Mark Dayton

Mr. DAYTON

Mr. DAYTON. I thank the Chair. I ask unanimous consent that I speak in morning business for up to 10 minutes.

Mr. DAYTON. I thank the Chair. I also thank the distinguished Senator from Utah, in charge of the proceedings right now, for this opportunity.

Mr. DAYTON

Mr. DAYTON. Mr. President, I have come to the floor to join with the distinguished assistant Democratic leader in his conscientious and continuing concern for the victims of Hurricane Katrina. I have seen the Senator from Illinois on the floor day after day, raising these questions, addressing these concerns. I understand tomorrow the Senator is going to New Orleans to tour the area personally, with Senate leadership, to see what needs to be done there to address the human suffering. I hear in his voice, and know from his longstanding commitment to the people of Illinois, the depth of his own heartfelt concern for their problems and his passion for their suffering and to do what we can, what we must, to address those problems. I look forward to hearing from the Senator next week, after his return from New Orleans and that area, as to what we can do more effectively--all of us as leaders in the Senate, all of us working together, all of us as Americans, not as Democrats or Republicans, not as partisans but as patriots--on behalf of all the people in need. I share his concern. What prompted me to come to the floor is I heard the Senator speaking about some of the difficulties in getting some of the necessary information in order to perform our responsibilities as Senators. I share that frustration, or at least let me express my own frustration because as a member of the Senate Committee on Homeland Security and Governmental Affairs which has, under the Senate's organizing resolution, the responsibility and the authority to oversee the Department of Homeland Security as well as FEMA, the Federal Emergency Management Agency, which is under that agency, I have been confounded and enormously dismayed by the unwillingness of the Senate Republican leadership to permit that committee to do what it is responsible to do, which is to hold oversight hearings and to understand what is happening, what is not happening down in that flood- ravaged part of the country, and also to find out what must be done not to look at just failures--also, you hear about successes--not to point fingers of blame, but to exercise our oversight responsibility, particularly given that we have now, this body, at the President's request, appropriated almost $63 billion of taxpayers' money to address these critical emergency needs. I do not question the need to act quickly. And we have done so. But to deliver that much money--Federal taxpayers' dollars--to the responsible agencies without any oversight, without any questions asked or answers provided about what is being done with that money, and particularly to hear the Senator from Illinois describe published reports of sole-source contracting with organizations that have political connections with the President's former campaign manager, I find it to be shocking and appalling we have not exercised that responsibility. I would ask the leader, and others responsible for these decisions, about when we will be holding public hearings in that committee to authorize our proceeding to do so with those who are directly responsible for the recovery efforts. None of us wants to disrupt the recovery efforts in the southern part of the country. Lord knows, they have been disrupted enough already by what has failed to be done there, without any involvement by any of us. But I find it perplexing that Cabinet secretaries who have enough time to appear on Sunday talk shows and who are also clearly not in Louisiana or Mississippi day and night, 7 days and nights a week around the clock, have, while they are here in Washington, not a single hour available to appear before our committee in a public setting and answer the questions I have, that I know other members of the committee have, and that the American people have. We deserve--most importantly, the American people deserve--answers to these important questions. Yesterday, we had, after now 2\1/2\ weeks since those levees failed in New Orleans, the very first public hearing of this committee. We had a former Governor of California, a former mayor of Grand Forks, ND, a couple of other wonderful former public servants who have expertise from their own past experiences, but not a single one of the people on that panel had any responsibility for the public response to Hurricane Katrina. Similarly, not a single person with public responsibility for that response was willing to appear on that committee. It was 9 days ago that we had before a number of us Senators 10 Cabinet secretaries, the Chairman of the Joint Chiefs of Staff, and the head of the National Guard to brief us on the situation right here in the Capitol, but they were not willing to appear in a public setting, even though there was not a single word spoken in that briefing that could not and should not have been witnessed and heard by the American people. A week ago we had the Director of Operations for FEMA and the Deputy Commandant of the Coast Guard appear before the Committee on Homeland Security and Government Affairs, but they would not appear in a public setting. The briefing was behind closed doors. The public and press could not witness what they had to say. We have not yet, on this committee or any other committee that I am aware of--certainly none on which I serve, including Armed Services--had a single administration official willing to appear before us in a public setting and provide us with the information we desire, to allow us to ask questions and to provide answers in front of the committee and the American people. I find that unacceptable. Again, I urge the Republican leadership of the Senate to authorize that committee to proceed as we are responsible to do, to join us and members of the committee, insist that the administration provide us their top officials. When they are not in New Orleans or Mississippi, when they are here in Washington, come up for an hour, an hour once, to begin with. Keep each of those Cabinet secretaries who were present 9 days ago, ask each one of them to come up and tell us in a public setting what their agency is doing to respond, what do they need from us, whether it is funding, legislation, removal of regulations, restrictions--tell us what you need from us in order to be more responsive and more effective in the Federal response to the emergency that persists. Come before us in a public setting, as public officials, as those who are responsible for the Federal response. Let us ask the questions we must to fulfill our oversight responsibilities, and let's start providing some public answers to the American people. I yield the floor and suggest the absence of a quorum.

Mr. DAYTON

Mr. DAYTON. Mr. President, today the Senate Judiciary Committee began its hearings on President Bush's nomination of Judge John Roberts to be the next Chief Justice of the U.S. Supreme Court. I remain undecided and open minded, as I believe virtually all of my colleagues have also stated themselves to be, about the nominee. I will remain so until those hearings are complete. Nevertheless, I commend President Bush for acting swiftly and responsibly to nominate the successor to the very distinguished and dedicated former Chief Justice William Rehnquist. His tragic death, along with the announced resignation of Justice Sandra Day O'Connor, has created a second vacancy on the Supreme Court, a vacancy for which the President has not yet nominated a replacement but may do so any time in the future. So it is not surprising that even while Judge Roberts confirmation hearings are just beginning, many Americans are already looking ahead and are attempting to influence the President's decision on this second Supreme Court nominee. While President Bush unquestionably has the right to nominate the man or woman--I personally hope it is the woman--of his own choosing, and in fact the President has earned that right by his reelection last November, I believe he has the responsibility to select someone who would be the choice of the vast majority of all Americans, for this woman or man will be a Supreme Court Justice for all Americans living today and likely for all Americans yet to come for many years ahead. If confirmed, she or he will take an oath of office, as each of us has done, to uphold the Constitution of this great country, a 216-year-old document which still lives today to guarantee and protect the rights, the freedoms, and the responsibilities of all 290 million American citizens--not just the majority or the minority, not just Republicans or Democrats, not just conservatives or liberals, not just Christians, Muslims, or Jews, not just some but all Americans. That responsibility--of the President, of this Senate, and of each Supreme Court Justice--to all Americans is why I found so disturbing an article in last Saturday's Washington Post. The front page lead-in said: In defense of Alberto Gonzales, supporters counter the idea that the Attorney General is too moderate for the High Court. Alberto Gonzales, as we all know, is the Attorney General of the United States and is widely considered to be one of the President's most likely considered nominees to fill this second Supreme Court vacancy. The Washington Post story's headline reads: ``Gonzales is Defended as Suitable for the Court.'' The article begins: Supporters of Attorney General Alberto Gonzales have launched a campaign to rebut criticism that he is not reliably conservative enough to serve on the Supreme Court. I find those words bizarre. Accurate, I have no doubt, in portraying a bizarre situation caused by the bizarre behavior of some bizarre people who are--and this is where it becomes frighteningly bizarre-- seriously trying to determine who the President of the United States will or will not nominate to the U.S. Supreme Court. It shall not be, they decree, someone too moderate to be suitable for the Supreme Court. Too moderate to be suitable to serve on the U.S. Supreme Court? What terrible acts of moderation has Attorney General Gonzales committed to make himself unsuitable, unfit or unqualified? According to the article, as a justice on the Texas supreme court 5 years ago, then-Judge Gonzales sided with the court's majority in upholding the constitutionality of a Texas State law that provided a judicial bypass to allow a State judge, in exceptional circumstances, to allow a minor woman to obtain an abortion without her parents' notification. According to the article, Judge Gonzales: . . . wrote that he felt a duty to follow the law without imposing my moral view, even if the ramifications may be personally troubling to me as a parent. In other words, he did what a State or Federal Supreme Court Justice is sworn to do, to decide upon the constitutionality of legislation that State legislatures or the Congress passes and that Governors or Presidents sign into law, based upon the written State and U.S. Constitutions, regardless of their personal views. If that is considered too moderate to be suitable for the Supreme Court, then this country is headed for the extreme deep end. On the other side, to prove that the Attorney General is not too moderate to be suitable for the Supreme Court, his supporters reportedly note that, as President Bush's White House counsel, he successfully excluded the American Bar Association from the judicial selection process. That proves he is suitable? As I said, this political psychodrama has taken the bizarre twist of Alice in Wonderland, where black is white and up is down; where suitable is unsuitable and unsuitable becomes suitable, except that this is no play, and these people are not playing around. The stakes couldn't be higher, and these people are playing for them all. The stakes are the future of the country and all the people, all of the people who live in this great United States of America. One conservative activist is quoted in the Post story: You finally get a Republican President a real Republican majority in the Senate and then you don't move the country to the right? It would be totally demoralizing to the President's supporters. First of all, this notion that the U.S. Supreme Court is some liberal bastion is itself bizarre and wrong. Seven of the nine Justices on the current Court were named by Republican Presidents. Chief Justice Rehnquist and three Associate Justices were nominated by President Reagan, two by former President George W. Bush, one by President Ford and two by a Democratic President, President Clinton. But that composition of the Court, 7 of 9 nominees by Republican Presidents, that is not enough for the activist zealots. They believe that some of those Republican judicial nominees had become too moderate, once they were safely confirmed and placed on the Supreme Court. Too moderate for them is a judge who has independent views. Too moderate is a judge who has sworn to uphold the Constitution and not to impose his or her views on that process of legislation and enactment into law as prescribed by the U.S. Constitution. Too moderate for them means refraining from judicial activism, which they profess to oppose but in fact oppose only when they disagree with the Court's findings. Government is not a Burger King. You are not supposed to all ``have it your way.'' People who think getting their own way all the time, especially from the U.S. Supreme Court, is somehow a measure of Presidential greatness are seriously wrong. People who are demoralized if they do not get it all their own way, especially from the U.S. Supreme Court, are dangerously misguided. I implore President Bush to rise above his base, as it is described in the article. If it is not to be Attorney General Gonzales, then someone else who is moderate and who is therefore suitable, who is therefore qualified to serve in this highest Court of the land. It may not serve the perceived interests of some of his misguided supporters, but it will serve the best interests of all of his supporters, who are all of us--all of the American people. He is the President of all of us. He was elected through our process to represent all of us, to be supported when we can, and ultimately, in the office he serves, by all Americans. It is the process for him to nominate and for this body to confirm a U.S. Supreme Court Associate Justice who will also serve, look out for and serve all Americans. I yield the floor and suggest the absence of a quorum.

Mr. DAYTON

Mr. DAYTON. Mr. President, I echo some of the remarks the Democratic leader made. I am about to leave this Chamber to go to a behind-closed- doors hearing of the Committee on Homeland Security and Governmental Affairs with the acting director of operations for FEMA and the Commandant of the Coast Guard. I am told that the chairman of the committee, the distinguished Senator from Maine, and the ranking member from Connecticut tried to get this hearing in public but that the administration officials would not appear in a public session. I think the public deserves to and would benefit from hearing these people with key roles in this recovery effort. Similarly, on Tuesday evening, a majority of us in the Senate met with 10 members of the Cabinet, 10 Secretaries--all of them had important things to say--as well as the Chairman of the Joint Chiefs of Staff and the head of the Coast Guard. That briefing should have been in a public setting. There was not a single remark made by anyone that was not unclassified and should not have been available to all of the people of this country, certainly those who are most beleaguered, who are looking for answers to the questions that the Democratic leader and others on both sides of the aisle have raised. We had a brief time for questions. We were not able to ask those questions of the administration officials in a public setting before the American people. Yet the President is coming forth now with a second request for funding, $51.8 billion on top of the $10.5 billion the Senate and the House passed last week. These matters are moving swiftly. We are told by FEMA that the burn rate--only in the Federal Government would the spending of taxpayer money of $2 billion a day be called a burn rate, but the FEMA director has said they are spending $2 billion a day. That is why we have to have a second supplemental before this body in less than 2 weeks. I understand the need to move quickly, but I have been in this body all week. We could have come back last week. We have not had a single public hearing on any of these matters, I am told, because the administration officials will not appear in public before these committees to answer questions before us and before the American people. I find that to be unacceptable. The administration has a responsibility to come before us in public hearings and public sessions and present their testimony but then answer our questions. Give us a chance to ask and for them to answer the questions that are on the minds of millions of Americans these days. We have a right to public hearings before we expend another $51.8 billion of public money. The administration has that responsibility, I believe, and I ask that the distinguished majority leader of the Senate insist in his discussions with the administration--and I am quite confident that the Democratic leader and all of our caucus would support this--that these hearings and briefings be in public settings before the American people and not behind closed doors. If we are going to work together in a bipartisan way, let us do so. Let us begin that work now in public sessions. I challenge the administration officials to come before us in those settings. I yield the floor, and I suggest the absence of a quorum.

Mr. DAYTON

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

Mr. DAYTON. Mr. President, I ask unanimous consent to set aside the pending amendments and call up amendment numbered 1654.

Mr. DAYTON. I ask unanimous consent the reading of the amendment be dispensed with.

Mr. DAYTON. I thank the distinguished ranking member for assistance in putting this together. I thank my distinguished cosponsor of this amendment, Senator Chambliss of Georgia, for his leadership and involvement in the Byrne Grants, along with Senator Lieberman whose long-time involvement in the grants has been recognized nationally. It is my understanding the amendment is further cosponsored by Senator Obama, Senator Kerry, and Senator Harkin, and I ask unanimous consent Senators Hagel, Clinton, Cantwell, and Salazar be added as original cosponsors of the amendment.

Mr. DAYTON. Mr. President, this amendment increases the funding for the Juvenile Assistance Grants by $275 million, with particular focus on adding that funding to what are called the Byrne Grants, which are local law enforcement grants vital in my State of Minnesota for fighting the scourge of meth that has ravaged communities, that has been so destructive to schoolchildren of all ages, I am sorry to say, particularly teenagers and young adults. The illegal meth used in production in Minnesota has increased in a skyrocketing fashion. I understand that is true in many other States as well. These Byrne Grants have been essential to Minnesota and other law enforcement efforts to provide the funds necessary to combat the scourge. The funds go to local law enforcement block grants. The Byrne Formula Grants consolidated into the Justice Assistance Grant have been reduced in the last couple of years. This restores badly needed funding for those purposes. I commend the chairman of the subcommittee and the ranking member for providing $625 million of funding that is well above what the House of Representatives has provided, $348 million. This money is desperately needed and will be well used. My amendment is fully offset by various reductions in administrative expenses. I can detail those if Members desire, but it will be fully offset, and has been determined as such by the Congressional Budget Office. I ask unanimous consent, at the conclusion of my remarks, the following letters of endorsement from the national organizations be added: The National Association of Police Officers, the International Association of Chiefs of Police, the Minnesota Sheriff's Association, the Minnesota Police and Peace Officers Association.

Mr. DAYTON. I ask my colleagues to support this bipartisan effort. I believe they will find, as I have, this has almost unanimous support of local law enforcement officials in their States, as it does in mine. The funding is desperately needed, and it will be well used and go to our communities, to our counties, to our States in ways that will be directly involved in reducing juvenile crime as well as other forms of crime. Exhibit 1 The National Association of Police Officers, September 8, 2005. Re Dayton Amendment re JAG funding. Office of Senator Dayton, Washington, DC. NAPO supports Senator Dayton's amendment to increase JAG funding by $275 million. The Justice Assistance Grants have provided beneficial support for local law enforcement, fostered community initiatives against crime and facilitated improvements to State criminal justice systems. We thank the Senator for his continued work to ensure that local law enforcement is afforded the ability to receive the effective and user-friendly funds it Deeds the most. Please keep me posted on how the amendment fares today. Thank you.

Mr. DAYTON. I yield the floor and suggest the absence of a quorum.

Mr. DAYTON

Mr. DAYTON. Mr. President, I also want to join with others of my colleagues today who have expressed the concerns, condolences, and sympathies to the victims of Hurricane Katrina, which has so horribly claimed so many of our fellow Americans' lives, families and friends, homes, businesses, farms, schools, and entire communities that are the worst victims of this unprecedented disaster. Our hearts go out to all of them. Our helping hands are being extended and must continue to be extended to them. There are millions of other victims of this disaster, Americans nationwide whose economic well-being has been harmed by price increases and supply or service disruptions. In my State of Minnesota, probably the worst economic damage and financial hardships have been caused by the skyrocketing prices for gasoline and other essential energy supplies. Even before Hurricane Katrina, those prices had been increasing sharply. In the 3 months from May 28 to August 28 of this year, the average price of regular unleaded gasoline throughout Minnesota has risen from $1.92 a gallon to $2.55 a gallon. That is an increase of 63 cents a gallon, a one-third increase in just 3 months. Then, in 3 days last week, from August 29 to September 1, the average gasoline prices in Minnesota jumped another 46 cents a gallon, according to one Web site that has spot check reports from throughout the State. So in 3 months and 3 days, the average gasoline prices, according to this Web site, in Minnesota, jumped from $1.92 a gallon to $3.01 a gallon, a 57-percent increase. That is not as bad as some other parts of the country, but it is sure worse than bad enough for Minnesota. I know from direct personal experience driving around northern Minnesota last week that actual prices were much higher, as high as $3.46 a gallon for regular unleaded gasoline, which was up almost $1 a gallon from 2 weeks before. Unfortunately, that up-to-date, accurate information is not available from the Energy Information Administration Web site, and that is one of the defects that needs to be remedied. Most of Minnesota's oil and gasoline supplies originate from Canada, come in either by gasoline or oil pipelines and then refined within our State. So almost all of our price increases for gasoline and other energy products were not directly the result of Katrina's supply disruptions. Rather, they were the result of other people taking advantage of that disaster to take advantage of the people of Minnesota. Last week, President Bush called it ``price gouging at the gasoline pump,'' and I agree with the President. President Bush also said that there should be zero tolerance for gasoline price gouging, similar to looting in New Orleans, and I agree with the President on that as well because price gouging has the same effect as looting or other kinds of stealing. It is robbing the people of Minnesota and elsewhere throughout this country by overcharging them for their essential energy needs. Given the similarity of the gasoline price increases throughout Minnesota, I think there is a strong possibility of pricing collusion by the major oil suppliers and distributors that demands immediate investigation and, where called for, vigorous prosecution of violators. What they have done is not only immoral, it is also illegal under Federal law. I have written the United States Attorney General and urged him to back up the President's strong words with his strong immediate action to investigate all indications of price gouging and/or pricing collusion of gasoline, diesel fuel, aviation fuel, farm fertilizers, natural gas, liquid petroleum gas, home heating oil, ethanol, and any and all other oil supplies. At this time, I urge the President to release whatever supplies are necessary from our Nation's Strategic Petroleum Reserves to offset the loss of oil, gasoline, and other energy supplies resulting from Hurricane Katrina. Last night, the Secretary of Energy told a number of us in the Senate, in a briefing, that gasoline prices have been stabilized. Well, with due respect, Mr. Secretary, I must say they have been stabilized far too high in Minnesota, if, in fact, they have been stabilized at all. Thus, whatever has been done so far is not enough. Gasoline prices are still unaffordably too high in Minnesota. Other energy prices are still unaffordably too high, and with the cold weather heating season soon upon Minnesotans and other Americans in the United States, it is imperative to act now and keep on doing whatever is necessary to get energy prices back down to pre-Katrina levels--which were still too high--and then deal with that continuing energy price crisis in Minnesota and other affected States and continue to do whatever is necessary to get those lower prices. In the immediate term, we need to strive for lower energy prices, and we need executive action to prosecute price gouging, price collusion. We also, then, need, as a body of Congress, to do whatever is necessary to strengthen Federal legislation to prohibit and prevent this kind of economic looting of our fellow citizens. A couple of my colleagues have announced, just in the last 2 days, their intentions to introduce legislation. Senator Dorgan of North Dakota intends to offer windfall profits tax legislation on U.S. oil companies and other energy suppliers. Senator Cantwell of Washington has indicated her intention to offer legislation that would give the President additional powers to mitigate price increases in times of crisis. I intend to introduce in the next 2 days, as soon as it is complete, legislation that would prevent and prosecute price gouging in energy and other essential commodities. In a nutshell, this legislation would make it illegal in any emergency situation to take advantage of consumers by raising energy prices or other essential commodity prices. It would give the U.S. Attorney General further authority to prosecute retail gasoline stations, oil companies, distributors--whoever is found to be in violation of this provision. It would require the Energy Information Administration to provide current prices for major metropolitan areas for every State and for our entire Nation on a daily basis so that we can evaluate those price increases so that citizens can know, in perspective, what they are being charged and how it compares with other parts of the country. They can then be our eyes and ears to report evidence of these rising prices that constitute price gouging, as the President said, at the gasoline pump. We have witnessed once again, in the midst of this disaster affecting Southern United States, that such disasters bring out both the best and the worst of human nature. They bring out the best, as we have seen the courageous men and women of the National Guard, the medical personnel, and many others who are literally risking their own lives to save the lives of others. We have seen the best of human nature in the response of millions of Americans from all over the country who have contributed whatever they can and are offering to do more to alleviate this suffering. Here in the Senate last week, and also in the House, we provided an additional $10.5 billion the President requested to continue emergency operations. All of us, including those at a meeting last night with a number of the Cabinet Secretaries, were asking the administration, What do you need us to do? Money? Authorizing legislation? Streamlining existing legislation? Tell us what we need to do in the Senate and House to expedite in the best possible ways the relief effort that must continue for months ahead. This is not a Republican or Democratic disaster or Republican or Democratic response. It is an American disaster, and it is a response of all of us as Americans to our fellow citizens in need. Unfortunately, there is another side to human nature, and that is what we must also address. It cannot be allowed. It certainly cannot be rewarded with profits to those who take advantage of the despair of their fellow citizens. Some cannot be allowed to cause even further economic hardship, even devastation, especially to those who can least afford the prices of energy essentials and other necessities of life. That is where our fellow citizens look to us to stand up on their behalf to prevent, prosecute, and to prohibit this kind of economic looting that the President called price gouging. I support his statement. I urge the U.S. Attorney General to put action behind those words, and then I urge my colleagues to join with me in passing legislation to prohibit and prevent this from happening again and to prosecute those who are responsible for it. I yield the floor and I suggest the absence of a quorum.

Mr. DAYTON

Mr. DAYTON. Mr. President, I join with my colleague, the distinguished Senator from Florida, in expressing my personal condolences and those of my fellow Minnesotans to the family and friends of the former Chief Justice, and I share the sentiments in regard to his distinguished service to our nation.

Mr. DAYTON

Mr. DAYTON. Mr. President, I ask unanimous consent that Sophie Thurber of my staff be granted the privilege of the floor for the duration of this debate.

Mr. DAYTON

Mr. DAYTON. I thank the majority leader.

Mr. DAYTON. Mr. President, reserving the right to object, I ask the majority leader, will that vote on CAFTA be a rollcall vote?

Mr. DAYTON

Mr. DAYTON. Mr. President, I thank my colleague, the senior Senator from Michigan, for whom I have so much respect. He is a leader and champion in so many important areas and has, once again, risen to this occasion. I am proud to be cosponsor of the Levin amendment. Mr. President, this legislation eviscerates the liability for negligence for one industry in America, the gun industry. I strongly support the second amendment. I have enjoyed the support of the NRA in the past, probably not in the future. Last year in this country, by the industry statistics, over 1.3 million handguns were sold and over 2 million long guns--legally, properly, in almost all cases constitutionally protected. Nothing in this country, nothing being considered here, nothing that would ever pass this body, in my lifetime, would prevent law-abiding citizens from lawfully buying and owning firearms. Nothing should and nothing will, not because of the existence of the NRA, not because they are holding forth and preventing the marauding hordes from somehow overriding and overturning this constitutional amendment--it is not going to be changed because the political support in this country would not be for it. The people would not support it. That right is constitutional and it is inviolable, but it is not inconsistent with that right to also require the responsible distribution and sale of those millions of firearms. We all know what damage they can do to innocent people when they are misused by criminals or mistakenly used by children. We should do all we reasonably can to prevent those tragedies to innocent people and to innocent families. We should insist that everyone in the gun industry do all they can to prevent them as well. That is what the legal standard of negligence requires. It is what most people in this industry consistently practice. I own two handguns. I own two shotguns. They are in Minnesota, purchased from Minnesota dealers who take their responsibilities very seriously. They are not our concern. They need not be concerned because their own practices are a clear defense against any unwarranted accusations. However, there are a few in this country, as there are in any industry, that are not responsible manufacturers, distributors, or dealers. Senator Levin has cited evidence of the results of those irresponsible actions, and they should be our concern. They certainly do not warrant our protection. They certainly do not deserve to be elevated to a special status that is not accorded to responsible manufacturers and sellers of every other consumer product in America. The Levin amendment, and I will read it again, says that if gross negligence or reckless conduct of that person was the proximate cause, a direct cause of death or injury to somebody else, this act shall not prohibit a civil liability action from being brought forth. How can anyone here be opposed to that? It defines those terms clearly in the amendment, which was one of the specious excuses used to oppose it last year. It defines its terms more clearly than does the underlying bill. So if this amendment fails, it truly gives lie to the claim that this bill intends to hold the gun industry to any standard of liability. If not for gross negligence that is a direct cause of death or injury to an innocent person, if not for that, there is no standard of liability at all. The American Bar Association has taken a position in opposition to this legislation, and I would just note a couple of references. I ask unanimous consent that following my remarks, this be printed in the Record.

Mr. DAYTON. It says that this proposed legislation would remove defendants from one of the oldest principles of civil liability law-- that persons or companies who act negligently should be accountable to victims harmed by this failure of responsibility. It states that under product liability laws in most States, manufacturers must adopt feasible safety devices that would prevent injuries caused when their products are foreseeably misused, regardless of whether the uses are ``intended'' by the manufacturer or whether the product ``fails or improperly functions.'' Thus, as the Senator from Michigan noted, automobile makers have been held civilly liable for not making cars crashworthy even though the intended use is not to ``crash the cars.'' Manufacturers of cigarette lighters must make them childproof even though children are not intended to use them. Under this proposed legislation, however, State laws would be preempted so that gun manufacturers would enjoy a special immunity. The letter also points out that this is happening in the existing legal backdrop of the present unparalleled immunity that the firearms industry already enjoyed from any Federal safety regulation. Unlike all other consumer products except for tobacco, there is no Federal law or regulatory authority that sets minimum safety standards for domestically manufactured firearms because that industry was able to gain an exemption for firearms from the 1972 enacted Consumer Product Safety Act, the primary Federal law that protects consumers from products that present unreasonable risk of injury. Of all the products we should have included in that legislation, firearms are among them given the inherent danger from their misuse or from their improper manufacture. Instead, they are exempted from the consumer product safety oversight by the Federal Government. That is the power of the industry. I guess they have the power, they are demonstrating, to get this bill enacted as well and remove themselves from all liability. That is not in the best interest of America. It is not a fair standard for America. It is an injustice to other businesses, manufacturers and sellers of every other product in America. If we are going to recognize, as we should, that excessive litigation is a problem for this industry and for most all others, we should deal with tort reform in its entirety as it applies fairly and equally to all businesses and all industries, not single out one for special treatment. I yield the floor. Exhibit 1 American Bar Association, Government Affairs Office, April 4, 2005. Dear Senator: I am writing on behalf of the American Bar Association to express our strong opposition to S. 397, the Protection of Lawful Commerce in Arms Act, and to similar legislation to enact special tort laws for the firearms industry. The ABA opposes S. 397, and has opposed similar legislation in the past two Congresses, because we believe the proposed legislation is overbroad and would unwisely and unnecessarily intrude into an area of traditional state responsibility. The responsibility for setting substantive legal standards for tort actions in each state's courts, including standards for negligence and product liability actions, has been the province of state legislatures and an integral function of state common law since our nation was founded. S. 397 would preempt state substantive law standards for most negligence and product liability actions for this one industry, abrogating state law in cases in which the defendant is a gun manufacturer, gun seller or gun trade association, and would insulate this new class of protected defendants from almost all ordinary civil liability actions. In our view, the legitimate concerns of some about the reach of a number of suits filed by cities and state governmental units several years ago have since been answered by the deliberative, competent action of state courts and within the traditions of state responsibility for administering tort law. There is no evidence that federal legislation is needed or justified. There is no hearing record in Congress or other evidence to contradict the fact that the state courts are handling their responsibilities competently in this area of law. There is no data of any kind to support claims made by the industry that it is incurring extraordinary costs due to litigation, that it faces a significant number of suits, or that current state law is in any way inadequate. The Senate has not examined the underlying claims of the industry about state tort cases, choosing not to hold a single hearing on S. 397 or its predecessor bills in the two previous Congresses. Proponents of this legislation cannot, in fact, point to a single court decision, final judgment or award that has been paid out that supports their claims of a ``crisis''. All evidence points to the conclusion that state legislatures and state courts have been and are actively exercising their responsibilities in this area of law with little apparent difficulty. S. 397 proposes to exempt this one industry from state negligence law. The proposed federal negligence law standard will unfairly exempt firearms industry defendants from the oldest principle of civil liability law: that persons, or companies who act negligently should be accountable to victims harmed by this failure of responsibility. Negligence laws in all 50 dates traditionally impose civil liability when individuals or businesses fail to use reasonable care to minimize the foreseeable risk that others will be injured and injury results. But this proposed legislation would preempt the laws of the 50 states to create a special, higher standard for negligence actions for this one protected class, different than for any other industry, protecting them from liability for their own negligence in all but extremely narrow specified exceptions. The ABA believes that state law standards for negligence and its legal bedrock duty of reasonable care should remain the standard for gun industry accountability in state civil courts, as these state standards do for the rest of our nation's individuals, businesses and industries. The proposed federal product liability standards will unfairly insulate firearm industry defendants from accountability in state courts for design defects in their products. The proposed new federal standard would preempt the product liability laws in all 50 states with a new, higher standard that would protect this industry even for failing to implement safety devices that would prevent common, foreseeable injuries, so long as any injury or death suffered by victims resulted when the gun was not ``used as intended''. Under existing product liability laws in most states, manufacturers must adopt feasible safety devices that would prevent injuries caused when their products are foreseeably misused, regardless of whether the uses are ``intended'' by the manufacturer, or whether the product ``fails'' or ``improperly'' functions. Thus automakers have been held civilly liable for not making cars crashworthy, even though the ``intended use'' is not to crash the car. Manufacturers of cigarette lighters must make them childproof, even though children are not ``intended'' to use them. Under. this proposed legislation, however, state laws would be preempted so that gun manufacturers would enjoy a special immunity. Enactment of S. 397 would also undermine responsible federal oversight of consumer safety. The broad and, we believe, unprecedented immunity from civil liability that would result from enactment of S. 397 must be viewed against the existing legal backdrop of the present, unparalleled immunity the firearms industry enjoys from any federal safety regulation. Unlike other consumer products, there is no federal law or regulatory authority that sets minimum safety standards for domestically manufactured firearms. This is because the firearms industry was able to gain an exemption for firearms from the 1972-enacted Consumer Product Safety Act, the primary federal law that protects consumers from products that present unreasonable risk of injury. Over the last 30 years, an average of200 children under the age of 14 and over a thousand adults each year have died in gun accidents which might have been prevented by existing but unused safety technologies. A 1991 Government Accounting Office report estimated that 31 percent of U.S. children's accidental firearm deaths could have been prevented by the addition of two simple existing devices to firearms: trigger locks and load-indicator devices. Sadly, these minimal safety features are still not required. This bill, if enacted, would insulate the firearms industry from almost all civil actions, in addition to its existing protection from any consumer product safety regulations. Such special status for this single industry raises serious concerns about its constitutionality; victims of gun violence have the right--as do persons injured through negligence of any party--to the equal protection of the law. The risk that states may at some future date fail to appropriately resolve their tort responsibilities in an area of law--where there is no evidence of any failure to date-- cannot justify the unprecedented federal preemption of state responsibilities proposed in this legislation. The ABA believes that the states will continue to sort out these issues capably without a federal rewriting of state substantive tort law standards. The wiser course for Congress, we believe, is to respect the ability of states to continue to administer their historic responsibility to define the negligence and product liability standards to be used in their state courts. For these reasons, we urge you to reject S. 397. Sincerely, Robert D. Evans.

Mr. DAYTON

Mr. DAYTON. Mr. President, I ask unanimous consent that Laura Soltis of my office be granted floor privileges for this debate.

Mr. DAYTON

Mr. DAYTON. Mr. President, I am one Member, along with a number of my colleagues, who believes we should be debating not this gun liability bill but the Department of Defense authorization bill for the coming fiscal year. I serve on that committee. It was a good bipartisan effort. I was planning to offer an amendment to add $120 million for childcare and family support for the families of reservists and National Guard men and women who are called to active duty. Others had amendments, including one regarding BRAC, of particular note to me and others in Minnesota affected by that process. But we are not on that bill. Instead, we are dealing with the most special interest legislation I have encountered in my 4\1/2\ years in the Senate. We are going to leave at the end of this week for a month and we have one last window of opportunity to take up what presumably would be the most important measure before the Nation and the Senate. Instead, we get this special interest bill. We are not on stem cell legislation that would allow us to create a medically and scientifically based framework to protect the sanctity of human life or prohibit cloning, and yet still allow medical research that could save many thousands of lives for years to come. That is not the Republican leadership's top priority. Nor is the constitutional amendment to prohibit the burning or desecration of the American flag, of which I am a proud cosponsor, brought to the Senate. In my 4\1/2\ years in the Senate, not once has the leader brought that measure to the Senate for an up-or-down vote by the Senate. Evidently it won't happen this week, either, because, again, that does not rate as a top priority. No, according to the Republican leadership, the most important issue facing America and earning the most urgent attention of the Senate is the supposed need to give special immunity from the standards for negligence and product liability that apply to all other businesses and all other products. When this legislation passes, and it will pass with ease, because the NRA, National Rifle Association, has the money and the political clout to get whatever it wants around here, no matter how unnecessary, unfair, or ill advised it is, this bill will soon become the law of the land. One of its findings is: (7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation and hundreds of years of common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of rights, privileges and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution. It goes on to say one of the purposes is to preserve a citizen's access to a supply of firearms and ammunition for all lawful purposes, something I certainly support. It goes on to say the purpose is to protect the right under the first amendment of the Constitution of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations to speak freely, to assemble peacefully, and to petition the Government for redress of their grievances. This legislation is supposedly necessary to protect the first amendment rights of people in the lawful business of manufacturing, distributing, or selling firearm and buying the same. In the manufactured hysteria of this fabricated crisis, the Government or a maverick judicial officer or a petit jury evidently is threatening to violate the first amendment, the second amendment, and the 14th amendment rights of all gun manufacturers, distributors, and dealers in the United States of America. What utter nonsense. But if the National Rifle Association says the sky is green and the grass is blue, the majority of Congress will run for the paint. I strongly support the second amendment of the U.S. Constitution. I am a gun owner myself and a hunter. This bill does not benefit gun owners or hunters, who are most of the NRA members. They are being used to give special favors and special treatment to someone's special friends and someone's big contributors. Last year, according to industry data, there were over 1.3 million handguns sold in the United States. That is just handguns. Sales totaled $605 million. The sales of rifles and shotguns last year totaled $1 billion. The number of long guns sold was not available, but simple math puts that number well over 2 million rifles and shotguns sold in the United States last year. Given that volume of sales and weapons available, can anyone believe any law-abiding American's constitutional right to lawfully purchase and own as many guns as he or she wants is being endangered? What nonsense. Absolute nonsense. Our major gun manufacturers are certainly not in danger. Smith and Wesson's most recent annual report showed net product sales of $118 million last year, an increase of almost 20 percent over the previous year. Sturm, Ruger and Company on July 20 of this year reported net sales for the 6 months ended June 30, 2005 as $78.7 million, an 8-percent increase over 2004, and the chief executive stated firearm unit shipments in the second quarter increased 11 percent from the prior year due to strong demand. This is not an industry being hounded out of business. Would the industry like to rid itself of all lawsuits stemming from products and sales? Of course, and so would every other industry and company in America. I am not here to defend our Nation's litigation practices, which are often excessive and sometimes even extreme, but whatever so- called reforms are made should apply to everyone. Gun manufacturers and dealers are not the only people who make and sell potentially dangerous products or products that can be used illegally and misused. And judges and juries are not indiscriminately finding against gun manufacturers. Most are probably gun owners and hunters as well. Despite what the NRA pedals to its members to justify its existence and their dues, the second amendment is accepted and respected by the overwhelming majority of Americans and there is no threat to responsible manufacturers, dealers, lawful buyers, or owners of the millions of guns in America. There is no justification for this special legislation and the special treatment it gives to that industry. Of course, the gun industry is accustomed to getting special treatment from Congress. Firearms and tobacco are the only two consumer products specifically exempt from regulation by the Consumer Products Safety Commission. What an exemption. I have to hand it to the NRA, whether I agree with them or not, they sure know how to operate around here. Many industries and even individual corporations pour a lot more money into lobbying and into political contributions than the NRA and they do not get nearly the special treatment, special favors from Congress the gun lobby does--a complete exemption from consumer product safety laws and regulations, and now almost complete immunity for lawsuits from negligence or product malfunctions. All other businesses and industries in America are in discount coach while the gun lobby has special privileges flying first class on Air America under this Congress and preceding Congresses. It is because there is that exemption from the consumer product safety laws of this country that some of these lawsuits, not frivolous, but determined by a judge or jury through the process to be legitimate and bona fide, and the resulting civil damages are necessary to move the industry to take some of the safety actions it can technologically and financially certainly afford to make that it probably would not do otherwise. For example, take Bushmaster. Their dealer lost the sniper's assault rifle along with 238 other guns that were then used by the snipers against the innocent victims in Washington, DC. As a result of its settlement with the victims of those families, they agreed also to inform their dealers of safer sales practices that hopefully will prevent other criminals from obtaining the guns, something that had never been done before. In June of 2004, two former New Jersey police officers were shot in the line of duty with a trafficked gun negligently sold by a West Virginia dealer. They won a $1 million settlement, and the dealer who sold the gun, along with 11 other handguns in a cash sale to a straw buyer for a gun trafficker--after that lawsuit that dealer, as well as two other area pawnshops, agreed to implement safer practices to prevent sales to traffickers, including a policy of ending large-volume sales of handguns. In 2004 also, Tennille Jefferson, whose 7-year-old son was unintentionally killed by another child with a trafficked gun, won a settlement from a gun dealer that amounted to $850,000. The handgun was one of many the dealer sold to the trafficker despite clear signs the guns were headed for the underground market. That, too, resulted in changes in policies and sales practices that hopefully will prevent other mothers from suffering that terrible fate of losing a child. I am not saying every one of those cases filed against the manufacturers or dealers is proper. Again, that is for the process to determine. But there is no evidence, no evidence at all, that there is anything about the nature of these suits, the outcomes of them, the jury awards relative to the damages that have occurred, that indicates this industry is being prejudiced or plagued by those who they contrive to be doing so, to justify this legislation. If we are going to reform the tort system in this country, let's do it openly and aboveboard with all industries, all of American businesses affected equally by those changes. To single out one industry, particularly one that manufacturers products, potentially, as dangerous as guns, is just a terrible day for the Senate. Mr. President, I yield the floor.

Mr. DAYTON

Mr. DAYTON. First, I want to commend the Senator for his integrity and his courage in standing up. I know, as the Senator said, this is an unpleasant matter and that is why I wanted to bring to light, having served with the distinguished Senator, now ranking member but then chairman of the Senate Agriculture Committee, is my recollection correct that this matter was brought to light in a front-page story expose by the leading newspaper in Iowa? This was not a matter that was a partisan trying to find information about somebody, this was brought forth by the newspaper itself?

Mr. DAYTON. Would the Senator yield for another question?

Mr. DAYTON. During the time the Senator referenced, I believe the Senator was the chairman of the Senate Agriculture Committee. It was the responsibility of the administration to perform the due diligence necessary to investigate all of the relevant factors, the background of this gentleman, Mr. Dorr, but especially it was then the responsibility of the oversight committee of the Senate, the Agriculture Committee, of which the Senator was chairman, to look into these matters. I again commend the Senator for taking on that responsibility as the chairman of the committee and doing it so forthrightly.

Mr. DAYTON. Will the Senator yield for a question?