled, including the blind and visually impaired. HAVA already requires that all voting systems provide the voter an opportunity to verify their ballot before it is cast and counted. HAVA also requires that all voting systems produce a permanent paper record for audit purposes. However, HAVA does not spell out how that verification is to be achieved to ensure security and independence of the voter's choice. Some have called on Congress to require a voter-verified paper ballot. Such is inherently discriminatory against the disabled, particularly the blind and visually-impaired. HAVA already requires that all voters, regardless of disability, be able to verify their ballots. With current and developing technology, it is simply unacceptable, and unnecessary, to discriminate against any voter by requiring that such verification be in paper form. For good reason, many in the disabled community believe that additional election reform legislation will deter State and local administrators from complying with the existing deadlines under HAVA. While they oppose any such efforts, to the extent that legislation is proposed regarding the voter verified ballot, they support this approach which assures full accessibility for all voters. While I had hoped that the EAC would have addressed this issue in the voluntary voting system standards required under HAVA to be issued last year, those standards have yet to be issued. I encourage the EAC to incorporate guidance for fully accessible voter verified ballots in the section 301 Voting System Standards to be issued this year. The VOTER Act also addresses the continuing problem of minority disenfranchisement through last-minute purges of voter registration lists by requiring States to provide public notice of any such purges not later than 45 days before a Federal election. To expedite the studies called for under HAVA for establishing election day as a Federal holiday, the VOTER Act requires the EAC to complete its study and issue recommendations within 6 months of enactment and earmarks funds within the EAC budget solely for this purpose. The VOTER Act includes amendments to HAVA that build on the existing voting system requirements to ensure that all voting systems, including punch cards and central count optical scan machines, provide voters with actual notice of over-votes. Also, beginning in 2009, States must allow for voter registration through the Internet. The VOTER Act also includes provisions to ensure both the security and uniform treatment of voter registration applications by requiring that all voters sign an affidavit attesting to both their citizenship and age, in lieu of the HAVA requirements for a check-off box alone, effective in 2007. HAVA requires that voter registration forms include questions regarding citizenship and age with check-off boxes that applicants use to indicate whether or not they meet eligibility requirements. States are further required to contact any applicant who does not fill in the boxes in order to complete the form. However, in the 2004 elections, States implemented this requirement in widely varying ways, resulting in non-uniform treatment of voters in Federal elections. In some cases, States refused to process the form and failed to contact the voter. In other States, voters who had submitted incomplete forms were asked to complete those forms at the polling place. While the twin purposes of HAVA were to make it easier to vote and harder to defraud the system, as implemented this requirement achieves neither purpose. This requirement further resulted in disenfranchising voters who failed to check a box but nonetheless signed an affidavit, under penalty of perjury, attesting to both their citizenship and age. With the implementation of statewide voter registration lists, the check-off box requirement is unnecessary and burdensome to both voters and election administrators. To ensure that the implementation of the voter identification requirements in HAVA do not make it harder to vote, the VOTER Act expands the forms of identification that can be used to establish identity for first-time voters who submit their voter registration by mail to include an affidavit executed by the voter attesting to his or her identity, generally subject to penalties for perjury under State law. The VOTER Act also responds to concerns first raised in the 2000 Presidential election in Florida, and echoed again in the 2004 election, regarding the appearance of impartiality by State election officials who were otherwise active in Federal campaigns. The bill imposes new accountability and transparency requirements on States, beginning in 2007, including a public notice requirement of any changes in State law affecting the administration of elections, such as changes in polling places and actions denying access to polling place observers. To ensure the independence of the Election Assistance Commission, and the timely issuance of guidance and standards, the bill provides the agency with independent budget authority and the authority to issue mandatory standards to implement the new requirements. Finally, in recognition of the inherent role of the States in the administration of Federal elections, the VOTER Act provides additional Federal funds for the State requirement grants under HAVA to implement the new requirements. While Congress accomplished much with the passage of the Help America Vote Act following the debacle of the 2000 Presidential election, 4 years later in the 2004 election, voters faced many of the same barriers to voting that HAVA promised to remove. As Iraqis go to the polls this week, let us assure our own citizens that we have done all we can to ensure that every eligible American voter has an equal opportunity to cast a vote and have that vote counted in Federal elections. I ask unanimous consent that a brief section-by-section analysis be printed in the Record following my remarks.