Pete Domenici

Mr. DOMENICI

Mr. DOMENICI. The Senator from New Mexico has the floor. I did not ask him to give me the floor. I got the floor.

Mr. DOMENICI. I do not care if I have the floor or not. You can have the floor.

Mr. DOMENICI. Senator, I want to tell you one more time, I cannot share--Mr. President, I ask if he would yield for a moment without losing his right to the floor.

Mr. DOMENICI. Mr. President, I move to table amendment No. 781 and ask for the yeas and nays.

Mr. DOMENICI. Mr. President, I say to my friend from New York, maybe on this one we disagree, but we have another big issue that we agree on. We are going to do something about the art community in your State and collectible items.

Mr. DOMENICI

Mr. DOMENICI. Mr. President, I ask unanimous consent that there now be a period of morning business with Senators permitted to speak therein for up to 10 minutes each.

Mr. DOMENICI

Mr. DOMENICI. Mr. President, I heard the remarks of the distinguished Senator from Nebraska. I don't have time tonight to make my comments about the distinguished Senator, Governor Exon, but tomorrow I will. Suffice it to say, it was my privilege to serve with him. He was everything the Senator from Nebraska said and more. Tomorrow I will elaborate on my years of service on various committees. He truly was a wonderful man, a hard worker, a man of great common sense, and he contributed immensely to the years I knew him in the Senate.

Mr. DOMENICI

Mr. DOMENICI. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on June 14, 2005, at 2 p.m., to conduct a hearing on ``The Role of the Financial Markets in Social Security Reform.''

Mr. DOMENICI. Mr. President, I ask unanimous consent that the Committee on Agriculture, Nutrition, and Forestry be authorized to conduct a hearing during the session of the Senate on Tuesday, June 14, 2005 at 2 p.m. in SR-328A. The purpose of this hearing will be to review the benefits and future developments in agriculture and food biotechnology.

Mr. DOMENICI. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, June 14, 2005, at 9:30 a.m., to hold a hearing on North Korea.

Mr. DOMENICI. Mr. President, I ask unanimous consent that the Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia be authorized to meet on Tuesday, June 14, at 10 a.m., for a hearing entitled, ``Finding and Fighting Fakes: Reviewing the Strategy Targeting Organized Piracy.''

Mr. DOMENICI. Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet in open executive session during the session on Tuesday, June 14, at 10 a.m., to review and make recommendations on proposed legislation implementing the U.S.-Central America-Dominican Republic Free Trade Agreement.

Mr. DOMENICI

Mr. DOMENICI. Mr. President, at the time Senate Report No. 109-78 was filed, the Congressional Budget Office report was not available. I ask unanimous consent that the report, which is now available, be printed in the Congressional Record for the information of the Senate.

Mr. DOMENICI

Mr. DOMENICI. Mr. President, I support this important resolution designating June 5 through June 11 as National Hispanic Media Week. For nearly four centuries, Hispanic publishers, writers, and editors have made immeasurable contributions towards our national commitment to promote free speech and the free exchange of ideas. This group of hard working Americans has dedicated themselves to better informing our communities on the great political, economic, and social issues of the day. Hispanic publications serve a population of over 20 million people meaning that one in every eight Americans receives at least part of their news from a Hispanic media outlet The designation of a week to honor the Hispanic media of America will help affirm the importance of freedom of speech, civic engagement, and further development of the Hispanic media. This recognition of the Hispanic media will serve as a reminder of the valuable contributions made by Hispanic publishers, journalists and editors. This resolution is important across the country, but I can personally speak to its importance in my home State of New Mexico. Forty-two percent of New Mexico's population is Hispanic. I know that many of those individuals rely on Hispanic media for news and entertainment. They tap into such New Mexico outlets as El Hispano newspaper, radio stations like KDCE in Espanola and KLVO in Albuquerque, Spanish- language television stations like KLUZ, and magazines like La Herencia. I am proud to be apart of honoring a group that is so important to so many people in my home State. This resolution calls on the American people to join with all children, families, organizations, communities, churches, cities, and States across the Nation to observe the week with appropriate ceremonies and activities. I strongly urge my colleagues to join us in promptly passing this resolution designating June 5 through June 11 as National Hispanic Media Week.

Mr. DOMENICI

Mr. DOMENICI. Mr. President, I rise today to introduce again legislation to eliminate one of the great inconsistencies in the Internal Revenue Code. The bill I am introducing today with Senator Schumer is designed to restore some internal consistency to the tax code as it applies to art and artists. No one has ever said that the tax code is fair even though it has always been a theoretical objective of the code to treat similar taxpayers similarly. The bill I am introducing today would address two areas where similarly situated taxpayers are not treated the same. Internal inconsistency number one deals with the long-term capital gains tax treatment of investments in art and collectibles. If a person invests in stocks or bonds and sells at a gain, the tax treatment is long term capital gains. The top capital gains tax rate is 15 percent. However, if the same person invests in art or collectibles the top rate is hiked up to 28 percent. Art for art's sake should not incur a higher tax rate simply for revenue's sake. That is a big impact on the pocketbook of the beholder. Art and collectibles are alternatives to financial instruments as an investment choice. To create a tax disadvantage with respect to one investment compared to another creates an artificial market and may lead to poor investment allocations. It also adversely impacts those who make their livelihood in the cultural sectors of the economy. Santa Fe, NM, is the third largest art market in the country. We have a diverse colony of artists, collectors and gallery owners. We have fabulous Native American rug weavers, potters and carvers. Creative giants like Georgia O'Keeffe, Maria Martinez, E. L. Blumenshein, Allan Houser, R.C. Gorman, and Glenna Goodacre have all chosen New Mexico as their home and as their artistic subject. John Nieto, Wilson Hurley, Clark Hulings, Veryl Goodnight, Bill Acheff, Susan Rothenberg, Bruce Nauman, Agnes Martin, Doug Hyde, Margaret Nez, and Dan Ostermiller are additional examples of living artists creating art in New Mexico. Art, antiques, and collectibles are a $12 to $20 billion annual industry nationwide. In New Mexico, it has been estimated that art and collectible sales range between $500 million and one billion a year. Economists have always been interested in the economics of the arts. Adam Smith is a well-known economist. He was also a serious, but little-known essayist on painting, dancing, and poetry. Similarly, Keynes was both a famous economist and a passionate devotee of painting. However, even artistically inclined economists have found it difficult to define art within the context of economic theory. When asked to define jazz, Louis Armstrong replied: ``If you gotta ask, you ain't never going to know.'' A similar conundrum has challenged Galbraith and other economists who have grappled with the definitional issues associated with bringing art within the economic calculus. Original art objects are, as a commodity group, characterized by a set of attributes: every unit of output is differentiated from every other unit of output; art works can be copied but not reproduced; and the cultural capital of the nation has significant elements of public good. Because art works can be resold, and their prices may rise over time, they have the characteristics of financial assets, and as such may be sought as a hedge against inflation, as a store of wealth, or as a source of speculative capital gain. A study by Keishiro Matsumoto, Samuel Andoh and James P. Hoban, Jr. assessed the risk-adjusted rates of return on art sold at Sotheby's during the 14-year period ending September 30, 1989. They concluded that art was a good investment in terms of average real rates of return. Several studies found that rates of return from the price appreciation on paintings, comic books, collectibles and modern prints usually made them very attractive long- term investments. Also, when William Goetzmann was at the Columbia Business School, he constructed an art index and concluded that painting price movements and stock market fluctuations are correlated. I conclude that with art, as well as stocks, past performance is no guarantee of future returns, but the gains should be taxed the same. In 1990, the editor of Art and Auction asked the question: ``Is there an `efficient' art market?'' A well-known art dealer answered ``Definitely not. That's one of the things that makes the market so interesting.'' For everyone who has been watching world financial markets lately, the art market may be a welcome distraction. Why do people invest in art and collectibles? Art and collectibles are something you can appreciate even if the investment doesn't appreciate. Art is less volatile. If buoyant and not so buoyant bond prices drive you berserk and spiraling stock prices scare you, art may be the appropriate investment for you. Because art and collectibles are investments, the long-term capital gains tax treatment should be the same as for stocks and bonds. This bill would accomplish that. Artists will benefit. Gallery owners will benefit. Collectors will benefit. And museums benefit from collectors. About 90 percent of what winds up in museums like New York's Metropolitan Museum of Art comes from collectors. Collecting isn't just for the hoity toity. It seems that everyone collects something. Some collections are better investments than others. Some collections are just bizarre. The Internet makes collecting big business, and flea market fanatics are avid collectors. In fact, people collect the darndest things. Books, duck decoys, chia pets, snowglobes, thimbles, handcuffs, spectacles, baseball cards, and guns are a few such ``collectibles.'' For most of these collections, capital gains isn't really an issue, but you never know. You may find that your collecting passion has created a tax predicament to phrase it politely. Art and collectibles are tangible assets. When you sell them, capital gains tax is due on any appreciation over your purchase price. The bill provides capital gains tax parity because it lowers the top capital gains rate from 28 percent to 15 percent. Internal inconsistency number two deals with the charitable deduction for artists donating their work to a museum or other charitable cause. When someone is asked to make a charitable contribution to a museum or to a fund raising auction, it shouldn't matter whether that person is an artist or not. Under current law, however, it makes a big difference. As the law stands now, an artist/creator can only take a deduction equal to the cost of the art supplies. The bill I am introducing will allow a fair market deduction for the artist. It's important to note that this bill includes certain safeguards to keep the artist from ``painting himself a tax deduction.'' This bill applies to literary, musical, artistic, and scholarly compositions if the work was created at least 18 months before the donation was made, has been appraised, and is related to the purpose or function of the charitable organization receiving the donation. As with other charitable contributions, it is limited to 50 percent of adjusted gross income (AGI). If it is also a capital gain, there is a 30 percent of AGI limit. I believe these safeguards bring fairness back into the code and protect the Treasury against any potential abuse. I hope my colleagues will help me put this internal consistency into the Internal Revenue Code. I ask unanimous consent that and the text of the bill be printed in the Record.

Mr. DOMENICI

Mr. DOMENICI. Mr. President, I rise today to introduce again legislation to eliminate one of the great inconsistencies in the Internal Revenue Code. The bill I am introducing today with Senator Schumer is designed to restore some internal consistency to the tax code as it applies to art and artists. No one has ever said that the tax code is fair even though it has always been a theoretical objective of the code to treat similar taxpayers similarly. The bill I am introducing today would address two areas where similarly situated taxpayers are not treated the same. Internal inconsistency number one deals with the long-term capital gains tax treatment of investments in art and collectibles. If a person invests in stocks or bonds and sells at a gain, the tax treatment is long term capital gains. The top capital gains tax rate is 15 percent. However, if the same person invests in art or collectibles the top rate is hiked up to 28 percent. Art for art's sake should not incur a higher tax rate simply for revenue's sake. That is a big impact on the pocketbook of the beholder. Art and collectibles are alternatives to financial instruments as an investment choice. To create a tax disadvantage with respect to one investment compared to another creates an artificial market and may lead to poor investment allocations. It also adversely impacts those who make their livelihood in the cultural sectors of the economy. Santa Fe, NM, is the third largest art market in the country. We have a diverse colony of artists, collectors and gallery owners. We have fabulous Native American rug weavers, potters and carvers. Creative giants like Georgia O'Keeffe, Maria Martinez, E. L. Blumenshein, Allan Houser, R.C. Gorman, and Glenna Goodacre have all chosen New Mexico as their home and as their artistic subject. John Nieto, Wilson Hurley, Clark Hulings, Veryl Goodnight, Bill Acheff, Susan Rothenberg, Bruce Nauman, Agnes Martin, Doug Hyde, Margaret Nez, and Dan Ostermiller are additional examples of living artists creating art in New Mexico. Art, antiques, and collectibles are a $12 to $20 billion annual industry nationwide. In New Mexico, it has been estimated that art and collectible sales range between $500 million and one billion a year. Economists have always been interested in the economics of the arts. Adam Smith is a well-known economist. He was also a serious, but little-known essayist on painting, dancing, and poetry. Similarly, Keynes was both a famous economist and a passionate devotee of painting. However, even artistically inclined economists have found it difficult to define art within the context of economic theory. When asked to define jazz, Louis Armstrong replied: ``If you gotta ask, you ain't never going to know.'' A similar conundrum has challenged Galbraith and other economists who have grappled with the definitional issues associated with bringing art within the economic calculus. Original art objects are, as a commodity group, characterized by a set of attributes: every unit of output is differentiated from every other unit of output; art works can be copied but not reproduced; and the cultural capital of the nation has significant elements of public good. Because art works can be resold, and their prices may rise over time, they have the characteristics of financial assets, and as such may be sought as a hedge against inflation, as a store of wealth, or as a source of speculative capital gain. A study by Keishiro Matsumoto, Samuel Andoh and James P. Hoban, Jr. assessed the risk-adjusted rates of return on art sold at Sotheby's during the 14-year period ending September 30, 1989. They concluded that art was a good investment in terms of average real rates of return. Several studies found that rates of return from the price appreciation on paintings, comic books, collectibles and modern prints usually made them very attractive long- term investments. Also, when William Goetzmann was at the Columbia Business School, he constructed an art index and concluded that painting price movements and stock market fluctuations are correlated. I conclude that with art, as well as stocks, past performance is no guarantee of future returns, but the gains should be taxed the same. In 1990, the editor of Art and Auction asked the question: ``Is there an `efficient' art market?'' A well-known art dealer answered ``Definitely not. That's one of the things that makes the market so interesting.'' For everyone who has been watching world financial markets lately, the art market may be a welcome distraction. Why do people invest in art and collectibles? Art and collectibles are something you can appreciate even if the investment doesn't appreciate. Art is less volatile. If buoyant and not so buoyant bond prices drive you berserk and spiraling stock prices scare you, art may be the appropriate investment for you. Because art and collectibles are investments, the long-term capital gains tax treatment should be the same as for stocks and bonds. This bill would accomplish that. Artists will benefit. Gallery owners will benefit. Collectors will benefit. And museums benefit from collectors. About 90 percent of what winds up in museums like New York's Metropolitan Museum of Art comes from collectors. Collecting isn't just for the hoity toity. It seems that everyone collects something. Some collections are better investments than others. Some collections are just bizarre. The Internet makes collecting big business, and flea market fanatics are avid collectors. In fact, people collect the darndest things. Books, duck decoys, chia pets, snowglobes, thimbles, handcuffs, spectacles, baseball cards, and guns are a few such ``collectibles.'' For most of these collections, capital gains isn't really an issue, but you never know. You may find that your collecting passion has created a tax predicament to phrase it politely. Art and collectibles are tangible assets. When you sell them, capital gains tax is due on any appreciation over your purchase price. The bill provides capital gains tax parity because it lowers the top capital gains rate from 28 percent to 15 percent. Internal inconsistency number two deals with the charitable deduction for artists donating their work to a museum or other charitable cause. When someone is asked to make a charitable contribution to a museum or to a fund raising auction, it shouldn't matter whether that person is an artist or not. Under current law, however, it makes a big difference. As the law stands now, an artist/creator can only take a deduction equal to the cost of the art supplies. The bill I am introducing will allow a fair market deduction for the artist. It's important to note that this bill includes certain safeguards to keep the artist from ``painting himself a tax deduction.'' This bill applies to literary, musical, artistic, and scholarly compositions if the work was created at least 18 months before the donation was made, has been appraised, and is related to the purpose or function of the charitable organization receiving the donation. As with other charitable contributions, it is limited to 50 percent of adjusted gross income (AGI). If it is also a capital gain, there is a 30 percent of AGI limit. I believe these safeguards bring fairness back into the code and protect the Treasury against any potential abuse. I hope my colleagues will help me put this internal consistency into the Internal Revenue Code. I ask unanimous consent that and the text of the bill be printed in the Record.

Mr. DOMENICI

Mr. DOMENICI. Mr. President, I rise today to introduce legislation to protect the recent discovery of a natural wonder in my home State of New Mexico. That discovery is a passage within the Fort Stanton Cave that contains what can only be described as a magnificent white river of calcite. I am pleased to be joined in this effort by my colleague from New Mexico, Senator Bingaman. Many locals are familiar with the Fort Stanton Cave in Lincoln County, NM. Exploration of the cave network dates back to at least the 1850s, when troops stationed in the area began visiting the caverns. That exploration has continued into the 21st century, and in 2001 led to a unique discovery of a two-mile long continuous calcite formation by BLM volunteers. We have not found a formation of this size anywhere else in New Mexico or perhaps even in the United States. In addition to the beauty of this discovery, I am particularly excited about the scientific and educational opportunities associated with the find. This large, continuous stretch of calcite may yield valuable research opportunities relating to hydrology, geology, and microbiology. In fact, there may be no limits to what we can learn from this snow white cave passage. It is not often that we find something like the calcite formation recently discovered at Ft. Stanton. I believe this find is worthy of study and our most thoughtful management and conservation. My legislation does the following: 1. creates a Fort Stanton-Snowy River Cave Conservation Area to protect, secure and conserve the natural and unique features of the Snowy River Cave. 2. instructs the BLM to prepare a map and legal description of the Snowy River cave, and to develop a comprehensive, long-term management plan for the cave area. 3. authorizes the conservation of the unique features and environs in the cave for scientific, educational and other public uses deemed safe and appropriate under the management plan. 4. authorizes the BLM to work hand in hand with colleges, universities, scientific institutions, and researchers to further our understanding of the geologic, hydrologic, mineralogical, and biologic significance of Snowy River. 5. protects the caves from mineral and mining leasing operations; and 6. protects existing surface uses at Fort Stanton. New Mexico is home to many natural wonders, and I am proud to play a role in the protection of this newest unique discovery in my State. I hope my colleagues will join with me in approving the Fort Stanton- Snowy River National Cave Conservation Area Act. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. DOMENICI

Mr. DOMENICI. Mr. President, I rise today to introduce legislation to protect the recent discovery of a natural wonder in my home State of New Mexico. That discovery is a passage within the Fort Stanton Cave that contains what can only be described as a magnificent white river of calcite. I am pleased to be joined in this effort by my colleague from New Mexico, Senator Bingaman. Many locals are familiar with the Fort Stanton Cave in Lincoln County, NM. Exploration of the cave network dates back to at least the 1850s, when troops stationed in the area began visiting the caverns. That exploration has continued into the 21st century, and in 2001 led to a unique discovery of a two-mile long continuous calcite formation by BLM volunteers. We have not found a formation of this size anywhere else in New Mexico or perhaps even in the United States. In addition to the beauty of this discovery, I am particularly excited about the scientific and educational opportunities associated with the find. This large, continuous stretch of calcite may yield valuable research opportunities relating to hydrology, geology, and microbiology. In fact, there may be no limits to what we can learn from this snow white cave passage. It is not often that we find something like the calcite formation recently discovered at Ft. Stanton. I believe this find is worthy of study and our most thoughtful management and conservation. My legislation does the following: 1. creates a Fort Stanton-Snowy River Cave Conservation Area to protect, secure and conserve the natural and unique features of the Snowy River Cave. 2. instructs the BLM to prepare a map and legal description of the Snowy River cave, and to develop a comprehensive, long-term management plan for the cave area. 3. authorizes the conservation of the unique features and environs in the cave for scientific, educational and other public uses deemed safe and appropriate under the management plan. 4. authorizes the BLM to work hand in hand with colleges, universities, scientific institutions, and researchers to further our understanding of the geologic, hydrologic, mineralogical, and biologic significance of Snowy River. 5. protects the caves from mineral and mining leasing operations; and 6. protects existing surface uses at Fort Stanton. New Mexico is home to many natural wonders, and I am proud to play a role in the protection of this newest unique discovery in my State. I hope my colleagues will join with me in approving the Fort Stanton- Snowy River National Cave Conservation Area Act. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. DOMENICI

Mr. DOMENICI. Mr. President, I would like to recognize the outstanding men and women of the 49th Fighter Wing at Holloman Air Force Base in New Mexico. The 49th has received a deployment order to the Western Pacific region in support of our national defense objectives. Around 250 personnel from Holloman, along with approximately 15 F- 117A Nighthawks, are preparing to depart for the Republic of Korea. Their 4- month deployment is part of an ongoing measure to maintain a credible deterrent posture and presence in the region and demonstrates the continued U.S. commitment towards fulfilling security responsibilities throughout the Western Pacific. The F-117A, and the personnel that fly and maintain them, continue to be vital to our national security strategy. This is why I am so pleased the Senate Armed Services Committee included my bill to restrict retirement of any Nighthawks in fiscal year 2006 in the committee passed bill. We must maintain the ability to deliver precision munitions onto time sensitive, high value targets, wherever and whenever the need arises. And I am so proud of the men and women from New Mexico that take on this very dangerous but important mission in service to their country. They are all superstars that deserve the heartfelt appreciation of a grateful Nation.

Mr. DOMENICI

Mr. DOMENICI. Mr. President, I would like to pay tribute to those men and women of the U.S. armed services, who have given their lives to defend our Nation and the ideals it represents. Since the birth of our Nation 229 years ago, millions of Americans have answered the call to serve. They left behind the comfort of home, family and friends, to protect the American way of life and insure that our country would remain free and a land of opportunity for all. On this day I would like to remember those whom did not return. On this Memorial Day, I am put in mind of the 200th and 515th Costal Artillery units of the New Mexico National Guard, better known as the New Mexico Brigade. The New Mexico Brigade played a prominent and heroic role in the fierce fighting in the Philippines, during those first dark days of the Second World War. For 4 months the men of the 200th and 515th helped hold off the Japanese only to be defeated by disease, starvation and a lack of ammunition. Tragically the survivors of the Battle of Bataan from the New Mexico Brigade were subjected to the horrors and atrocities of the 65 mile ``Death March'' and to years of hardship and forced labor in Japanese prisoner of war camps. Sadly, of the 1800 men of the New Mexico Brigade more than 900 lost their lives in that far off place. This day belongs to them and all other Americans such as them. I believe it is especially important not to forget; the men and women of America's Armed Forces have given their lives not only in defense of our Nation, but to preserve the freedom of others around the globe. This is almost unquiet in human history, and no praise can be too great for those individuals. Today I would like to make special mention of those New Mexicans who have given their lives in Operation Iraq Freedom and the global war on terror. I ask that New Mexicans on Memorial Day think of them and their families and give thanks that we are blessed with such heroic men and women. We must never forget the sacrifices of our solders, sailors, airmen, and marines. I encourage New Mexican's and all Americans on Memorial Day to take a moment to remember and honor the brave men and women whom have fallen in our defense. At this moment in America's history, our men and women in uniform are again furthering the cause of freedom around the world and ensuring the safety of the United States of America. They serve with the same courage and commitment shown by Americans of generations past and they deserve our thoughts and prayers on this Memorial Day as well.

Mr. DOMENICI

Mr. DOMENICI. I move to lay that motion on the table. The motion to lay on the table was agreed to. Rail Crossing Safety Funding

Mr. DOMENICI. Mr. President, I rise today in support of the highway bill. I want to first applaud the bill manager, my good friend Senator Inhofe for all of his hard work on this important legislation. I also want to thank the ranking member of the EPW committee, Senator Jeffords, for his work on the bill. Mr. President, the highway bill is one of the most important pieces of legislation that the Senate undertakes. This bill makes it possible to construct and repair vital transportation arteries that crisscross this great Nation. As our country grows we must be conscious of our transportation needs. Accordingly, this bill increases funding for road construction that will substantially reduce traffic delays that plague the country. Additionally, this bill substantially increases transit funding further reducing congestion and pollution caused by over- populated highways. My home state of New Mexico is one of the most rural states in the country. However, our population is on the rise and it is vitally important to ensure New Mexicans have the transportation infrastructure they need to be competitive with the rest of the country. This bill will provide roughly $1.7 billion in funding for New Mexico specific projects. This bill also increases funding for the Indian roads program. I have advocated for increased Indian roads funding for a number of years and while this increase only begins to address the need, it will help immensely in addressing the economic development problems facing Indian Country. Once again, I would like to thank the chairman and ranking member of the EPW Committee and their staff for doing a great job in getting this bill completed.

Mr. DOMENICI

Mr. DOMENICI. Madam President and fellow Senators, I want to start by submitting a couple of editorials from papers in the State of New Mexico. First of all, I want to start with an editorial from a paper in New Mexico called the Santa Fe New Mexican. I do not want to editorialize too much about this paper, but I think it is fair to say this is not a conservative newspaper. I believe it is fair to say it is a pretty liberal paper. It is probably even more than mildly liberal, very liberal. But I was impressed by their grasp of this issue and a statement that was in their editorial. Madam President, I ask unanimous consent that these editorials be printed in the Record.

Mr. DOMENICI. Madam President, I want to read the operative paragraph from the Santa Fe New Mexican: With this spiteful behavior toward Bush appointees, the Dems aren't exactly gaining goodwill. If they find [these nominees] so repugnant, let 'em vote against [them]; at least they'll be putting their ideals--or their party colors--on display. But this is no Mr. Smith against some diabolical establishment; it's a bunch of sore losers making themselves even more so. . . . This is not Pete Domenici speaking. I am reading from this editorial: The last thing our justice system needs is an ongoing feud over appointments to district and appellate judgeships. Now, yesterday, or maybe a day before, the major paper in the State, the Albuquerque Journal, had an editorial with a very interesting title: ``Filibuster Puts Bar [B-A-R] Too High for Judges.'' It is a very interesting editorial, with a play on words: ``Bar'' meaning the bench; and ``Bar,'' with the idea that you have to have 60 votes, is disavowed by this editorial. There is some nice recognition and discussion about the fact that a number of the Senators on the other side who are talking about this issue as if there was a filibuster allowed for judges--which I do not believe there is--the editorial explains that a number of Democrats were for doing away with the filibuster in its entirety about 10 years ago. At a point, that was a very major discussion here, and it was principally motivated by the Democratic Party, to get rid of the filibuster in its entirety. The editorial says how interesting and paradoxical it is that some of those who did not, at the time, want the filibuster around at all are arguing about it existing for judges--this is not conclusive but is interesting. So I am here because I would like to make my case and explain to the Senate why this Senator from New Mexico thinks we should have an up-or- down vote on the circuit court judicial nominees of the President who are pending. First, I want to make the point that I am not trying to change anything. So when people say, Republican Senators want to change the filibuster rule, I am for changing nothing. What does that mean? That means I am for leaving the rule as it is. What does that mean? That means there is no filibuster rule relating to judges now. All the discussion about why should we change the rule is not the issue. The issue is, why are we denying circuit court judges an up-or-down vote--that is, majority rule--when that is what the precedent of the Senate has been for the last 200-plus years? For anybody who thinks the filibuster rule is absolutely inherent in anything the Senate does, that the rule came down from the Constitution to the Senate as: Thou shalt have a filibuster rule, that is not so. Look in the Constitution. There is no mention of filibusters. As a matter of fact, the document is filled with references to majority rule. And where the Constitution requires that we have more than a majority, it says so. So look to the Constitution to see if there are any times when our Founding Fathers said a two-thirds vote or more than a simple majority are necessary, and you will find there are few occasions and they are mentioned specifically. Therefore, I would assume the Constitution does not require super-majorities for judicial nominees. If we tried to say otherwise, I assume it would be thrown out in a minute. The question then is, what do we Republicans want? What do--maybe it won't all be Republicans in the end--we want now? We want judges who were nominated by this President for the circuit courts of appeal over a long period of time--and I will cite an example shortly--to have an up-or-down vote. I hope people understand, all these other questions that are asked of them, they beg the issue. The issue is, should a circuit court nominee who is otherwise qualified, meaning the American Bar Association and the people who work with them believe they are qualified, have a vote. That is the issue. I cannot believe the majority of Americans, given that set of facts, would say no, you need to get two-thirds of the vote under those circumstances. What are those circumstances? Those circumstances are that some in this body don't like the nominees. The Constitution didn't say this is an issue of whether you like the nominees. It said, you are voting advice and consent for the nominee. So the point is, you exercise your right by saying: I don't consent. In advising, I withhold my consent and say no. The Constitution doesn't say two-thirds of you must say you have advised and you consent. That is the issue. As I see it on television and read about it, we can see people arguing that we shouldn't change. The filibuster is part of the fiber of the Senate. We should not alter it. I have explained that it isn't part of the fiber of the Senate with regards to judicial nominees. As a matter of fact, even on other issues besides judges, it is not certain that it existed when we were founded. There is a long period of history when we are not even sure the filibuster existed. But I am not here saying the filibuster does not now exist. In fact, I am for the filibuster. I didn't vote in favor of getting rid of the filibuster. Half of my service in this body has been as a minority Senator. So I know what it is to be a minority Member who appreciates the filibuster. But I also don't like the filibuster sometimes. I get upset. I wonder why it holds up so much legislation. I might add parenthetically that I don't like the way the filibuster is used around here now because it is used all the time for anything. Thirty times a year we have to have cloture filed. We didn't do that for 25 of the 30 years I have been here. It was very rare. In its earliest vintage, it was on matters of monumental importance to Senators, regions, or to Americans. Now every time we have a bill, if a few people say, we don't want to let that pass, you have a filibuster. I am not for changing the filibuster because of irreverence toward the Senate's right to vote. I don't think I am voting to change it when I talk about judges, because you don't change if you are trying to say, do what we have been doing. I have tried my best to read, first, what is a filibuster. I have checked and I have read. I understand. How do you get rid of it? I checked and I understand how you get rid of a filibuster. But I have also tried to find out when are filibusters used, and I have found that in the Senate it is not generally used with reference to voting on a nominee for Federal judgeships in the United States. I am not in favor of our leadership pursuing a process that gives us an up-or-down vote, if that process gets rid of the filibuster for everything. I have already inquired. I am assured that is not the case. I have been assured we won't be voting on that. It will be only regarding judges. So have we in the past filibustered judges? By that I mean, had a judge come down to the floor out of committee ready to be voted on and have we killed that judge's chance by filibustering? No, no. Never, never. One case is cited, and it is Abe Fortas. Abe Fortas was a Lyndon Johnson appointee who was on the bench, already confirmed. The issue was, President Johnson wanted to put him in a vacancy that occurred for Chief Justice which you know we have to vote on. And the Senate got into a debate about whether he should get it, and there was great consternation on the floor of the Senate as to whether he should be confirmed for that. The truth is, he was not killed by filibuster. His name was voluntarily withdrawn. He later even left the Supreme Court. But the record is pretty certain that he was not killed by filibuster. That wasn't a judicial appointment, anyway. But even if you want to tie that in, that did not happen. What have Senators around here said about this? I understand each can come down here and put it in whatever context they would like. My good friend, Senator Kennedy from Massachusetts, said on February 3, 1998, page S295 of the Congressional Record: We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don't like them, vote against them. But give them a vote. That is not me. That is Senator Kennedy. Senator Leahy said, June 8, 1998, page S6521 of the Congressional Record: I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported . . . Interesting. I have seen the distinguished Senator from New York--I haven't heard him personally, but I have seen him and heard him on television with his right fist like this saying: We don't need any right wing judges or we don't need the right wing pushing us to appoint radical judges. I could as well put up my left hand, but I won't, and say we don't need anybody telling us to appoint liberal judges. But the distinguished Senator from New York said: This delay makes a mockery of the Constitution, makes a mockery of the fact that we are here working, and makes a mockery of the lives of very sincere people who have put themselves forward to be judges and then they hang out there in limbo. That is dated March 7, 2000, page S1211 of the Congressional Record. I also told you about the New Mexico editorials. So people will understand how gross this abuse of the filibuster is and how it is prompted by personal angst, not qualifications, I am going to refer to one judge as an example. Let's take the nominee Priscilla Owen, Fifth Circuit, and let's look at her in comparison with judges who are on that court who have come before the Senate. Let's look at the first one, Patrick Higginbotham, nominated by Ronald Reagan, graduate of the University of Alabama, University of Alabama Law School. How long did it take to get through here? Twenty-six days. Nominee Emilio Garza, President Bush appointee, University of Notre Dame, University of Texas Law School, judicial experience, Bexar County Texas District Court. I am sure controversial people had a thing to say, but I am also sure this and the previous nominee were recommended or were certified to be qualified by the American Bar which, incidentally, most of the time this Senator has been here, that was the sine qua non. If you didn't have that, you were in trouble. And if you had it, conversely, that was pretty good. You must be qualified. That is what the old rule was. I am sure they had that. Forty-three days for him to be confirmed. Here we have Fortunato Benavides, nominated by President Clinton, University of Houston, University of Houston Law School, previous experience, 13th Court of Appeals for Texas, Texas Criminal Court of Appeals, 99 days to be confirmed. He got nominated and confirmed in 99 days. There was a lot of commotion about him. He got here for a vote. Now we have Priscilla Owen, George W. Bush's nominee, Baylor University, Baylor University School of Law, Texas Supreme Court, 1994 to the present. Both of these nominees were qualified, according to the American Bar, both of these, Mr. Benavides, Judge Owen, a lot of letters of commendation from those who know about their judicial temperament, their qualifications. I told you where she came from, where she was educated, where she served. Look at the time she's been waiting for a vote--I know Americans will better understand our dilemma--1,450 days waiting for us to say what the American people I believe would like us to say, and what I think the Constitution says we ought to say, and that is yes or no. Not maybe; not, ``well, I don't like their ideals so you need 60 votes.'' That is a pretty long time to leave a qualified judge hanging here unless you are absolutely certain that person is not qualified to be a judge. There is a lot more one can say about this, but I believe, as one who has been here a long time--I think right now there are only four people here sitting longer than I in the Senate--we should get this over with. This is hanging over the Senate in a very damaging way. With the passing of each day, more and more is said, more and more joining sides is taking place, digging in your feet, more and more groups outside are adding to the vitriolic nature of the debate. The talking heads--the news people who talk all the time on TV and speak on radio and write all the time--are choosing sides. They are feeding a frenzy, and we are suffering. But most of all, the American people are suffering because if we keep on, it is going to be hard to get our work done. I close by saying that our friends on the other side are led by a Senator whom I honestly and sincerely say is a good leader for the minority, Senator Harry Reid, an excellent Senator--I believe he is fair and honest. I believe he would like to get this issue out of his mind and out of here. But he has suggested that if the majority party insists on doing what we are entitled to do--voting for these judges up or down by a majority vote--if we do that, which, I repeat, is not changing anything, the business of America will stop. We will pass nothing here. The Senate will be dead. America's business will go nowhere; it will disappear. That is an extraordinary threat, a threat that those who are making it better clearly understand. Does that really mean that we won't get a highway bill, an energy bill, an appropriations bill that pays for education, a bill that pays for the operation of our military, that we won't get an appropriations bill through here that pays for our parks, for the Indian schools of our country, and on and on? Have we really reached a point where the minority is saying, we are going to insist on enforcing a rule that doesn't exist, that denies an up-or-down vote on judges who are qualified, and if we don't get our way, Government stops? You know, I hope everybody understands that. I hope it doesn't happen. I think that editorial I read from suggests that those who do that are not going to come out of this with any accolades--nobody is going to be proud of that. I believe that is almost a minimum way of saying it. I think that will inure to the minority party being considered to be irresponsible on behalf of the people of this country. I thank the Senate for listening, and I yield the floor.

Mr. DOMENICI

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