Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I thank the distinguished chairman of the Budget Committee.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I thank the Senator from Massachusetts for the time and especially for his tremendous leadership and eloquence on this issue. Mr. President, I rise today to express my support for the Occupational Health and Safety Administration's final ergonomics standard, and to express my opposition to the attempt to overturn this standard by using the Congressional Review Act. After more than 10 years of research, public hearings, and public comments, OSHA's final ergonomics standard was published in the Federal Register on November 14, 2000. The standard took effect on January 16, 2001, extending basic protections to workers across our Nation. Each year, more than 1.8 million American workers suffer from workplace injuries caused by repetitive motions including heavy lifting, sewing, and typing. These injuries have an impact on every sector of our economy, and are particularly prevalent among women because many of the jobs held predominately by women require repetitive motions or repetitive heavy lifting. These preventable injuries cost more than $60 billion annually, $20 billion of which is from workers' compensation costs. In addition to costing American businesses millions of dollars, repetitive stress injuries are costing American workers their health and, in some cases, their mobility. This means that some workers will lose the ability to do certain activities--activities ranging from simple tasks like fastening buttons to more meaningful things including picking up a child or participating in sports. In past Senate debates on this issue, one of the chief arguments against an ergonomics standard has been that more scientific research was needed to prove the connection between repetitive motions and the physical injuries being suffered by hundreds of thousands of workers each year. Even though there was already a significant body of research outlining the need for national ergonomics standards from sources including the National Academy of Sciences, the National Institute for Occupational Safety and Health, and the General Accounting Office, opponents of a Federal standard argued that the standard needed to be delayed until another NAS study was issued. That NAS study is out, and its conclusions are clear: There is a connection between repetitive motion and physical injury, and these injuries are preventable. According to the study: The weight of the evidence justifies the introduction of appropriate and selected interventions to reduce the risk of musculoskeletal disorders of the low back and upper extremities. They include, but are not confined to, the application of ergonomic principles to reduce physical as well as phychosocial stressors. To be effective, intervention programs should include employee involvement, employer commitment, and the development of integrated programs that address equipment design, work procedures, and organizational characteristics. Further proof can be found in existing ergonomics programs. Companies across the country have reduced the instances of preventable workplace injuries by designing and implementing their own ergonomics programs. In my home State of Wisconsin, the popular maker of children's clothing, OshKosh B'Gosh, redesigned its workstations. This commonsense action cut workers' compensation costs by one-third, saving the company approximately $2.7 million. Another Wisconsin company, Harley-Davidson, cut workplace ergonomics injuries by more than half after implementing an ergonomics program. An employee of a health care facility in my hometown of Janesville, WI, said the following about the joint efforts between her management and fellow employees to design a program to combat the back injuries that are all too common among health care workers: I am here today to tell OSHA that working in a nursing home is demanding and hazardous work. Those hazards include back injuries as well as problems in the hands, arms, shoulders, and other parts of the body . . .. I am also here to testify that the injuries and pain do not have to be part of the job . . .. Together [management and labor] have identified jobs where there are risks of back injuries. After getting input from employees, the employer has selected equipment that has improved the comfort [and] the safety of patients as well as the employees. . . . What we are doing at the [nursing home] is proof that it is possible to prevent injuries with a commitment from management and the involvement of employees. Our injury prevention program is a win-win for everybody: Management, labor, the patients, and their families. I urge OSHA to issue an ergonomics rule so that nursing home workers across the country will have the same protection that we have at the health care center. There are many other success stories in Wisconsin and around the United States. I commend the efforts of those companies which have proven that responsible ergonomics programs can--and do--prevent injuries resulting from repetitive motions. Unfortunately, though, not all American workers are protected by ergonomics programs like those I have described. For example, one of my constituents who testified at an ergonomics event in my state has endured three surgeries over a ten-year period to repair damage to his spine caused by repetitive motions at his job. In his testimony, this man said, Pain is my constant companion and I still need pain medication to get through the day. It is an effort just to put my socks on in the morning. I will never be healthy and pain free. Another one of my constituents described the impact that an injury he sustained at work--while lifting a 60-80 pound basket of auto parts-- has had on his once-active lifestyle: This pain has limited me in many ways . . .. I used to teach soccer to kids. Now I can't walk more than half an hour without pain in my legs and spine. I have to prepare myself for fifteen minutes in the morning just to get out of bed. Injuries such as those suffered by my constituents--and indeed by workers in each one of our States--will be prevented through OSHA's ergonomics standard. What we are talking about is an impact on real people. They are our constituents, our family, our friends, our neighbors. We should not overturn a standard that will help to stop preventable injuries from forever changing the lives of countless Americans who are working to provide their families and themselves with a decent standard of living. I recognize that some industries and small businesses are concerned about the impact, financial and otherwise, that this standard will have on them. I have written to OSHA on behalf of a number of my constituents to communicate their concerns, and I will continue to communicate their concerns regarding the implementation of this standard. Overturning this standard under the Congressional Review Act is not the answer. This resolution does not simply send this standard ``back to the drawing board'' as some have suggested. If we adopt this resolution of disapproval, we will be stripping away all the protections that went into effect on January 16, 2001. It will be as if the 10 years of research, public hearings, and public comments that went into the drafting of this standard had never happened, and OSHA will not be permitted to work to promulgate another ergonomics standard until specifically and affirmatively told to do so by the Congress. Let's be clear what a vote on this issue is. A vote for this resolution is a vote to block any Federal ergonomics standard for the foreseeable future. It is a vote to erase protections that will help to prevent hundreds of thousands of workplace injuries this year alone. It is a vote to require businesses to continue to spend millions of dollars in workers compensation and other costs resulting from senseless injuries that could have been prevented. The Congressional Review Act, which allows no amendment, and which allows only limited debate, is no way to legislate. We should not be doing business this way in the Senate, but we do, and we all know part of the reason why--the wealthy interests who seek to influence the decisions we make on this floor. Thanks to the soft money loophole, wealthy interests with legislative agendas can donate unlimited amounts of soft money to both of our political parties. The results are an undeniable appearance of corruption that taints the work of this Senate, and the ergonomics debate is a perfect example. There are certainly plenty of wealthy interests weighing in on the ergonomics issue. So I think it is time I called my first bankroll of 2001 by sharing with my colleagues and the public some of the unregulated soft money donations being made by interests lobbying for and against overturning the ergonomics rule. Take the American Trucking Association, which has also been a generous soft money donor to the political parties. Along with its affiliates and executives, the American Trucking Association gave more than $404,000 in soft money in the 2000 cycle. They have weighed in against the ergonomics rule, and they do so with the weight of their soft money contributions behind them. The same is true for a host of other associations fighting to see the rule overturned: in the last cycle, the National Soft Drink Association and its executives gave more than $141,000 in soft money, the National Retail Federation doled out more than $101,000 in soft money, and the National Restaurant Association ponied up more than $55,000 in soft money to the parties. To be fair, I will also mention the other side of the soft money coin, the unions that have lobbied to keep the rule in place. They include the AFL-CIO and its affiliates, which gave more than $827,000 in soft money in the last election cycle, and the Teamsters Union and its affiliates, which gave $161,000 during the same period. Repetitive motion injuries can and should be prevented. I strongly believe that we should have a national standard that affords all workers the same protections from these debilitating injuries. We should not overturn this standard. The health and mobility of countless American workers is at stake. I urge my colleagues to support the hundreds of thousands of workers who suffer from repetitive motion injuries each year by opposing this resolution of disapproval. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to voice my support for the Airline Customer Service Improvement Act. I commend Senator McCain for continuing to press this crucial consumer issue before the Senate in a bipartisan manner. I also applaud the efforts of Senator Wyden. Both have been leading advocates for air travelers. I am confident that we can work together to pass a pro-consumer bill into law. I am sure that each and every one of us in this body has experienced his or her fair share of frustration with air travel as have millions of Americans. Whether it's late flights, long lines, or lost luggage, we've all gotten the short end of the stick at one point or another. When it comes to air travel, we are all consumers. And this bill assures the protection of consumer interests. The Airline Customer Service Improvement Act would, among other things, ensure that passengers have the information that they need to make informed choices in their air travel plans. I think we were all encouraged in 1999 when the airlines came out with their own plan to improve customer service. While many of the airlines made improvements and responded to suggestions from the Department of Transportation's Inspector General, much more remains to be done. It is time air travelers' interests once again receive our attention. According to the Department of Transportation, consumer complaints about air travel went up by 14 percent from 1999 to 2000. This, coupled with a 25 percent increase from 1998 to 1999, adds up to an increase of almost 40 percent in two years. These complaints run the gamut: unstable ticket pricing; oversold flights; lost luggage; and flight delays, changes, and cancellations. In addition, in 2000 one in four flights was delayed, canceled, or diverted, affecting about 163 million passengers. Obviously, the airlines are not solely responsible as weather and mechanical breakdowns are part of the business, and of course we need to ensure that we maintain and improve airport infrastructure. But this bill addresses some problems that the airlines can fix. Perhaps of more importance, this bill does so without forcing airlines to compile information that they don't already keep. The bill simply allows air travelers the right to that basic information and the ability to make informed decisions. I am fortunate enough to be a customer of the premier airline when it comes to customer satisfaction and to represent most of its employees. For years, Midwest Express Airlines has been showered with some of the highest airline customer satisfaction ratings in the country. For those of my colleagues who have not yet experienced a flight on Midwest Express, I, and I am sure I speak for the senior Senator from Wisconsin, encourage you to do so. How does Midwest Express continue to maintain these superlative ratings? The answer is simple, it already incorporates some of the provisions spelled out in this bill. Midwest Express already tries to notify its travelers if it anticipates a flight delay, flight change, or flight cancellation. The airline already attempts to make information on oversold flights available to its customers. Midwest Express already makes efforts to allow its customers access to frequent flyer program information. People fly the airline because the airline cares about its customers. These are some of the reasons the airline has been awarded the Consumer Reports Travel Letter Best Airline Award every year from 1992 to 2000; Zagat Airline Survey's #1 Domestic Airline award in 1994 and 1996; Travel & Leisure's World's Best Awards for Best Domestic Airline in 1997, 1998, and 2000; Conde Nast Traveler's Business Travel Awards for Best U.S. Airline in 1998 through 2000; and Conde Nast Traveler Reader's Choice Awards from 1995 through 2000; among many awards. Other airlines should see this bill as a challenge to meet the lofty standards set by airlines like Midwest Express. Air travel is on the rise, but so are air travel complaints. As we enter the summer travel season, we should do what we can to ensure that the flying public is treated fairly. This bill will give our constituents access to the information they need to make wise choices in air travel and help them to avoid frustration, inconvenience, and sometimes costly delays. Airlines truly concerned about their customers should already be making these efforts. I urge my colleagues to join in this effort.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I have joined with the Senior Senator from Connecticut, Mr. Lieberman, as a co-sponsor of legislation he has introduced today to designate the coastal plain of the Arctic Refuge as a wilderness area. I have been a co-sponsor of this bill since I became a member of this body. I am concerned that Congress will be forced to consider whether or not to drill on the coastal plain of the Refuge before we take substantive action about whether or not the area should be designated as wilderness. Establishment of drilling on the coastal plain would be allowing a use on the coastal plain that is generally considered to be incompatible with areas designated as wilderness under the Wilderness Act. I want my colleagues to be aware that this is the situation, and that we are not going to increase the supply of oil in the near term, or reduce today's high gasoline or other high energy prices by drilling in the Refuge. I fear that drilling in the Refuge is being promoted not to help us address our current energy situation. As a member of Budget Committee I fear that this idea is again being proposed so that we can reaping the revenue from the leasing of the coastal plain so that we can entertain large tax cuts. Second, I oppose drilling in the Refuge because it does not advance our domestic energy security. I cannot believe that the American people want energy security at the expense of the protection of a substantial asset such as the Arctic Refuge's coastal plain. I stand ready to work to find other sources of energy, to use existing sources more efficiently, to address consumption and to promote sustainable sources. Third, I oppose drilling in the Refuge because of its potential impact upon existing wilderness, that's right existing wilderness which has already been designated in the Arctic Refuge. East of the coastal plain are 8 million acres that have already been designated as wilderness. We have had very little discussion about the impact of drilling in the Refuge on areas we have already designated and I want colleagues to be aware that the drilling question threatens not only our ability to make future wilderness designations in the Refuge but also could endanger areas that we believed had already protected in the public trust. I want to speak today specifically to colleagues who may be considering the potential of possible oil discoveries in the Arctic National Wildlife Refuge in light of current high oil prices. Colleagues should keep in mind that the Senate's consideration of the coastal plain as a source of oil is not triggered by any new developments or changes in the geology or economics that affect potential development of Arctic resources. The United States Geological Survey has already re-considered those factors in its 1998 re- assessment of the Arctic Refuge coastal plain's oil potential. Rather, the current discussion, in my view, is prompted by the rhetoric and opportunistic efforts of those interests that have long advocated drilling in the Arctic Refuge, to exploit public concern about the current high prices of domestic heating oil, aviation gas and motor fuels. First, I want to address the issue, at the forefront of many of my colleagues' minds, of whether drilling in the Arctic Refuge constitutes a meaningful or appropriate response to the fact that the U.S. oil production is declining and exports are increasing. To answer that question, I want to review some import, export and consumption data compiled by two federal agencies, the Energy Information Agency and the Maritime Administration. I'm sure it will not surprise my colleagues that the last two decades have been marked by a steady decline in total domestic crude oil production, which includes crude oil plus natural gas liquids. Moreover, after a decline in petroleum consumption during the 1980s, oil use is again on the rise. In addition during the 1989-99 period, North Slope production declined from 1.885 million barrels per day to approximately 1.06 million barrels per day; the North Slope thus accounted for three quarters of the total domestic production decline which was a 1.105 million barrels per day decline in production during this period. At the same time that imports are increasing, U.S. export of oil products and crude oil totals nearly 1.0 million barrels per day. Of that total, most, approximately seven barrels out of eight, is refined product. As far as crude exports are concerned, Maritime Agency data indicate that export of Alaska North Slope crude in 1999 averaged about approximately 7.1 percent of total Alaska North Slope production. These data point to the complicated, transnational nature of the world petroleum market, a market in which the U.S. continues to export nearly a million barrels of petroleum products per day, nearly 5 percent of total consumption. In light of the fact that we exist in a global economy, the United States is not likely to be able to produce its way out of the current petroleum shortages. When one looks at the fact that the Middle East possesses the preponderance of world oil reserves, it becomes clear that concerns about increasing use of imported oil might be better addressed by decreasing consumption through conservation and the switch to alternative energy sources. In addition, we have heard, over the course of several debates here on the floor, that the Arctic Refuge has the ``potential'' of yielding 16 billion barrels of oil. I also wanted to address the issue of the likelihood that 16 billion barrels of oil will be discovered beneath the coastal plain of the Arctic Refuge. First of all, that figure represents the outside limit of probabilities for an assessment area that includes the area of the Arctic Refuge coastal plain currently barred from drilling, plus adjacent areas where exploration has taken place. When one just examines the area within the Arctic Refuge that is under consideration, the correct low-probability estimate of oil is 11.8 billion barrels of undiscovered oil , 25 percent less than the 16 billion barrel figure we have heard to date. A field capable of that production has been discovered only once on this continent, at Prudhoe Bay. Moreover, despite recent advances in exploration technology, the U.S. Geological Survey has abandoned the notion of finding a super- giant field and looks instead to the possibility of discovering several much smaller fields beneath the coastal plain of the Arctic Refuge. Rather, the USGS assigns a probability of 5 percent or one chance in twenty, to the possibility that a field of that magnitude will be discovered. The mean estimate for technically recoverable oil is considerably lower and the figure for oil that is economically recoverable is lower still. In fact, the USGS concluded that it would expect to find four fields scattered across the refuge capable of producing, altogether, approximately 3.2 billion barrels of oil, one fifth the amount of oil that we have heard might be available. However, even if one accepts a higher number for the coastal plain's petroleum potential, members of this body need seriously to consider whether there is any connection between oil that might be found in the Arctic Refuge and the current high prices of petroleum products. I feel, simply, that the Arctic Refuge is not a solution to the current situation. For starters, it might take a decade to bring to market any oil that might be discovered in the Arctic Refuge. Exploration, discovery and assessment, field design and installation and pipeline design and construction are all time-consuming endeavors. The people of Wisconsin want lower gas prices now, not ten years from now. Moreover, the price of oil is determined by global supply and demand factors, not by the presence or absence of an individual oil field. Consider the case of Prudhoe Bay. In 1976, the year before the nation's largest oil field, the largest ever discovered in North America entered production, a barrel of West Texas intermediate crude oil sold for $12.65 and standard gasoline averaged $0.59 per gallon. Two years later, with Prudhoe Bay adding more than a million barrels per day to domestic supply in 1978, West Texas crude had increased by more than 15 percent, to $14.85 per barrel, and gasoline averaged nearly $0.63 per gallon. During the next two years, as Prudhoe production increased, oil prices skyrocketed to $37.37 per barrel, while gasoline nearly doubled, to $1.19 per gallon. In 1985, with Prudhoe Bay and Kuparuk both operating at full throttle, a barrel of West Texas crude sold for more than $28.00 per barrel and gasoline averaged $1.12 per gallon. So Mr. President, if drilling may impair our ability to make a decision about the wilderness-qualities of the Refuge in the future, if the Refuge does not contain as much oil as we thought, and if opening the coastal plain to drilling may do little to impact our current domestic prices, why are we considering doing so? The facts don't point toward drilling in the Refuge: the Refuge may not contain as much oil as we think, and opening the coastal plain to drilling may have only a minor impact on our current domestic prices. Finally, I have concerns about the arguments that I have heard in recent days that oil drilling and environmental protection are compatible. Only days ago I was traveling through the Niger Delta region of Nigeria by boat, where I observed firsthand the environmental devastation caused by the oil industry. The terrible stillness of an environment that should be teeming with life made a very powerful impression on me. These are the same multinational companies that have access to the same kinds of technologies, and though they are operating in a vastly different regulatory regime, I was profoundly struck by the environmental legacy of oil development in another ecologically rich coastal area. For these reasons, I support my colleague from Connecticut. I appreciate the fundamental concern that we need to develop a new energy strategy for this country. However, I disagree strongly when drilling would occur in this particular location which I feel is deserving of wilderness designation.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I have joined with the Senior Senator from Connecticut, Mr. Lieberman, as a co-sponsor of legislation he has introduced today to designate the coastal plain of the Arctic Refuge as a wilderness area. I have been a co-sponsor of this bill since I became a member of this body. I am concerned that Congress will be forced to consider whether or not to drill on the coastal plain of the Refuge before we take substantive action about whether or not the area should be designated as wilderness. Establishment of drilling on the coastal plain would be allowing a use on the coastal plain that is generally considered to be incompatible with areas designated as wilderness under the Wilderness Act. I want my colleagues to be aware that this is the situation, and that we are not going to increase the supply of oil in the near term, or reduce today's high gasoline or other high energy prices by drilling in the Refuge. I fear that drilling in the Refuge is being promoted not to help us address our current energy situation. As a member of Budget Committee I fear that this idea is again being proposed so that we can reaping the revenue from the leasing of the coastal plain so that we can entertain large tax cuts. Second, I oppose drilling in the Refuge because it does not advance our domestic energy security. I cannot believe that the American people want energy security at the expense of the protection of a substantial asset such as the Arctic Refuge's coastal plain. I stand ready to work to find other sources of energy, to use existing sources more efficiently, to address consumption and to promote sustainable sources. Third, I oppose drilling in the Refuge because of its potential impact upon existing wilderness, that's right existing wilderness which has already been designated in the Arctic Refuge. East of the coastal plain are 8 million acres that have already been designated as wilderness. We have had very little discussion about the impact of drilling in the Refuge on areas we have already designated and I want colleagues to be aware that the drilling question threatens not only our ability to make future wilderness designations in the Refuge but also could endanger areas that we believed had already protected in the public trust. I want to speak today specifically to colleagues who may be considering the potential of possible oil discoveries in the Arctic National Wildlife Refuge in light of current high oil prices. Colleagues should keep in mind that the Senate's consideration of the coastal plain as a source of oil is not triggered by any new developments or changes in the geology or economics that affect potential development of Arctic resources. The United States Geological Survey has already re-considered those factors in its 1998 re- assessment of the Arctic Refuge coastal plain's oil potential. Rather, the current discussion, in my view, is prompted by the rhetoric and opportunistic efforts of those interests that have long advocated drilling in the Arctic Refuge, to exploit public concern about the current high prices of domestic heating oil, aviation gas and motor fuels. First, I want to address the issue, at the forefront of many of my colleagues' minds, of whether drilling in the Arctic Refuge constitutes a meaningful or appropriate response to the fact that the U.S. oil production is declining and exports are increasing. To answer that question, I want to review some import, export and consumption data compiled by two federal agencies, the Energy Information Agency and the Maritime Administration. I'm sure it will not surprise my colleagues that the last two decades have been marked by a steady decline in total domestic crude oil production, which includes crude oil plus natural gas liquids. Moreover, after a decline in petroleum consumption during the 1980s, oil use is again on the rise. In addition during the 1989-99 period, North Slope production declined from 1.885 million barrels per day to approximately 1.06 million barrels per day; the North Slope thus accounted for three quarters of the total domestic production decline which was a 1.105 million barrels per day decline in production during this period. At the same time that imports are increasing, U.S. export of oil products and crude oil totals nearly 1.0 million barrels per day. Of that total, most, approximately seven barrels out of eight, is refined product. As far as crude exports are concerned, Maritime Agency data indicate that export of Alaska North Slope crude in 1999 averaged about approximately 7.1 percent of total Alaska North Slope production. These data point to the complicated, transnational nature of the world petroleum market, a market in which the U.S. continues to export nearly a million barrels of petroleum products per day, nearly 5 percent of total consumption. In light of the fact that we exist in a global economy, the United States is not likely to be able to produce its way out of the current petroleum shortages. When one looks at the fact that the Middle East possesses the preponderance of world oil reserves, it becomes clear that concerns about increasing use of imported oil might be better addressed by decreasing consumption through conservation and the switch to alternative energy sources. In addition, we have heard, over the course of several debates here on the floor, that the Arctic Refuge has the ``potential'' of yielding 16 billion barrels of oil. I also wanted to address the issue of the likelihood that 16 billion barrels of oil will be discovered beneath the coastal plain of the Arctic Refuge. First of all, that figure represents the outside limit of probabilities for an assessment area that includes the area of the Arctic Refuge coastal plain currently barred from drilling, plus adjacent areas where exploration has taken place. When one just examines the area within the Arctic Refuge that is under consideration, the correct low-probability estimate of oil is 11.8 billion barrels of undiscovered oil , 25 percent less than the 16 billion barrel figure we have heard to date. A field capable of that production has been discovered only once on this continent, at Prudhoe Bay. Moreover, despite recent advances in exploration technology, the U.S. Geological Survey has abandoned the notion of finding a super- giant field and looks instead to the possibility of discovering several much smaller fields beneath the coastal plain of the Arctic Refuge. Rather, the USGS assigns a probability of 5 percent or one chance in twenty, to the possibility that a field of that magnitude will be discovered. The mean estimate for technically recoverable oil is considerably lower and the figure for oil that is economically recoverable is lower still. In fact, the USGS concluded that it would expect to find four fields scattered across the refuge capable of producing, altogether, approximately 3.2 billion barrels of oil, one fifth the amount of oil that we have heard might be available. However, even if one accepts a higher number for the coastal plain's petroleum potential, members of this body need seriously to consider whether there is any connection between oil that might be found in the Arctic Refuge and the current high prices of petroleum products. I feel, simply, that the Arctic Refuge is not a solution to the current situation. For starters, it might take a decade to bring to market any oil that might be discovered in the Arctic Refuge. Exploration, discovery and assessment, field design and installation and pipeline design and construction are all time-consuming endeavors. The people of Wisconsin want lower gas prices now, not ten years from now. Moreover, the price of oil is determined by global supply and demand factors, not by the presence or absence of an individual oil field. Consider the case of Prudhoe Bay. In 1976, the year before the nation's largest oil field, the largest ever discovered in North America entered production, a barrel of West Texas intermediate crude oil sold for $12.65 and standard gasoline averaged $0.59 per gallon. Two years later, with Prudhoe Bay adding more than a million barrels per day to domestic supply in 1978, West Texas crude had increased by more than 15 percent, to $14.85 per barrel, and gasoline averaged nearly $0.63 per gallon. During the next two years, as Prudhoe production increased, oil prices skyrocketed to $37.37 per barrel, while gasoline nearly doubled, to $1.19 per gallon. In 1985, with Prudhoe Bay and Kuparuk both operating at full throttle, a barrel of West Texas crude sold for more than $28.00 per barrel and gasoline averaged $1.12 per gallon. So Mr. President, if drilling may impair our ability to make a decision about the wilderness-qualities of the Refuge in the future, if the Refuge does not contain as much oil as we thought, and if opening the coastal plain to drilling may do little to impact our current domestic prices, why are we considering doing so? The facts don't point toward drilling in the Refuge: the Refuge may not contain as much oil as we think, and opening the coastal plain to drilling may have only a minor impact on our current domestic prices. Finally, I have concerns about the arguments that I have heard in recent days that oil drilling and environmental protection are compatible. Only days ago I was traveling through the Niger Delta region of Nigeria by boat, where I observed firsthand the environmental devastation caused by the oil industry. The terrible stillness of an environment that should be teeming with life made a very powerful impression on me. These are the same multinational companies that have access to the same kinds of technologies, and though they are operating in a vastly different regulatory regime, I was profoundly struck by the environmental legacy of oil development in another ecologically rich coastal area. For these reasons, I support my colleague from Connecticut. I appreciate the fundamental concern that we need to develop a new energy strategy for this country. However, I disagree strongly when drilling would occur in this particular location which I feel is deserving of wilderness designation.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I am introducing the Osprey Safety, Performance, and Reliability Evaluation Act of 2001. This legislation would delay the procurement of the V-22 Osprey tilt-rotor aircraft for one year, and would require reports from the Secretary of the Navy and the Department of Defense's Inspector General regarding the program. The Osprey is an experimental tilt-rotor aircraft that takes off and lands like a helicopter, but flies like an airplane by tilting its wing-mounted rotors forward to serve as propellers. The premise for the aircraft is to combine the operational flexibility of a helicopter with the speed, range, and efficiency of a fixed-wing aircraft. The Marines, Air Force, and Navy all want to purchase versions of this aircraft. The MV-22 would be used by the Marines for missions such as troop and cargo transport and amphibious assault; the CV-22 would be used by the Air Force for special operations; and the HV-22 would be used by the Navy for search and rescue missions. I want to be very clear. This bill does not terminate the V-22 program. It does not affect the Marine Corps' ability to continue the research, development, testing, and evaluation of this aircraft. This bill delays the start of full-rate procurement of the MV-22 Osprey, the Marines' version of this aircraft, for one year. It also delays the procurement of four CV-22s, the Air Force's version of this aircraft, for one year. There are serious allegations and serious questions surrounding the V-22 program. Thirty Marines have died in Osprey crashes since 1991. Many questions regarding the validity of maintenance records and the safety and viability of this aircraft remain unanswered. We cannot, in good conscience, move forward with the full-scale procurement of the MV-22 until these allegations have been investigated fully and until these questions have been answered. We should not move forward with the procurement of this aircraft until further testing has been done to address potentially serious design flaws that could continue to endanger the lives of our military personnel. We owe it to our men and women in uniform to put their safety first. They are willing to go into harm's way while serving their country. That service should not include being put into harm's way by a potentially unsafe aircraft. We should not move forward with the procurement of an aircraft that crashed as recently as December. We should not procure this aircraft until the Department of Defense is absolutely certain that all major design flaws have been corrected. The legislation that I am introducing today will delay full-rate production of the MV-22 for one year. This delay is prudent given the ongoing controversy that has loomed over this program during the last weeks and months. I want to reiterate that this legislation does not require the Department of Defense to terminate the Osprey program. I appreciate the importance of this program to the Marine Corps. I agree that they need to replace the aging CH-46 Sea Knight helicopters that they currently have. However, I am not sure that the Osprey is the safest and most cost-effective alternative to the Sea Knight. I know that the leaders of the Marines and the Air Force have the greatest concern for the safety of their personnel who are and who will be assigned to the Osprey program. I share that concern. My bill would require the Marine Corps to wait one year to move to full-rate production of the MV-22. Because the airframes for the MV-22 and the CV-22 are 90 percent similar, it follows that the four CV-22s the Air Force plans to buy this year may be subject to many of the same design flaws that have been found in the MV-22. For that reason, my bill would also require the Air Force to wait one year to procure the four CV-22s, which would be used to train their pilots. I realize that an effort is being made to address the design flaws found during testing of this aircraft resulting in some changes in the new planes that are scheduled to go into production in fiscal year 2001. However, I remain concerned about the many unanswered questions, and the potentially costly retrofits that these aircraft would require as more information about the safety and reliability of the Osprey continues to come to light. In my view, it would be more prudent and more cost effective to wait to move to full-rate production until these questions have been answered. For those reasons, my bill rescinds most of the fiscal year 2001 procurement funds for the MV-22 and the CV-22, but leaves enough funding in place to maintain the integrity of the production line. These rescissions would return to the taxpayers more than $1.2 billion dollars. This kind of investment should not go forward until we are sure that the Osprey is safe. The bill does not affect the $148 million in research and development funding for this program. During the next year, vigorous research and testing on the problems that remain should continue once the decision has been made to resume test flights. This program has a troubled history. Thirty Marines have been killed in Osprey crashes since 1991, twenty-three of them in the past eleven months alone. The Osprey program has been grounded since the December crash that killed four Marines. Following that crash, former Secretary of Defense William Cohen appointed a blue ribbon panel to study the Osprey program. That panel's report is due to be presented to Secretary of Defense Rumsfeld in March or April of this year. In addition, two investigations on the December crash are ongoing. The safety of our men and women in uniform should be the top priority every time the Department of Defense develops and procures new technology, whether it be weapons, ships, or aircraft. During his tenure as Secretary of Defense, Vice President Cheney tried to cancel the V-22 program in each of his budget requests from fiscal year 1990 through 1993 because he believed the program was too costly. Congress disagreed, and the program continued to receive funds. When asked about the Osprey program last month, the Vice President said, ``Given the track record and the loss of life so far, it would appear to me that there are very serious questions that can and should be--and I hope will be--raised about the Osprey.'' I agree with Vice President Cheney's statement, and I hope that this legislation will help to get answers to these serious concerns. One additional concern about this program is its cost. The Marines, the Air Force, and the Navy each want to buy a version of this aircraft, for a total of 458 aircraft at a cost of $38.1 billion, or about $83 million per Osprey. Some defense observers have argued that the mission of the Osprey could be performed by less costly helicopters. Another concern is the safety of the aircraft. One of the newspapers in my home state of Wisconsin, the Milwaukee Journal Sentinel, has called the Osprey a ``lemon with wings.'' Is that a fair description? There is reason to pause and take a good look at the program and find out. In addition to the four crashes that have occurred since 1991, there are also a number of unanswered questions regarding the design and performance of the aircraft. The MV-22 underwent operational evaluation, OPEVAL, between October 1999 and August 2000. During OPEVAL, in June 2000, a draft DoD Inspector General's report cited 23 major operational effectiveness and suitability requirements that would not be met prior to the scheduled December 2000 Milestone III decision on whether to enter into full-rate production of the MV-22 in June 2001. The Marine Corps conceded that these problems exist, and said they had been aware of these deficiencies prior to the beginning of the OPEVAL. In October 2000, the Navy announced that the MV-22 had been judged operationally effective and suitable for land-based operations. In November 2000, the MV-22 was also judged operationally effective and suitable for sea-based operations. Following the completion of OPEVAL, the Department of Defense's Director of Operational Testing and Evaluation, Philip Coyle, released his report on the MV-22. This report, which was issued on November 17, 2000, makes a number of recommendations regarding further testing that should be conducted on this aircraft, including testing on a number of requirements for the aircraft that were waived during OPEVAL. Particularly troubling are the MV-22's Mission Capable, MC, and Full Mission Capable, FMC, rates at the end of OPEVAL. These ratings demonstrate the availability of the aircraft--the amount of time that each MV-22 is able to fly versus the amount of time that each MV-22 is unavailable due to maintenance needs. The Mission Capable rating represents the percentage of time that the test aircraft were able to perform at least one of their assigned missions. The Marine Corps' objective for the MC rate is between 82 and 87 percent. At the end of OPEVAL, the MC rate for the MV-22 was 49 percent. That means, Mr. President, that the MV-22 test fleet was capable of performing at least one of its missions only 49 percent of the time during OPEVAL. From 1995-1999, the entire CH-46 fleet Sea Knight fleet, which the Osprey is supposed to replace, was rated Mission Capable 79 percent of the time. The Full Mission Capable rate, FMC, is defined as the percentage of time that the aircraft could perform all of its assigned missions. The Marine Corps' objective for FMC is 75 percent. At the end of OPEVAL, the MV-22 had a FMC rate of only 20 percent. From 1995-1999, the CH-46 fleet had a FMC rate of 74 percent. I want to say this again--at the end of OPEVAL, the MV-22 test fleet was capable of performing all of its assigned missions only 20 percent of the time. The Coyle report says that part of this low rating can be attributed to problems with the blade fold wing stow, BFWS, system, and that measures to address this problem will be incorporated into all new MV-22s. While both the MC and the FMC both improved over the course of OPEVAL, both rates are still well below the Marines' own requirements. By delaying the full rate production of the MV-22 for one year, the Marines will have the opportunity to further improve these crucial rates, including testing the modifications to the BFWS system, and potentially save countless maintenance hours and costs over the life of this program. In addition to the problems outlined in the Coyle report, a General Accounting Office report released last month titled ``Major Management Challenges and Program Risks: Department of Defense'' also expresses concern about the Osprey program. The report states that ``the DoD . . . begins production on many major and nonmajor weapons without first ensuring that the systems will meet critical performance requirements.'' The report cites a number of examples, including the Osprey. GAO reports that ``the Navy was moving toward a full-rate production decision on the MV-22 Osprey aircraft without having an appropriate level of confidence that the program would meet design parameters as well as cost and schedule objectives.'' This finding is just another of the many reasons why the full-rate procurement of the MV-22 and the procurement of four CV-22s should be delayed. I share GAO's concern about the frequency with which DoD moves into full-rate production of systems that may not have been adequately tested. This rush to production often raises safety concerns and costs the taxpayers large sums for costly retrofits to address problems that were often evident--but not fixed--before full-rate production began. And even if the Osprey is proven to be safe, questions still remain about its cost. I am also deeply troubled by the allegations that the Commander of the Marine Tilt-Rotor Training Squadron 204 may have ordered his team to falsify maintenance records for the MV-22. An anonymous DoD whistle blower released a letter and documentation, including an audio tape on which it is reported that the Commander is heard telling his squadron to ``lie'' about maintenance reports on the MV-22 until the Milestone III decision to move into full-rate production of the aircraft had been made. This decision was scheduled to be made in December 2000, but has been postponed indefinitely. The Commander has been relieved of his command pending a full investigation by the DoD Inspector General's office. There have been reports that high-ranking Marine Corps officers may have known about the low MC and FMC rates for the MV-22 in November 2000, and that one of them may have released inaccurate information to the press regarding the Mission Capable rates of the MV-22. An electronic mail message from one of these officers to a superior officer dated November 11, 2000, states that the information regarding the MV-22 MC and FMC rates for November contained in the message should be ``close held'' and that the MC and FMC rates for Squadron 204 were 26.7 percent and 7.9 percent, respectively. The message also said that the sender ``had hoped to be able to use some recent numbers next month when [his superior] meet[s] with Dr. Buchanan for his Milestone III/FRP decision in December . . . this isn't going to help.'' Later that month, on November 30, 2000, the officer who reportedly sent that electronic mail message participated in a DoD press briefing at which the Osprey was discussed in some detail. During this press briefing, the officer said the following regarding the Mission Capable rates of the MV-22s being tested by Squadron 204: ``. . . as I was walking down here [to the briefing], I pulled the first 13 days of November, mission-capable rate on those airplanes, and the average is 73.2 percent for the first 13 days in November of those nine airplanes. So when we start talking about the airplane, even since OPEVAL, improving and getting better, the answer is it is absolutely a resounding yes.'' This information is contrary to the electronic mail message that the officer in question reportedly sent to a superior officer only nine days before, which stated that the MC rate for the MV-22s being tested by Squadron 204 for November 2000 was only 26.7 percent. That is a difference of 46.5 percent. News reports last week said that the officer admitted sending the message and attributes the discrepancy in the MC rate figures to a new software system. I understand that these very serious allegations are still being investigated, and I agree that all of those involved deserve a fair and impartial investigation. We should not rush to judgement about the alleged conduct of any of these personnel, all of whom who have dedicated their lives to serving and protecting this country. However, we must remain cognizant of the fact that the outcome of this investigation could have an enormous impact on the Osprey program. This still unfolding situation is another reason why the full rate procurement of the MV-22 should be delayed. Until these disturbing allegations have been fully investigated to determine whether records were falsified in order to make the Osprey appear safe and reliable, the Department of Defense should not move ahead with this program. Because of the safety concerns outlined above, Mr. President, my bill requires the Secretary of the Navy to submit a report to the Congress on the V-22 program that includes: a description of the planned uses for the fiscal year 2001 research and development funding for the Osprey program; a description of the actions taken as a result of the Coyle report; and a description of the manner in which the Navy and the Marine Corps have responded to the allegations of the falsification of maintenance records at Squadron 204. The bill also requires the DoD Inspector General to report to the Congress on the results of its investigation into the alleged falsification of maintenance records at Squadron 204. It would require that these reports be submitted three months after the enactment of this legislation or on the date of the Milestone III decision regarding full-rate production of the MV-22 Osprey, whichever is earlier. The safety of our men and women in uniform should be the principle that guides this important decision. We should not begin to procure the MV-22 in mass quantities until we know for certain that this aircraft is safe, that its maintenance records are accurate, and that the design flaws described in the Coyle report have been adequately addressed. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I am introducing the Osprey Safety, Performance, and Reliability Evaluation Act of 2001. This legislation would delay the procurement of the V-22 Osprey tilt-rotor aircraft for one year, and would require reports from the Secretary of the Navy and the Department of Defense's Inspector General regarding the program. The Osprey is an experimental tilt-rotor aircraft that takes off and lands like a helicopter, but flies like an airplane by tilting its wing-mounted rotors forward to serve as propellers. The premise for the aircraft is to combine the operational flexibility of a helicopter with the speed, range, and efficiency of a fixed-wing aircraft. The Marines, Air Force, and Navy all want to purchase versions of this aircraft. The MV-22 would be used by the Marines for missions such as troop and cargo transport and amphibious assault; the CV-22 would be used by the Air Force for special operations; and the HV-22 would be used by the Navy for search and rescue missions. I want to be very clear. This bill does not terminate the V-22 program. It does not affect the Marine Corps' ability to continue the research, development, testing, and evaluation of this aircraft. This bill delays the start of full-rate procurement of the MV-22 Osprey, the Marines' version of this aircraft, for one year. It also delays the procurement of four CV-22s, the Air Force's version of this aircraft, for one year. There are serious allegations and serious questions surrounding the V-22 program. Thirty Marines have died in Osprey crashes since 1991. Many questions regarding the validity of maintenance records and the safety and viability of this aircraft remain unanswered. We cannot, in good conscience, move forward with the full-scale procurement of the MV-22 until these allegations have been investigated fully and until these questions have been answered. We should not move forward with the procurement of this aircraft until further testing has been done to address potentially serious design flaws that could continue to endanger the lives of our military personnel. We owe it to our men and women in uniform to put their safety first. They are willing to go into harm's way while serving their country. That service should not include being put into harm's way by a potentially unsafe aircraft. We should not move forward with the procurement of an aircraft that crashed as recently as December. We should not procure this aircraft until the Department of Defense is absolutely certain that all major design flaws have been corrected. The legislation that I am introducing today will delay full-rate production of the MV-22 for one year. This delay is prudent given the ongoing controversy that has loomed over this program during the last weeks and months. I want to reiterate that this legislation does not require the Department of Defense to terminate the Osprey program. I appreciate the importance of this program to the Marine Corps. I agree that they need to replace the aging CH-46 Sea Knight helicopters that they currently have. However, I am not sure that the Osprey is the safest and most cost-effective alternative to the Sea Knight. I know that the leaders of the Marines and the Air Force have the greatest concern for the safety of their personnel who are and who will be assigned to the Osprey program. I share that concern. My bill would require the Marine Corps to wait one year to move to full-rate production of the MV-22. Because the airframes for the MV-22 and the CV-22 are 90 percent similar, it follows that the four CV-22s the Air Force plans to buy this year may be subject to many of the same design flaws that have been found in the MV-22. For that reason, my bill would also require the Air Force to wait one year to procure the four CV-22s, which would be used to train their pilots. I realize that an effort is being made to address the design flaws found during testing of this aircraft resulting in some changes in the new planes that are scheduled to go into production in fiscal year 2001. However, I remain concerned about the many unanswered questions, and the potentially costly retrofits that these aircraft would require as more information about the safety and reliability of the Osprey continues to come to light. In my view, it would be more prudent and more cost effective to wait to move to full-rate production until these questions have been answered. For those reasons, my bill rescinds most of the fiscal year 2001 procurement funds for the MV-22 and the CV-22, but leaves enough funding in place to maintain the integrity of the production line. These rescissions would return to the taxpayers more than $1.2 billion dollars. This kind of investment should not go forward until we are sure that the Osprey is safe. The bill does not affect the $148 million in research and development funding for this program. During the next year, vigorous research and testing on the problems that remain should continue once the decision has been made to resume test flights. This program has a troubled history. Thirty Marines have been killed in Osprey crashes since 1991, twenty-three of them in the past eleven months alone. The Osprey program has been grounded since the December crash that killed four Marines. Following that crash, former Secretary of Defense William Cohen appointed a blue ribbon panel to study the Osprey program. That panel's report is due to be presented to Secretary of Defense Rumsfeld in March or April of this year. In addition, two investigations on the December crash are ongoing. The safety of our men and women in uniform should be the top priority every time the Department of Defense develops and procures new technology, whether it be weapons, ships, or aircraft. During his tenure as Secretary of Defense, Vice President Cheney tried to cancel the V-22 program in each of his budget requests from fiscal year 1990 through 1993 because he believed the program was too costly. Congress disagreed, and the program continued to receive funds. When asked about the Osprey program last month, the Vice President said, ``Given the track record and the loss of life so far, it would appear to me that there are very serious questions that can and should be--and I hope will be--raised about the Osprey.'' I agree with Vice President Cheney's statement, and I hope that this legislation will help to get answers to these serious concerns. One additional concern about this program is its cost. The Marines, the Air Force, and the Navy each want to buy a version of this aircraft, for a total of 458 aircraft at a cost of $38.1 billion, or about $83 million per Osprey. Some defense observers have argued that the mission of the Osprey could be performed by less costly helicopters. Another concern is the safety of the aircraft. One of the newspapers in my home state of Wisconsin, the Milwaukee Journal Sentinel, has called the Osprey a ``lemon with wings.'' Is that a fair description? There is reason to pause and take a good look at the program and find out. In addition to the four crashes that have occurred since 1991, there are also a number of unanswered questions regarding the design and performance of the aircraft. The MV-22 underwent operational evaluation, OPEVAL, between October 1999 and August 2000. During OPEVAL, in June 2000, a draft DoD Inspector General's report cited 23 major operational effectiveness and suitability requirements that would not be met prior to the scheduled December 2000 Milestone III decision on whether to enter into full-rate production of the MV-22 in June 2001. The Marine Corps conceded that these problems exist, and said they had been aware of these deficiencies prior to the beginning of the OPEVAL. In October 2000, the Navy announced that the MV-22 had been judged operationally effective and suitable for land-based operations. In November 2000, the MV-22 was also judged operationally effective and suitable for sea-based operations. Following the completion of OPEVAL, the Department of Defense's Director of Operational Testing and Evaluation, Philip Coyle, released his report on the MV-22. This report, which was issued on November 17, 2000, makes a number of recommendations regarding further testing that should be conducted on this aircraft, including testing on a number of requirements for the aircraft that were waived during OPEVAL. Particularly troubling are the MV-22's Mission Capable, MC, and Full Mission Capable, FMC, rates at the end of OPEVAL. These ratings demonstrate the availability of the aircraft--the amount of time that each MV-22 is able to fly versus the amount of time that each MV-22 is unavailable due to maintenance needs. The Mission Capable rating represents the percentage of time that the test aircraft were able to perform at least one of their assigned missions. The Marine Corps' objective for the MC rate is between 82 and 87 percent. At the end of OPEVAL, the MC rate for the MV-22 was 49 percent. That means, Mr. President, that the MV-22 test fleet was capable of performing at least one of its missions only 49 percent of the time during OPEVAL. From 1995-1999, the entire CH-46 fleet Sea Knight fleet, which the Osprey is supposed to replace, was rated Mission Capable 79 percent of the time. The Full Mission Capable rate, FMC, is defined as the percentage of time that the aircraft could perform all of its assigned missions. The Marine Corps' objective for FMC is 75 percent. At the end of OPEVAL, the MV-22 had a FMC rate of only 20 percent. From 1995-1999, the CH-46 fleet had a FMC rate of 74 percent. I want to say this again--at the end of OPEVAL, the MV-22 test fleet was capable of performing all of its assigned missions only 20 percent of the time. The Coyle report says that part of this low rating can be attributed to problems with the blade fold wing stow, BFWS, system, and that measures to address this problem will be incorporated into all new MV-22s. While both the MC and the FMC both improved over the course of OPEVAL, both rates are still well below the Marines' own requirements. By delaying the full rate production of the MV-22 for one year, the Marines will have the opportunity to further improve these crucial rates, including testing the modifications to the BFWS system, and potentially save countless maintenance hours and costs over the life of this program. In addition to the problems outlined in the Coyle report, a General Accounting Office report released last month titled ``Major Management Challenges and Program Risks: Department of Defense'' also expresses concern about the Osprey program. The report states that ``the DoD . . . begins production on many major and nonmajor weapons without first ensuring that the systems will meet critical performance requirements.'' The report cites a number of examples, including the Osprey. GAO reports that ``the Navy was moving toward a full-rate production decision on the MV-22 Osprey aircraft without having an appropriate level of confidence that the program would meet design parameters as well as cost and schedule objectives.'' This finding is just another of the many reasons why the full-rate procurement of the MV-22 and the procurement of four CV-22s should be delayed. I share GAO's concern about the frequency with which DoD moves into full-rate production of systems that may not have been adequately tested. This rush to production often raises safety concerns and costs the taxpayers large sums for costly retrofits to address problems that were often evident--but not fixed--before full-rate production began. And even if the Osprey is proven to be safe, questions still remain about its cost. I am also deeply troubled by the allegations that the Commander of the Marine Tilt-Rotor Training Squadron 204 may have ordered his team to falsify maintenance records for the MV-22. An anonymous DoD whistle blower released a letter and documentation, including an audio tape on which it is reported that the Commander is heard telling his squadron to ``lie'' about maintenance reports on the MV-22 until the Milestone III decision to move into full-rate production of the aircraft had been made. This decision was scheduled to be made in December 2000, but has been postponed indefinitely. The Commander has been relieved of his command pending a full investigation by the DoD Inspector General's office. There have been reports that high-ranking Marine Corps officers may have known about the low MC and FMC rates for the MV-22 in November 2000, and that one of them may have released inaccurate information to the press regarding the Mission Capable rates of the MV-22. An electronic mail message from one of these officers to a superior officer dated November 11, 2000, states that the information regarding the MV-22 MC and FMC rates for November contained in the message should be ``close held'' and that the MC and FMC rates for Squadron 204 were 26.7 percent and 7.9 percent, respectively. The message also said that the sender ``had hoped to be able to use some recent numbers next month when [his superior] meet[s] with Dr. Buchanan for his Milestone III/FRP decision in December . . . this isn't going to help.'' Later that month, on November 30, 2000, the officer who reportedly sent that electronic mail message participated in a DoD press briefing at which the Osprey was discussed in some detail. During this press briefing, the officer said the following regarding the Mission Capable rates of the MV-22s being tested by Squadron 204: ``. . . as I was walking down here [to the briefing], I pulled the first 13 days of November, mission-capable rate on those airplanes, and the average is 73.2 percent for the first 13 days in November of those nine airplanes. So when we start talking about the airplane, even since OPEVAL, improving and getting better, the answer is it is absolutely a resounding yes.'' This information is contrary to the electronic mail message that the officer in question reportedly sent to a superior officer only nine days before, which stated that the MC rate for the MV-22s being tested by Squadron 204 for November 2000 was only 26.7 percent. That is a difference of 46.5 percent. News reports last week said that the officer admitted sending the message and attributes the discrepancy in the MC rate figures to a new software system. I understand that these very serious allegations are still being investigated, and I agree that all of those involved deserve a fair and impartial investigation. We should not rush to judgement about the alleged conduct of any of these personnel, all of whom who have dedicated their lives to serving and protecting this country. However, we must remain cognizant of the fact that the outcome of this investigation could have an enormous impact on the Osprey program. This still unfolding situation is another reason why the full rate procurement of the MV-22 should be delayed. Until these disturbing allegations have been fully investigated to determine whether records were falsified in order to make the Osprey appear safe and reliable, the Department of Defense should not move ahead with this program. Because of the safety concerns outlined above, Mr. President, my bill requires the Secretary of the Navy to submit a report to the Congress on the V-22 program that includes: a description of the planned uses for the fiscal year 2001 research and development funding for the Osprey program; a description of the actions taken as a result of the Coyle report; and a description of the manner in which the Navy and the Marine Corps have responded to the allegations of the falsification of maintenance records at Squadron 204. The bill also requires the DoD Inspector General to report to the Congress on the results of its investigation into the alleged falsification of maintenance records at Squadron 204. It would require that these reports be submitted three months after the enactment of this legislation or on the date of the Milestone III decision regarding full-rate production of the MV-22 Osprey, whichever is earlier. The safety of our men and women in uniform should be the principle that guides this important decision. We should not begin to procure the MV-22 in mass quantities until we know for certain that this aircraft is safe, that its maintenance records are accurate, and that the design flaws described in the Coyle report have been adequately addressed. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. I object.

Mr. FEINGOLD. I suggest the absence of a quorum.

Mr. FEINGOLD. Reserving the right to object.

Mr. FEINGOLD. I suggest the absence of a quorum.

Mr. FEINGOLD

Mr. FEINGOLD. I thank the leader for his comments, and I want to assure him that supporters of this bill are ready to work through the weekend and into the evenings to make sure that this bill passes the Senate in a timely manner. I think the American people will applaud the leader's statement that he does not anticipate a filibuster on this important legislation. I think we have reached a fair and balanced agreement, and I congratulate the leader and my colleague from Arizona for this achievement.

Mr. FEINGOLD. Mr. President, reserving the right to object, I would like to see a copy of that colloquy.

Mr. FEINGOLD. Mr. President, I would like to see a copy of the colloquy that was just referred to before agreeing to unanimous consent that it be printed in the Record.

Mr. FEINGOLD. If I could make a brief comment, as did my leader, Senator McCain, I thank the majority leader for his cooperation on this, coming to this agreement. I especially thank the Democratic leader, who has not only provided our Democratic unity on this issue, but has also worked so effectively to help us come to this agreement. I also thank the Senator from Michigan, Mr. Levin, who is not with us on the floor at this time, for his tremendous efforts on this. I reiterate two points the Senator from Arizona has made. One is that this, fortunately, through the cooperation of everybody, will be a truly open process. Senator McCain and I have been very involved in this issue. But we are certainly not the only people who know a lot about this issue. Every Member of the Senate is an expert on campaign finance reform. That means it is essential that every Senator have an open chance to participate in the amending process. I believe that is what this agreement truly does. The second is to simply agree with the Senator from Arizona that we want to finish as fast as we can, within the bounds of giving everybody a chance to participate. We hope to finish before the Easter recess. But we will make sure that this matter comes to a vote up or down in the end and that is our understanding in going forward with this agreement. I thank the leader.

Mr. FEINGOLD. Mr. Leader, I just want to add that I am very pleased that this agreement has been worked out in a cooperative way with Senator McCain and also the Democratic leader. I also want to thank Senator Levin for his contribution to this agreement. We look forward to having a full and fair debate on our bill for the first time.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, as my colleagues know, I shall vote to confirm Senator Ashcroft. I discussed the reasons for my doing so in my statement before the Judiciary Committee. At that meeting, I said: My colleagues, when we vote today, I'm going to do what I sincerely believe to be the right thing to do: vote for confirmation of John Ashcroft as Attorney General of the United States. For many of my colleagues, friends, supporters, and constituents, this is not easy to understand. And some see it as terribly wrong. After all, my voting record and that of John Ashcroft could hardly be more different, and there is no question that the opposition has raised significant and serious concerns about the appropriateness of this nomination. Let me begin by noting a few positive aspects of former Senator John Ashcroft's positions and responses to questions at his hearing on two issues I care deeply about. On racial profiling, as I said at the outset of the hearing on Sen. Ashcroft's nomination, during the last Congress I found him more receptive to my concerns about the issue than virtually anyone on the Republican side of the aisle. He and his staff not only permitted but assisted in a significant and powerful hearing on racial profiling in the Constitution Subcommittee. Although he did not ultimately cosponsor our traffic stop statistics bill, he made constructive suggestions about the bill, and his interest in addressing this terrible problem I believe was sincere. And that sincerity was underlined in recent testimony before this Committee. He stated that he believes racial profiling is an unconstitutional practice and that he will make it a priority of the civil rights division of the Department to eradicate it. I believe him and I look forward to working with him on this if he is confirmed. I have also expressed great concern that whoever assumes the role of Attorney General of the United States needs to understand and appreciate a need for fairness in the administration of the severest punishment our Federal government can mete out, the death penalty. I understand that both President Bush and Senator Ashcroft support the use of capital punishment. But I was relatively pleased with Senator Ashcroft's responses to my questions, both at the hearing and in written form, concerning the federal death penalty system. I was particularly pleased to hear his commitment to continuing the Justice Department review of racial and regional disparities in the federal system, a review that was ordered by President Clinton and is only in its initial stages. I plan to hold him to his pledge and urge him carefully to consider the results of this review and address the disparities before proceeding with any federal executions. Having noted at least those areas where I'm hopeful about working together with John Ashcroft, this process has, nevertheless, brought forth extremely serious information that could lead any reasonable person to conclude that this nomination should not go forward. The interview with Southern Partisan and his acceptance of an honorary degree at Bob Jones University raise significant questions about his sensitivity to the concerns of the African American community in this country. Even worse, his failure to fully disavow these actions is troubling. It seemed almost as if he was playing it safe, trying not to antagonize certain conservative constituencies rather than admitting his mistakes and recognizing the need to take concrete steps to disavow the racist attitudes that both of those institutions represent to many Americans. He will need to do much more if he is confirmed to reassure African- Americans that he will faithfully enforce and apply the civil rights laws of this country. On another issue, Senator Ashcroft and the Republican majority's treatment of Judge Ronnie White was just plain unfair, and that is why I joined Senator Durbin in apologizing to him when he appeared before the Committee. Senator Ashcroft led opposition to Judge White, misleading our colleagues as to his record and attacking him in harsh and unfair language without giving him an opportunity to respond. There was no excuse for this behavior, and it represents for me an extremely sorry chapter in Senator Ashcroft's public record. Our Republican colleagues on this Committee and in the Senate share the responsibility for what happened. They should not have followed their colleague and allowed this to become a partisan issue on the floor of the Senate. I agree with David Broder, who in a column in which he stated a number of reasons for supporting John Ashcroft for Attorney General said that in the end, the Ronnie White episode could alone justify voting against him. He said that Ronnie White deserves more than an apology, he deserves an appointment to the federal bench. I agree and I hope that Senator Ashcroft and President Bush will give this idea serious consideration. And they need to go farther. The White nomination debacle raised the issue of race on the Senate floor in an unprecedented and almost tragic manner. The President and his advisors need to take major steps to right that wrong, and they can start by urging the Senate promptly to approve the nomination of Judge Roger Gregory to the Fourth Circuit Court of Appeals. I would note that Judge Gregory has received the endorsement of his home state Senators, Senators Warner and Allen, both of whom come from the President's party. Another troubling area is Senator Ashcroft's handling of a St. Louis desegregation case during his time as Attorney General of Missouri. I was impressed with the strong testimony of respected civil rights lawyer Bill Taylor. Mr. Taylor's testimony and the entire record of this case make it clear that at best Senator Ashcroft did not ``get'' the role of the courts in the case and the urgency of resolving the issue in the best interests of the children in the city. At worst, he exploited the case for political purposes, which is very troubling indeed. Then there is the case of James Hormel, our current ambassador to Luxembourg, whom Senator Ashcroft strongly opposed when his nomination was under consideration by the Senate. This was an extreme example of a pattern of unwarranted opposition to nominees pursued by Senator Ashcroft. I am frankly mystified by the notion that in the 21st century a nomination of a distinguished American would be blocked because of his sexual orientation. This is another sorry chapter in Senator Ashcroft's record, and frankly, his responses to written questions from members of this Committee about his position on this nomination were unsatisfactory and raise even more questions about his testimony than they answer. Ambassador Hormel is right to be outraged by those answers and the insinuations they contain. On a related topic, we have the accusations by former Wisconsin state Senator Paul Offner that Sen. Ashcroft questioned him about his sexual orientation in a job interview in 1985. I have worked with both of these people, and based on information I've seen, I find it hard to disbelieve either one. But the Offner account does bother me and while I will vote for Senator Ashcroft in committee today, I reserve the right to review any further information in this area that may come forward prior to the final confirmation vote on the floor. After all, Senator Ashcroft in sworn testimony told me that he had never used such an approach in hiring. In the end, however, this record has to be put in the context of the standard that I believe should be used when voting on the confirmation of a cabinet position. And, by the way, I do find somewhat persuasive the argument that the position of Attorney General is particularly significant, although it does not rise to the level of a high lifetime judicial appointment. As a matter of practice, the Senate has, for the most part, avoided rejecting the President's Cabinet nominations because of their ideology alone. The Senate may examine, and has examined, whether the extremity of nominees' views might prevent them from carrying out the duties of the office they seek to occupy. But the Senate has nearly uniformly sought to avoid disapproving nominations because of their philosophy alone. I believe that we should not begin to do so now. As my colleagues know, in the practices and precedents of the Senate, the Senate considers and approves the overwhelming majority of nominations as a matter of routine. Over the history of the Senate, the Senate has considered and approved literally millions of nominations. The Senate's voting to reject a nominee has been an exceedingly rare event. Of the 1.7 million nominees received by the Senate in the last 30 years, the Senate has voted to reject just 4, or one in every 425,000. Of course, Presidents often withdraw without a vote the nominations of those who likely face defeat. The Senate's voting to reject a nominee to the Cabinet has been an exceedingly rare event. Over the entire history of the Senate, the Senate has voted to reject only 9 nominations to the President's Cabinet. The Senate rejected six in the 19th Century, and three in the 20th Century. Four of the nine Cabinet nominees rejected were during the Presidency of President Tyler alone. Several other rejections may be said to have flowed from larger battles between the Senate and the President, as when the Senate rejected President Jackson's nominee to be Secretary of the Treasury in the wake of the dispute over the Bank of the United States. Similarly, bad feelings after the impeachment of President Andrew Johnson led to the Senate's rejection of President Johnson nominations of his counsel in the impeachment trial to be Attorney General. In the 20th Century, the Senate rejected half as many Cabinet nominees as it did in the 19th Century. In the wake of the Teapot Dome scandal, the Senate voted down President Coolidge's nomination of Charles Warren because of his ties to trusts. Most recently in 1989, the Senate rejected the nomination of Senator John Tower, an event which many on this Committee will recall from their own memory. This examination of the history demonstrates that it has been a nearly continuous custom of the Senate to confirm a President's nominees to the Cabinet in all but the very rarest of circumstances. These practices and precedents thus support the principle that the Senate owes the President substantial deference in the selection of the Cabinet. I should also note, as some members of the committee have done that all of President Clinton's cabinet appointments were confirmed overwhelmingly, and usually unanimously, despite the fact that many Republicans strongly disagreed with their views. This included the view of Attorney General Janet Reno in opposition to the death penalty, a view I strongly share with her but which has enlisted the support of few of my colleagues. Now, a number of opponents of this nomination for whom I have very high regard have sought to go beyond the traditional standards for cabinet nominations. I think the most interesting approach that the opponents have laid out, especially in light of the serious problems with Senator Ashcroft's record that I have already identified, is the question of whether Senator Ashcroft will actually enforce the law. I think my colleague Senator Schumer set up the question well when he said words to this effect: ``Given Senator Ashcroft's entire record of passionate advocacy for very conservative causes: Can he switch it off?'' I think this is a useful standard but it must be applied with caution. All of us have observed many talented people taking very different roles in their careers, sometimes having to oppose either people or groups for whom they used to advocate. Now in my own career, I've certainly been called unreasonable, unyielding and too persistent on occasion. But I remember being a defense attorney for large corporations at a law firm and then subsequently when I went to the Wisconsin State Senate, voting against those interests every time. I went into the State Senate representing a largely rural district and I remember constantly speaking of the need for rural property tax relief and not letting the City of Milwaukee run off with the entire budget. Yet, when I became a United States Senator, I understood my role to have changed and that I needed to advocate zealously for the very real needs for the people of our largest city. So, it seems to me that I've been asked to switch it off on several occasions. I feel I have done so and that this is fairly common in the careers of those public men and women. I think we were all struck by the strength of John Ashcroft's commitments and answers to our tough questions which were given under oath. His specific commitments to enforce the law in several areas were certainly not tepid. This was especially true with regard to his responses on choice and abortion-related matters--an area where, as a policy and constitutional matter I disagree with him virtually completely. Given Senator Ashcroft's strident record in this area it is completely understandable to me that critics would regard this as a ``confirmation conversion'' and that some would even see this as cynical with carefully chosen words with regard to Roe v. Wade, leaving the door open for a very different reality in the new Attorney General's office. I, for one, will not stand by and allow a departure from the clear impression that Senator Ashcroft offered as an assurance. In fact, one area I will closely scrutinize is his choices for top level positions in the Department of Justice. He will have direct responsibility for carrying out the promises he made to this Committee and the country. But I do take some umbrage at the notion that giving John Ashcroft's sworn testimony the benefit of the doubt is somehow because of Senate collegiality. No, it is because it is sworn testimony. But I do understand the very strong skepticism on this point in light of the incidents I've already reviewed especially as they relate to the blocking of nominations, a process in which John Ashcroft too often participated. I cannot question anyone for opposing this nomination, anyone for coming to an opposite conclusion of this record. It simply depends on one's view of the cabinet nomination process. It is a judgement call. I feel obligated under the traditional understanding of how cabinet appointments are handled to not put the worst possible interpretation on these facts. And I specifically cannot justify constructing the worst case scenario solely because Senator Ashcroft seemed to do the same for a number of very worthy nominees. It is certainly tempting to do so, but I am afraid it looks too much like political ``payback,'' a lesson that would not be lost in future cabinet confirmation considerations, including those involving the choices of a Democratic President. I don't want to be a part of taking the United States Senate and this country further down the road that John Ashcroft and others in his party paved during the Clinton years. Having said that, I want to hasten to add that I'm not at all sure that this kind of deference be given anymore on lifetime federal judicial appointments given what appears to be an open assault in recent years by the U.S. Senate on the federal judiciary. As I said in my opening statement at the confirmation hearing, although Democrats are being asked to follow the political golden rule on this nomination, I certainly agree that the line must be drawn at some point concerning the politicization of appointments. My judgment is that this is not the place--not this nomination or this office, as terribly important as it is. And yes, I firmly believe that as a progressive, this is about our future credibility and ability to move our agenda in a future administration that better reflects on voting records and beliefs, which in most cases are just the opposite of a John Ashcroft's. I know that some see this as futile or naive in light of the unbending ``other side.'' They may be right. But I believe the American people desperately want us to conduct ourselves, where possible, in a bipartisan manner: with civility, with give and take, and act as if those terms have real meaning and are not just empty rhetoric. So when I vote for John Ashcroft in committee, I am reaching out to the new Administration and to my Republican colleagues and especially those on the opposite side of this committee. I believe we share mutual respect. So I am extending to you at the beginning of this new Republican Administration an olive branch, but it is not a white flag I assure you. This is about the Department of Justice and it is justice I want to see for the wrong done to Judge Ronnie White. And it is justice I want to see done in the 4th Circuit Court of Appeals where the largest African American population lives and has never had an African American judge until the recess appointment of Roger Gregory. It is justice I want for numerous other circuit court nominees who languished in this committee for years and never even received a hearing. And it is justice I want for the future James Hormels and Bill Lann Lees who were most assuredly treated unfairly. And it is justice I want for the the victims of racial profiling in America. And I will press this Administration, the Attorney General, and this committee to prevent it from happening to others in the future. So I am genuinely appealing to you to show in concrete ways in the near future that you are concerned about the obviously heartfelt and legitimate feelings of many Americans that the Senate's role in the nominations process has been abused and overly politicized. There are real fault lines emerging in our culture and in our political system and repairs must be made. And some who have been harmed can and must be made whole. In fact, one of the most eloquent statements to this effect came just this month in President George W. Bush's Inaugural Address: ``Sometimes our differences run so deep it seems we share a continent, but not a country.'' I think he's right and I think this committee is the place to begin to repair the breach. That means for me the very difficult decision to vote to confirm John Ashcroft, but it also means immediate concrete efforts by the President and his party to mend the wounds that led to such fierce opposition to the Ashcroft nomination. It, of course, also means that the new Attorney General must vigorously enforce the law and be the Attorney General of all the people, regardless of race, religion, gender or sexual orientation. If he does that, he will earn the support of the American people. If he does not, I will be the first to call him on it and demand that he be held accountable. That was my statement in the Judiciary Committee. I rise today to speak more generally on the Senate's role of advice and consent in the President's nomination of individuals to the Cabinet. I rise also to speak a bit about the appointment process in general, apart from the discussion of any particular nomination. This analysis governs my consideration of both Senator Ashcroft's and Ms. Norton's nominations. John Adams wrote that we seek ``[a] government of laws, and not of men.'' He and other Founders sought a government based on principles, not on personalities. If we, as Senators, wish to serve that end in the nomination process, we must measure Cabinet nominations according to principle, with a look at the past and a view to the future. The first principle that I think should govern Cabinet nominations is what one might call the political Golden Rule. We, as Democrats, should, if at all possible, do unto the Republicans as we would have the Republicans do unto us. A Democratic President ought to be able to appoint to the Cabinet principled people of strong progressive ideology. And a Republican President ought to be able to appoint to the Cabinet principled people of strong conservative ideology. Now, some of our Republican colleagues have certainly failed too often in recent years to follow that Golden Rule, and I understand the desire to repay them in kind. To some degree, I share that desire. But I am determined to resist it for the good of the country, the health of the nomination process, and ultimately, to advance the prospects of future nominees who share the unabashedly progressive convictions that I hold dear. This principle means that, except in the rarest of cases, voting records and conservative ideology alone should not be a sufficient basis to reject at least a Cabinet nominee. I say this as a progressive Democrat from Wisconsin who hopes that future Presidents may appoint the William O. Douglasses and Ramsey Clarks of their times, and that future Senates will not reject them for Cabinet positions on the basis of their ideology alone. It should not be a requirement for a Cabinet position that the nominee travel solely in the middle of the road. There will come great leaders on the left and on the right. If we seek the great minds of our times, they may on occasion blow hot or cold. We should not require all the leaders of our country to run a tepid lukewarm. Now, whether nominating a staunch conservative is good politics or, more importantly, whether it is wise, in light of a promise to unify the nation after a very close election, is an important issue for a sustained national debate. But that question is not at the core of our responsibility in this body to advise and consent on Cabinet nominations. Alexander Hamilton wrote of the dangers of partisanship in the nomination process in Federalist number 76. He cited the partisanship of legislatures as one of the reasons why the Constitution did well to vest the power to nominate in the President, rather than in the Congress. Considering what would happen if the Constitution had given the Congress the power to nominate, Hamilton wrote: The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: ``Give us the man we wish for this office, and you shall have the one you wish for that.'' This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. So Hamilton wrote in Federalist 76. Thus we honor Hamilton's cautionary warning, and we advance the public service, by avoiding partisanship in the confirmation process. As a matter of practice, the Senate has, for the most part, limited its consideration of the President's Cabinet nominees to an inquiry into the nominees' fitness for office. The Senate must examine, and has examined, the qualifications of nominees. William Blackstone wrote in his Commentaries on the Laws of England, a work well known among the Founders, that ``[a]ll offices . . . carry in the eye of the law an honour along with them; because they imply a superiority of . . . abilities, being supposed to be always filled with those that are most able to execute them.'' The Senate has thus nearly uniformly sought to test the ability of nominees to execute the office that they seek to occupy. But as a matter of practice, the Senate has, for the most part, avoided rejecting the President's Cabinet nominations because of their ideology alone. The Senate may examine, and has examined, whether the extremity of nominees' views might prevent them from carrying out the duties of the office they seek to occupy. But the Senate has nearly uniformly sought to avoid disapproving nominations because of their philosophy alone. I believe that we should not begin to do so now. Mr. President, the second principle that I think should govern nominations is that the Senate owes the President substantial deference in the selection of the Cabinet. The Constitution vests the appointment power primarily in the President. This choice of the Founders, in turn, flows from the Constitution's imposing on the President the duty faithfully to execute the laws of our Nation. Article 2, section 1 of the Constitution begins: ``The executive power shall be vested in a President of the United States of America.'' That section ends by requiring the President-elect to take the oath ``that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.'' And article 2, section 3 provides that the President ``shall take care that the laws be faithfully executed.'' To carry out that duty, the President needs policy-makers in the executive branch, particularly in the Cabinet and subcabinet, who will support the President's program, as well as carry out the law. The Supreme Court in Myers v. United States explained: Our conclusion . . . is that Article II grants to the President the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers--a conclusion confirmed by his obligation to take care that the laws be faithfully executed; . . . and . . . that to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed. Thus article 2, section 2 of the Constitution confers the appointment power in the following language: The President . . . shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. Let me begin my discussion of this language with an analysis of its history. With this language, the Constitutional Convention made a change from the Articles of Confederation. Article 9 of the Articles of Confederation vested appointment powers in the Congress or a committee of Congress. That article provides, in relevant part: The United States in Congress assembled, shall have the sole and exclusive right and power of . . . appointing courts for the trial of piracies and felonies committed on the high seas. . . . The United States in Congress assembled shall also have the sole and exclusive right and power of . . . appointing all officers of the land forces, in the service of the United States, excepting regimental officers--appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States. . . . The United States in Congress assembled shall have authority . . . to appoint such other . . . civil officers as may be necessary for managing the general affairs of the United States under their direction. . . . And finally: The United States in Congress assembled shall never . . . appoint a commander in chief of the army or navy, unless nine States assent to the same. . . . Recall that one of the prime reasons for the Constitutional Convention that wrote our current Constitution was that the Articles of Confederation provided a government that proved less than workable. The Founders thus sought consciously to depart from this legislative government in favor of a stronger executive. When the Constitutional Convention began to debate the Constitution, its working draft initially provided for the Congress to choose the national judiciary. Many of the Framers found fault with this proposal. Pennsylvania's James Wilson argued that appointment by a group with numerous members would necessarily lead to ``[i]ntrigue, partiality, and concealment.'' He argued: ``A principal reason for unity in the Executive was that officers might be appointed by a single, responsible person.'' Virginia's James Madison agreed, saying, ``Besides the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. The Legislative talents . . . were very different from those of a Judge. . . .'' Massachusetts's Nathaniel Gorham, who in the Convention was an early proponent of the structure finally adopted in the Constitution, also emphasized the value of focusing responsibility on the President. Madison's notes report him saying: The Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone. . . . [N]ot . . . that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one. Pennsylvania's Gouverneur Morris argued that the President would need to deal with every part of the United States, and would thus be best informed about the character of potential nominees. Madison's notes report: Mr. Gouverneur Morris argued against the appointment of officers by the Senate. He considered the body as too numerous for the purpose; as subject to cabal; and as devoid of responsibility.--If Judges are to be tried by the Senate . . . it was particularly wrong to let the Senate have the filling of vacancies which its own decrees were to create. Gouverneur Morris later summed up: ``[A]s the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.'' When they reported home to their Governor, Connecticut's Roger Sherman and Oliver Ellsworth cited the protection of the rights of smaller states, writing: ``The equal representation of the States in the Senate and the voice of that branch in the appointment to offices will secure the rights of the lesser as well as of the greater States.'' The Supreme Court in Myers v. United States cited this as a major purpose for the creation of the Senate's power of advice and consent, saying: The history of the clause by which the Senate was given a check upon the President's power of appointment makes it clear that it was not prompted by any desire to limit removals. . . . [T]he important purpose of those who brought about the restriction was to lodge in the Senate, where the small States had equal representation with the larger States, power to prevent the President from making too many appointments from the larger States. After the Convention settled on the language now in the Constitution, proponents and opponents of executive power alike agreed that the President received the paramount role. New York's Alexander Hamilton, who wanted a strong Presidency, wrote in Federalist number 76: [I]t is easy to show, that every advantage to be expected . . . would, in substance, be derived from the power of nomination . . . . In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. Similarly, Maryland's Luther Martin, who feared too strong a Presidency, wrote in the Genuine Information: To that part of this article . . . which gives the President a right to nominate, and with the consent of the Senate to appoint all the officers, civil and military, of the United States, there were considerable opposition--it was said that the person who nominates, will always in reality appoint . . . . In the ratification debates, insofar as they addressed the nomination process, Hamilton's two Federalist Papers, numbers 76 and 77, stand most prominently. In Federalist number 76, Hamilton picked up the theme of the value of focusing responsibility on the President, writing: The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. Hamilton also wrote of responsibility in Federalist number 77, where he wrote: The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace. In the discussion among the Founders that touches most closely on the Senate's role in the nomination process, Hamilton wrote that he expected the Senate to reject nominees rather infrequently, but that the potential of such rejections would provide a useful check. Hamilton wrote: But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. Hamilton concluded: To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. The first Congress, which included among its Members several of the Founders, had occasion to discuss the appointment power. Georgia's Abraham Baldwin, for one, had been a delegate to the Constitutional Convention, and then became a Congressman. In arguing against extending the Senate's advice and consent power to removals from office, he said: I am well authorized to say that the mingling of the powers of the President and Senate was strongly opposed in the Convention which had the honor to submit to the consideration of the United States and the different States the present system for the government of the Union. Some gentlemen opposed it to the last, and finally it was the principal ground on which they refused to give it their signature and assent. One gentleman called it a monstrous and unnatural connection and did not hesitate to affirm it would bring on convulsions in the government. This objection was not confined to the walls of the Convention; it has been subject of newspaper declamation and perhaps justly so. Ought we not, therefore, to be careful not to extend this unchaste connection any further? Similarly, James Madison became a Congressman in the first Congress, where he said: Perhaps there was no argument urged with more success or more plausibly grounded against the Constitution under which we are now deliberating than that founded on the mingling of the executive and legislative branches of the Government in one body. It has been objected that the Senate have too much of the executive power even, by having control over the President in the appointment to office. Now shall we extend this connexion between the legislative and executive departments which will strengthen the objection and diminish the responsibility we have in the head of the Executive? The Supreme Court in Myers v. United States concluded from this history that it should read narrowly the Senate's power of advice and consent, saying: ``Our conclusion . . . is . . . that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication . . . .'' Let me turn now briefly to the history of the process of advice and consent in the Senate. Many of my Colleagues will have read the excellent discussion of that history in volume 2, chapter 2, of Senator Byrd's history of the Senate. For those who have not, I recommend it. As my Colleagues know, in the practices and precedents of the Senate, the Senate considers and approves the overwhelming majority of nominations as a matter of routine. Over the history of the Senate, the Senate has considered and approved literally millions of nominations. The Senate Executive Journal began totaling the number of nominations received and confirmed beginning in 1929. From then until now, the Senate has received more than 2.9 million nominations and confirmed more than 2.8 million. Over that period, the Senate has confirmed 97.9 percent of the nominations that it received. Among those not confirmed, many simply remained unconfirmed at the end of a Congress. The Senate's voting to reject a nominee has been an exceedingly rare event. Of the 1.7 million nominees received by the Senate in the last 30 years, the Senate has voted to reject just 4, or one in every 425,000. Of course, Presidents often withdraw without a vote the nominations of those who likely face defeat. The Senate's voting to reject a nominee to the Cabinet has been an even more exceedingly rare event. Over the entire history of the Senate, the Senate has voted to reject only 9 nominations to the President's Cabinet. The Senate rejected 6 in the 19th Century, and 3 in the 20th Century. Four of the 9 Cabinet nominees rejected were during the Presidency of President Tyler alone. Several other rejections may be said to have flowed from larger battles between the Senate and the President, as when the Senate rejected President Jackson's nominee to be Secretary of the Treasury in the wake of the dispute over the Bank of the United States. Similarly, bad feelings after the impeachment of President Andrew Johnson led to the Senate's rejection of President Johnson's nomination of his counsel in the impeachment trial to be Attorney General. In the 20th Century, the Senate rejected half as many Cabinet nominees as it did in the 19th Century. In the wake of the Teapot Dome scandal, the Senate voted down President Coolidge's nomination of Charles Warren because of his ties to trusts. The Senate voted down President Eisenhower's nomination of Lewis Strauss, some say because of Admiral Strauss's lack of tack. Most recently, in 1989, the Senate rejected the nomination of Senator John Tower, an event which many in the Senate will recall from their own memory. This examination of the history demonstrates that it has been a nearly continuous custom of the Senate to confirm a President's nominees to the Cabinet in all but the very rarest of circumstances. These practices and precedents thus support the principle that the Senate owes the President substantial deference in the selection of the Cabinet. Bearing in mind this history and Hamilton's admonition that the Senate's ``dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate,'' what then should be, in Hamilton's words, the ``special and strong reasons for the refusal'' that should prompt the Senate to reject a nominee to the Cabinet? It is in the nature of the Constitution's grant of powers to the Senate that each Senator must make his or her own decision how to vote on nominees whom the Senate considers. It thus follows that each decision must to some extent be subjective. But we do injury to the reputation of the Senate when we cannot articulate our reasons for rejecting a nominee as the expression of rules that could have universal application. It is the nature of justice that different persons of similar circumstances should receive similar treatment. Let us do justice when the Senate exercises its role of advice and consent. Let us examine nominees to see that they have, in Blackstone's words, ``superiority of . . . abilities''; let us see that they are ``most able to execute'' the offices for which they are nominated. Let us thoroughly investigate nominees' competence and experience. Let us question whether they have taken actions that would lead us to doubt their ability fully and fairly to execute their offices. Let us explore nominees' integrity and ensure that they have the proper ethical bearing to administer the high trusts to which they are nominated. And yes, let us guard against approving the nomination of an individual who stands so far at variance with the core values of this Nation--values of freedom, democracy, and equality--that we cannot realistically imagine the nominee's being able to carry out the duties of an office in our American government. That will necessarily be a subjective judgment, but plainly a legitimate one. But let us conduct our investigation in matters such as these that involve the lives and reputations of other people--people almost uniformly highly regarded in the community--with civility. Let us take pains to avoid casting the kind of personal ``stigma'' that Hamilton feared. And let us, when we hold the honor and careers of people in our hands, do what we can to diffuse the bitter viciousness that has seized so much of official Washington. I propose that we govern ourselves by principle, as a Democrat at the outset of a new Republican Presidency, in the hope that we may rise above that which has come before. For I cannot help but express my objection to the attitude and approach that the Republican majority in the Senate took toward the nominees of the Democratic President since the Republicans took control of the majority in 1994. In some respects, the Republican majority seemed not even to accept the legitimacy of President Clinton's electoral victories in 1992 and 1996. Elections must have consequences. Instead, it appeared to me that they unfairly blocked very legitimate, qualified appointees such as Bill Lann Lee, Ronnie White, and James Hormel. I think this was wrong. But I propose that we Democrats not return the favor, escalating a never-ending harshening of our discourse. Rather, I propose that we treat this new Republican President the way that we would want a Republican majority to treat a Democratic President in the future. It is not easy for me to tell those who fought so hard for President Clinton and then for Vice-President Gore that we should follow the Golden Rule, and that we should treat President Bush better than the Republican majority treated President Clinton. And should the new President abuse the Senate's deference, there may come a point when we have to draw a line and say, ``No more,'' given the Republican majority's refusal to accord a Democratic President the very deference that Republicans now seek. I want to make clear the manner in which I have evaluated both of the controversial nominees before this body, the nominee we consider today, former Senator Ashcroft, and the nominee who was confirmed Tuesday, Ms. Norton. I am no more comfortable with these votes and appointments than anyone else of my personal ideological viewpoint. I fully understand and have heard the pain expressed by my constituents who have strongly criticized these nominations and who devote their time and thought to building broader public support for an end to all forms of discrimination or for reproductive rights or for an environmentally sound energy policy or for wildlands protection. I must work hard every day on issues affecting the public interest and public welfare, and, in order to move a progressive agenda forward I must sit and listen and talk with those who deeply and profoundly disagree with me. These nominees and I do not agree on a number of issues. But the question that this body faces, and that I face as a member of it, is broader than whether or not we are having a referendum on the ideological views expressed by these nominees. I have reflected and given thought to the deeper historical and philosophical roots of the process of the Senate giving ``advice and consent'' to Cabinet nominees. In this history of the Senate's treatment of Cabinet nominations, deference is an important principle. Lack of that deference on nominees can result in a confirmation process that is undignified for the country, unlikely to produce outstanding public servants, and unable to advance the debate on matters of public policy. I am attempting by these votes to assist in restoring the Senate's credibility and trust, and I will use the powers of my office to make certain these nominees live up to the views they have expressed to this body under oath. And let me underscore that I have risen today to address nominations to the Cabinet, who will serve for a term of years, and whom we should consider under a far looser standard than that we should apply to judges and certainly justices, who will serve for life. But I fear that in the process of giving its advice and consent with regard to nominations to the President's Cabinet, the Senate is positioning itself to head down a road to a dangerous place. Let us decide not to go down that road. Let us not go down the road to where those who seek public office must all their life avoid any forceful public utterance. Let us not go down the road to where young people--college students and graduate students--will fear to experiment with new ideas. Let us not go down the road to where expression is squelched and thoughts are stifled. Let us not go down the road to that arid place where public discourse is barren because no public leaders dare write articles declaring their views. Let us not go down the road to where Senators fear to take a position, make a statement, or cosponsor a bill on a controversial issue, like the death penalty--one way or the other--just to avoid a confirmation fight. Let us not go down the road to that frozen place where the Senate's nomination process imposes a deep chill over political discourse among all who would someday hold office. And let us not go down a road to where in order to serve our Country, one must become like milk toast, like Pablum. Rather, let us work together in this government, working with vigorous minds who may sometimes have vigorous opinions. The American People expect this Senate and this government, divided as it is, to govern. We owe them no less than to try to do so. Now is not too soon to start. I extend to President Bush the hand of cooperation as he begins his administration. I will cast my votes on nominations he proposes according to these principles, and hope that the President and the majority will return the favor, and work together with us in a truly bipartisan manner.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, one year ago today, Governor George Ryan took the bold step of placing a moratorium on executions in Illinois. He refused to sign off on a single execution in Illinois. Why? Because he saw that the system by which people were sentenced to death in Illinois was terribly flawed. In fact, by the time Governor Ryan made his decision, Illinois had seen more exonerations of innocent people than executions. There had been 13 exonerations and 12 executions. Of the 13 people found innocent, some were wrongfully convicted based on police or prosecutorial misconduct. Modern DNA testing played a role in yet another 5 exonerations. And in some cases, it was students from Northwestern University--people very much outside the criminal justice system--who played a key role in finding and presenting the evidence to secure the release of wrongfully condemned men. What did Governor Ryan do in the face of this risk of executing innocent people? Governor Ryan recognized the moral stakes that faced him and took the courageous step of suspending executions. He said, ``until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate.'' Is that too much to ask--that innocent men and women not be put to death? I believe the vast majority of Americans would say it is not too much to ask. Governor Ryan has been an ardent death penalty supporter, having argued vehemently for its use while a member of the Illinois legislature. But now, as Governor, he was faced with the awesome responsibility of carrying out the final stage of this punishment. Following his decision to place a moratorium on executions, he promptly appointed a panel of distinguished prosecutors and defense lawyers, as well as civic and political leaders. That panel is charged with thoroughly reviewing the flaws in the administration of the death penalty in Illinois. But these problems--and particularly the risk of executing an innocent person--are not unique to Illinois. They exist throughout our Nation. That is why today I rise to re-introduce the National Death Penalty Moratorium Act. This bill seeks to apply the wisdom of Governor Ryan and the people of Illinois to the federal government and all states that authorize the use of capital punishment. I am pleased that my distinguished colleagues, Senators Levin, Wellstone and Corzine, have joined me in cosponsoring this bill. Governor Ryan's decision was a watershed event. During the last year, his action was a significant factor in unleashing a renewed, national debate on the death penalty. For the first time in many years, people are beginning to understand that our system is fallible. Mistakes can be made. Mistakes have been made. But mistakes should not be made, particularly when mistakes can mean the difference between life and death. In fact, overall support for the death penalty has dropped to an almost 20-year low. According to an NBC News/Wall Street Journal poll, 63 percent of Americans support a suspension of executions while questions of fairness are addressed. The time to prevent the execution of the innocent is now. The time to restore fairness and justice is now. The time to act is now. The time for a moratorium is now. Governor Ryan was greatly troubled by the number of innocent people sent to death row in Illinois--13 people, and still counting. Since the 1970s, 93 people have been exonerated nationwide. At the same time, we have executed close to 700 people. That means for every seven people who have been executed, we have found one person sitting on death row who should not have been there. And it's not just Illinois that has sent innocent people to death row. Twenty-two of the 38 states that authorize capital punishment have had exonerations. In fact, Florida actually exceeds Illinois in total number of people exonerated: Florida has had 20. Oklahoma has exonerated 7, Texas has exonerated 7 people, Georgia has exonerated 6 people, and on and on. Mr. President, while we explore ways to reduce and eliminate the risk of executing the innocent, not a single person should be executed. The time to act is now. The time for a moratorium is now. My distinguished colleague from Vermont, the ranking member of the Judiciary Committee, Senator Leahy, has championed the need for access to modern DNA testing and certain minimum standards of competency for defense counsel in capital cases. I have joined him and many of our distinguished colleagues, including Senators Gordon Smith, Collins, Jeffords, and Levin, to support the Innocence Protection Act. This bill would bring greater fairness to the administration of the death penalty. I commend Senator Leahy for his leadership on this bill, particularly for highlighting the need for access to modern DNA testing. During the last year, as a result of his leadership, the American people are beginning to understand the value and necessity of modern DNA testing in our criminal justice system. But while we work to pass these needed reforms, a time-out is needed to ensure the integrity and fairness of our criminal justice system. The time for a moratorium is now. According to a study led by Columbia University Law Professor Jim Liebman and released last June, the overall rate of error in America's death penalty system is 68 percent. Reviewing over 4,500 appeals between 1973 and 1995, the report found that courts detected serious, reversible error in nearly 7 of every 10 of the capital sentences that were fully reviewed. It is appalling that the system is producing so many mistakes. And, of course, the question remains: Are we in fact catching all the mistakes? The Columbia study is further evidence that Illinois' problems are not unique. The overall error rate in Illinois was 66 percent, just below the national average, which means that some states are well above Illinois. I can't underscore this enough. The serious, prejudicial error that results in reversals is a phenomenon nationally, not just in Illinois. In the words of the study's authors, our system is ``collapsing under the weight of its own mistakes.'' Mr. President, if our death penalty system was a business enterprise that had an error rate in producing widgets of 68 percent, that business would undertake a thorough, top to bottom review. Let's conduct a thorough, top to bottom review of our nation's death penalty system. The Columbia study found that the most common errors are (1) egregiously incompetent defense counsel who failed to look for important evidence that the defendant was innocent or did not deserve to die; and (2) police or prosecutors who discovered that kind of evidence but suppressed it, again keeping it from the jury. On retrial where results are known, 82 percent of the reversals resulted in sentences less than death, while another 7 percent were found to be innocent of the crime that sent them to death row. When the system sends an innocent person to death row, there is a double loss: the innocent person is robbed of freedom and the real killer is still free, free to potentially do more harm. Senator Leahy's Innocence Protection Act is a first step in the fight to ensure that defendants facing capital charges receive competent legal representation. We have heard stories of sleeping lawyers, drunk lawyers, lawyers who are paid less than a living wage, all of whom are lawyers who have represented people subsequently convicted and sentenced to death. But, as the Columbia study shows, access to modern DNA testing and efforts to ensure competent counsel in capital cases are only two of the many menacing problems plaguing the administration of the death penalty. The second common error, according to the Columbia study, is the role of police or prosecutorial misconduct in suppressing evidence that could mean the difference between guilt and innocence, or life and death. The risk of police or prosecutorial misconduct is increased in capital cases. Why? Because capital cases are usually high profile, high stakes cases, particularly for the police or prosecutor's personal, professional advancement. One problem involves the use of jailhouse informant testimony. Police or prosecutors use jailhouse informants who claim to have heard the defendant confess to a crime. These informants' testimony, however, is inherently unreliable because they have a strong incentive to lie: their testimony to convict another person can mean reduced charges or a lighter sentence in their own case. Similarly, prosecutors may rely on the testimony of co-defendants who also may have strong incentives to lie to avoid tougher charges or harsher sentences. Yet another area of police misconduct involves false confessions. Take the case of Gary Gauger. Gauger was wrongfully convicted of murdering his parents on the basis of a false confession obtained by police. In 1993, he was convicted and sent to Illinois' death row. The main piece of evidence against him was a so-called ``confession'' that the police claimed they obtained after holding Gauger for 21 hours without food or access to an attorney. The police wrote out a version of the murder and tried to convince Gauger that he had killed his parents while in a blackout state. He refused to sign the ``confession.'' But the prosecution introduced the unsigned confession against him at trial. His defense attorney did virtually no work preparing for trial, telling Gauger's sister that ``death penalty cases are won on appeal.'' Fortunately for Gauger, Northwestern University Law Professor Larry Marshall took over his case and Gauger's conviction was reversed. In the meantime, the real killers were discovered when FBI agents, listening to wiretapped conversations during an FBI investigation of a motorcycle gang, heard the killers describe murdering Gauger's parents. Gauger finally got his freedom, but only after being unfairly and unjustly dragged through our criminal justice system. Our law enforcement officers do a great job, but we must act to understand the role of misconduct by police and prosecutors and its contribution to creating a high rate of error in capital cases. The time to act is now. The time for a moratorium is now. Another problem with our nation's administration of the death penalty is the glaring racial disparity in decisions about who shall be executed. One of the most disturbing statistics suggests that white victims are valued more highly by the system than non-whites. Since reinstatement of the modern death penalty, 83 percent of capital cases involve white victims, even though murder victims are African American or white in roughly equal numbers. Nationwide, more than half the death row inmates are African Americans or Hispanic Americans. Racial disparities are particularly pronounced at the federal level. According to a report released by the Justice Department in September 2000, whether a defendant lives or dies in the federal system appears to relate to the color of the defendant's skin or the federal district in which the prosecution takes place. The report also found that 80 percent of the cases submitted for death penalty prosecution authorization involved minority defendants. Furthermore, according to the Department of Justice, white defendants are more likely than black defendants to negotiate plea bargains saving them from the death penalty in Federal cases. In fact, currently, 16 of the 20, or 80 percent, of federal death row inmates are racial or ethnic minorities. The federal death penalty system also shows a troubling geographic disparity. The Department of Justice report shows that United States Attorneys in only 5 of 94 Federal districts--1 each in Virginia, Maryland, Puerto Rico, and 2 in New York--submit 40 percent of all cases in which the death penalty is considered. In fact, U.S. attorneys who have frequently recommended seeking the death penalty are often from States with a high number of executions under State law, including Texas, Virginia, and Missouri. The National Institute of Justice is already setting into motion a comprehensive study of these racial and geographic disparities. Federal executions should not proceed until these disparities are fully studied and discussed, and until the federal death penalty process is subjected to necessary remedial action. In addition to racial and geographic disparities in the administration of the federal death penalty, other serious questions exist about the fairness and reliability of federal death penalty prosecutions. Federal prosecutors rely heavily on bargained-for testimony from accomplices of the capital defendant, which is often obtained in exchange for not seeking the death penalty against the accomplices. This practice creates a serious risk of false testimony. Federal prosecutors are not required to provide discovery sufficiently ahead of trial to permit the defense to be prepared to use this information effectively in defending their clients. The FBI, in increasing isolation from the rest of the nation's law enforcement agencies, refuses to make electronic recordings of interrogations that produce confessions, thus making subsequent scrutiny of the legality and reliability of such interrogations more difficult. Federal prosecutors rely heavily on predictions of ``future dangerousness''-- predictions deemed unreliable and misleading by the American Psychiatric Association and the American Psychological Association--to secure death sentences. I was pleased when, in December 2000, President Clinton stayed Juan Raul Garza's execution and ordered the Justice Department to conduct further reviews of the racial and regional disparities in the federal death penalty system. Before the federal government takes this step, resuming executions for the first time in almost 40 years, we should be sure that our system of administering the ultimate punishment is fair and just. I urge my colleagues to join me in cosponsoring the National Death Penalty Moratorium Act. This bill would place a moratorium on federal executions and urge the States to do the same. The bill would also create a National Commission on the Death Penalty to review the fairness of the administration of the death penalty at the state and federal levels. This Commission would be an independent, blue ribbon panel of distinguished prosecutors, defense attorneys, jurists and others. The need for a moratorium could not be more critical than it is today. The time to act is now. The time for a moratorium is now. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, one year ago today, Governor George Ryan took the bold step of placing a moratorium on executions in Illinois. He refused to sign off on a single execution in Illinois. Why? Because he saw that the system by which people were sentenced to death in Illinois was terribly flawed. In fact, by the time Governor Ryan made his decision, Illinois had seen more exonerations of innocent people than executions. There had been 13 exonerations and 12 executions. Of the 13 people found innocent, some were wrongfully convicted based on police or prosecutorial misconduct. Modern DNA testing played a role in yet another 5 exonerations. And in some cases, it was students from Northwestern University--people very much outside the criminal justice system--who played a key role in finding and presenting the evidence to secure the release of wrongfully condemned men. What did Governor Ryan do in the face of this risk of executing innocent people? Governor Ryan recognized the moral stakes that faced him and took the courageous step of suspending executions. He said, ``until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate.'' Is that too much to ask--that innocent men and women not be put to death? I believe the vast majority of Americans would say it is not too much to ask. Governor Ryan has been an ardent death penalty supporter, having argued vehemently for its use while a member of the Illinois legislature. But now, as Governor, he was faced with the awesome responsibility of carrying out the final stage of this punishment. Following his decision to place a moratorium on executions, he promptly appointed a panel of distinguished prosecutors and defense lawyers, as well as civic and political leaders. That panel is charged with thoroughly reviewing the flaws in the administration of the death penalty in Illinois. But these problems--and particularly the risk of executing an innocent person--are not unique to Illinois. They exist throughout our Nation. That is why today I rise to re-introduce the National Death Penalty Moratorium Act. This bill seeks to apply the wisdom of Governor Ryan and the people of Illinois to the federal government and all states that authorize the use of capital punishment. I am pleased that my distinguished colleagues, Senators Levin, Wellstone and Corzine, have joined me in cosponsoring this bill. Governor Ryan's decision was a watershed event. During the last year, his action was a significant factor in unleashing a renewed, national debate on the death penalty. For the first time in many years, people are beginning to understand that our system is fallible. Mistakes can be made. Mistakes have been made. But mistakes should not be made, particularly when mistakes can mean the difference between life and death. In fact, overall support for the death penalty has dropped to an almost 20-year low. According to an NBC News/Wall Street Journal poll, 63 percent of Americans support a suspension of executions while questions of fairness are addressed. The time to prevent the execution of the innocent is now. The time to restore fairness and justice is now. The time to act is now. The time for a moratorium is now. Governor Ryan was greatly troubled by the number of innocent people sent to death row in Illinois--13 people, and still counting. Since the 1970s, 93 people have been exonerated nationwide. At the same time, we have executed close to 700 people. That means for every seven people who have been executed, we have found one person sitting on death row who should not have been there. And it's not just Illinois that has sent innocent people to death row. Twenty-two of the 38 states that authorize capital punishment have had exonerations. In fact, Florida actually exceeds Illinois in total number of people exonerated: Florida has had 20. Oklahoma has exonerated 7, Texas has exonerated 7 people, Georgia has exonerated 6 people, and on and on. Mr. President, while we explore ways to reduce and eliminate the risk of executing the innocent, not a single person should be executed. The time to act is now. The time for a moratorium is now. My distinguished colleague from Vermont, the ranking member of the Judiciary Committee, Senator Leahy, has championed the need for access to modern DNA testing and certain minimum standards of competency for defense counsel in capital cases. I have joined him and many of our distinguished colleagues, including Senators Gordon Smith, Collins, Jeffords, and Levin, to support the Innocence Protection Act. This bill would bring greater fairness to the administration of the death penalty. I commend Senator Leahy for his leadership on this bill, particularly for highlighting the need for access to modern DNA testing. During the last year, as a result of his leadership, the American people are beginning to understand the value and necessity of modern DNA testing in our criminal justice system. But while we work to pass these needed reforms, a time-out is needed to ensure the integrity and fairness of our criminal justice system. The time for a moratorium is now. According to a study led by Columbia University Law Professor Jim Liebman and released last June, the overall rate of error in America's death penalty system is 68 percent. Reviewing over 4,500 appeals between 1973 and 1995, the report found that courts detected serious, reversible error in nearly 7 of every 10 of the capital sentences that were fully reviewed. It is appalling that the system is producing so many mistakes. And, of course, the question remains: Are we in fact catching all the mistakes? The Columbia study is further evidence that Illinois' problems are not unique. The overall error rate in Illinois was 66 percent, just below the national average, which means that some states are well above Illinois. I can't underscore this enough. The serious, prejudicial error that results in reversals is a phenomenon nationally, not just in Illinois. In the words of the study's authors, our system is ``collapsing under the weight of its own mistakes.'' Mr. President, if our death penalty system was a business enterprise that had an error rate in producing widgets of 68 percent, that business would undertake a thorough, top to bottom review. Let's conduct a thorough, top to bottom review of our nation's death penalty system. The Columbia study found that the most common errors are (1) egregiously incompetent defense counsel who failed to look for important evidence that the defendant was innocent or did not deserve to die; and (2) police or prosecutors who discovered that kind of evidence but suppressed it, again keeping it from the jury. On retrial where results are known, 82 percent of the reversals resulted in sentences less than death, while another 7 percent were found to be innocent of the crime that sent them to death row. When the system sends an innocent person to death row, there is a double loss: the innocent person is robbed of freedom and the real killer is still free, free to potentially do more harm. Senator Leahy's Innocence Protection Act is a first step in the fight to ensure that defendants facing capital charges receive competent legal representation. We have heard stories of sleeping lawyers, drunk lawyers, lawyers who are paid less than a living wage, all of whom are lawyers who have represented people subsequently convicted and sentenced to death. But, as the Columbia study shows, access to modern DNA testing and efforts to ensure competent counsel in capital cases are only two of the many menacing problems plaguing the administration of the death penalty. The second common error, according to the Columbia study, is the role of police or prosecutorial misconduct in suppressing evidence that could mean the difference between guilt and innocence, or life and death. The risk of police or prosecutorial misconduct is increased in capital cases. Why? Because capital cases are usually high profile, high stakes cases, particularly for the police or prosecutor's personal, professional advancement. One problem involves the use of jailhouse informant testimony. Police or prosecutors use jailhouse informants who claim to have heard the defendant confess to a crime. These informants' testimony, however, is inherently unreliable because they have a strong incentive to lie: their testimony to convict another person can mean reduced charges or a lighter sentence in their own case. Similarly, prosecutors may rely on the testimony of co-defendants who also may have strong incentives to lie to avoid tougher charges or harsher sentences. Yet another area of police misconduct involves false confessions. Take the case of Gary Gauger. Gauger was wrongfully convicted of murdering his parents on the basis of a false confession obtained by police. In 1993, he was convicted and sent to Illinois' death row. The main piece of evidence against him was a so-called ``confession'' that the police claimed they obtained after holding Gauger for 21 hours without food or access to an attorney. The police wrote out a version of the murder and tried to convince Gauger that he had killed his parents while in a blackout state. He refused to sign the ``confession.'' But the prosecution introduced the unsigned confession against him at trial. His defense attorney did virtually no work preparing for trial, telling Gauger's sister that ``death penalty cases are won on appeal.'' Fortunately for Gauger, Northwestern University Law Professor Larry Marshall took over his case and Gauger's conviction was reversed. In the meantime, the real killers were discovered when FBI agents, listening to wiretapped conversations during an FBI investigation of a motorcycle gang, heard the killers describe murdering Gauger's parents. Gauger finally got his freedom, but only after being unfairly and unjustly dragged through our criminal justice system. Our law enforcement officers do a great job, but we must act to understand the role of misconduct by police and prosecutors and its contribution to creating a high rate of error in capital cases. The time to act is now. The time for a moratorium is now. Another problem with our nation's administration of the death penalty is the glaring racial disparity in decisions about who shall be executed. One of the most disturbing statistics suggests that white victims are valued more highly by the system than non-whites. Since reinstatement of the modern death penalty, 83 percent of capital cases involve white victims, even though murder victims are African American or white in roughly equal numbers. Nationwide, more than half the death row inmates are African Americans or Hispanic Americans. Racial disparities are particularly pronounced at the federal level. According to a report released by the Justice Department in September 2000, whether a defendant lives or dies in the federal system appears to relate to the color of the defendant's skin or the federal district in which the prosecution takes place. The report also found that 80 percent of the cases submitted for death penalty prosecution authorization involved minority defendants. Furthermore, according to the Department of Justice, white defendants are more likely than black defendants to negotiate plea bargains saving them from the death penalty in Federal cases. In fact, currently, 16 of the 20, or 80 percent, of federal death row inmates are racial or ethnic minorities. The federal death penalty system also shows a troubling geographic disparity. The Department of Justice report shows that United States Attorneys in only 5 of 94 Federal districts--1 each in Virginia, Maryland, Puerto Rico, and 2 in New York--submit 40 percent of all cases in which the death penalty is considered. In fact, U.S. attorneys who have frequently recommended seeking the death penalty are often from States with a high number of executions under State law, including Texas, Virginia, and Missouri. The National Institute of Justice is already setting into motion a comprehensive study of these racial and geographic disparities. Federal executions should not proceed until these disparities are fully studied and discussed, and until the federal death penalty process is subjected to necessary remedial action. In addition to racial and geographic disparities in the administration of the federal death penalty, other serious questions exist about the fairness and reliability of federal death penalty prosecutions. Federal prosecutors rely heavily on bargained-for testimony from accomplices of the capital defendant, which is often obtained in exchange for not seeking the death penalty against the accomplices. This practice creates a serious risk of false testimony. Federal prosecutors are not required to provide discovery sufficiently ahead of trial to permit the defense to be prepared to use this information effectively in defending their clients. The FBI, in increasing isolation from the rest of the nation's law enforcement agencies, refuses to make electronic recordings of interrogations that produce confessions, thus making subsequent scrutiny of the legality and reliability of such interrogations more difficult. Federal prosecutors rely heavily on predictions of ``future dangerousness''-- predictions deemed unreliable and misleading by the American Psychiatric Association and the American Psychological Association--to secure death sentences. I was pleased when, in December 2000, President Clinton stayed Juan Raul Garza's execution and ordered the Justice Department to conduct further reviews of the racial and regional disparities in the federal death penalty system. Before the federal government takes this step, resuming executions for the first time in almost 40 years, we should be sure that our system of administering the ultimate punishment is fair and just. I urge my colleagues to join me in cosponsoring the National Death Penalty Moratorium Act. This bill would place a moratorium on federal executions and urge the States to do the same. The bill would also create a National Commission on the Death Penalty to review the fairness of the administration of the death penalty at the state and federal levels. This Commission would be an independent, blue ribbon panel of distinguished prosecutors, defense attorneys, jurists and others. The need for a moratorium could not be more critical than it is today. The time to act is now. The time for a moratorium is now. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to introduce the Consumer Credit Fair Dispute Resolution Act of 2001, a bill that will protect and preserve American consumers' right to take their disputes with creditors to court. I first introduced this legislation last year, both as a bill and as an amendment to the bankruptcy reform bill. I am pleased that my distinguished colleague from Vermont, the ranking member of the Judiciary Committee, Senator Leahy, has joined me again as an original cosponsor of this important legislation. Credit card companies and consumer credit lenders are increasingly requiring their customers to use binding arbitration when a dispute arises. Consumers are barred by contract from taking a dispute to court, even small claims court. While arbitration can be an efficient tool to settle claims, it is credible and effective only when consumers enter into it knowingly, intelligently and voluntarily. Unfortunately, that's not happening in the credit card and consumer credit lending arenas. One of the most fundamental principles of our justice system is the constitutional right to take a dispute to court. Indeed, all Americans have the right in civil and criminal cases to a trial by jury. The right to a jury trial in civil cases in Federal court is contained in the Seventh Amendment to the Constitution. Many States provide a similar right to a jury trial in civil matters filed in state court. Some argue that Americans are over-using the courts. Court dockets across the country are congested with civil cases. In part as a response to these concerns, various ways to resolve disputes, short of going to court, have been developed. Alternatives to court litigation are collectively known as alternative dispute resolution, or ADR. ADR includes mediation and arbitration. Mediation and arbitration are often efficient ways to resolve disputes because the parties can have their case heard well before they would have received a trial date in court. Arbitration, like a court proceeding, involves a third party--an arbitrator or arbitration panel. The arbitrator issues a decision after reviewing the arguments by all parties. Arbitration uses rules of evidence and procedure, although it may use rules that are simpler or more flexible than the evidentiary and procedural rules that the parties would follow in a court proceeding. Arbitration can be either binding or non-binding. Non-binding arbitration means that the decision issued by the arbitrator or arbitration panel takes effect only if the parties agree to it after they know what the decision is. In binding arbitration, parties agree in advance to accept and abide by the decision, whatever it is. Some contracts contain clauses that require arbitration to be used to resolve disputes that arise after the contract is signed. This is called ``mandatory arbitration.'' This means that if there is a dispute, the complaining party cannot file suit in court and instead is required to pursue arbitration. ``Mandatory, binding arbitration'' therefore means that under the contract, the parties must use arbitration to resolve a future disagreement and the decision of the arbitrator or arbitration panel is final. The parties have no ability to seek relief in court or through mediation. In fact, if they are not satisfied with the arbitration outcome, they are probably stuck with the decision. Under mandatory, binding arbitration, even if a party believes that the arbitrator did not consider all the facts or follow the law, the party cannot file a suit in court. The only basis for challenging a binding arbitration decision is fairly narrow: if there is reason to believe that the arbitrator committed actual fraud, or was partial, corrupt or guilty of misconduct, or exceeded his or her powers. In contrast, if a dispute is resolved by a court, the parties can have broader grounds upon which to pursue an appeal of the lower court's decision. Because mandatory, binding arbitration is so conclusive, it is a credible means of dispute resolution only when all parties understand the full ramifications of agreeing to it. But that's not what's happening in a variety of contexts--from motor vehicle franchise agreements, to employment agreements, to credit card agreements. I'm proud to have sponsored legislation addressing employment agreements and motor vehicle franchise agreements. Many of my colleagues have joined as cosponsor of one or both bills. And just last spring, my distinguished colleague from Iowa, Senator Grassley, chaired a hearing in the Judiciary Subcommittee on Administrative Oversight and the Courts on contractual mandatory, binding arbitration. That hearing included a discussion of mandatory arbitration in the consumer credit agreement context. There is a growing, menacing trend of credit card companies and consumer credit lenders inserting mandatory, binding arbitration clauses in agreements with consumers. Companies like First USA Bank, American Express, and Green Tree Discount Company unilaterally insert mandatory, binding arbitration clauses in their agreements with consumers, often without the consumer's knowledge or consent. The most common way credit card companies have done this is through the use of a ``bill stuffer.'' Bill stuffers are the advertisements and other materials that credit card companies insert into envelopes with the customers' monthly statements. Some credit card issuers like American Express have placed mandatory arbitration clauses in bill stuffers. The arbitration provision is usually buried in fine print in a mailing that includes a bill and various advertising materials. It is often described in a lengthy legal document that most consumers probably don't even skim, much less read carefully. American Express's mandatory arbitration provision took effect on June 1, 1999. So, if you're an American Express cardholder and you have a dispute with American Express, as of June 1999, you can't take your claim to court, even small claims court. You are bound to use arbitration, and you are bound to the final arbitration decision. In this case, you are also bound to use an arbitration organization selected by American Express, the National Arbitration Forum. American Express is not the only credit card company imposing mandatory arbitration on its customers. First USA Bank, the largest issuer of Visa cards, with 58 million customers, has been doing the same thing since 1997. First USA also alerted its cardholders with a bill stuffer, containing a condensed set of terms and conditions in fine print. The cardholder, by virtue of continuing to use the First USA card, gave up the right to go to court, even small claims court, to resolve a dispute. This growing practice extends beyond credit cards into the consumer loan industry. Consumer credit lenders like Green Tree Consumer Discount Company are inserting mandatory, binding arbitration clauses in their loan agreements. The problem is that these loan agreements are usually adhesion contracts, which means that consumers must either sign the agreement as is, or forego a loan. In other words, consumers lack the bargaining power to have the clause removed. More importantly, when signing on the dotted line of the loan agreement, consumers may not even understand what mandatory arbitration means. In all likelihood, they do not understand that they have just signed away a right to go to court to resolve a dispute with the lender. It might be argued that if consumers are not pleased with being subjected to a mandatory arbitration clause, they can cancel their credit card, or not execute on their loan agreement, and take their business elsewhere. Unfortunately, that's easier said than done. As I mentioned, First USA Bank, the nation's largest Visa card issuer, is part of this questionable practice. In fact, the practice is becoming so pervasive that consumers may soon no longer have an alternative, unless they forego use of a credit card or a consumer loan entirely. Consumers should not be forced to make that choice. Companies like First USA, American Express and Green Tree argue that they rely on mandatory arbitration to resolve disputes faster and cheaper than in court litigation. The claim may be resolved faster but is it really cheaper? Is it as fair as a court of law? I don't think so. Arbitration organizations often charge exorbitant fees to the consumer who brings a dispute. These costs can be much higher than bringing the matter to small claims court and paying a court filing fee. Or, the fees could very well be greater than the consumer's claim. So as a result, a consumer's claim is not necessarily resolved more efficiently with arbitration. It is resolved either at greater cost to the consumer or not at all, if the consumer cannot afford the costs, or the costs outweigh the amount in dispute. In December 2000, in Green Tree Financial Corp. Alabama et. al. v. Randolph, the U.S. Supreme Court found that an arbitration clause that is silent as to the costs and fees of arbitration is enforceable. It, however, left unanswered the question of whether large arbitration costs, which effectively preclude a litigant from vindicating federal statutory rights in the arbitral forum, render the arbitration clause unenforceable. Another significant problem with mandatory, binding arbitration is that the lender gets to decide in advance who the arbitrator will be. In the case of American Express and First USA, they have chosen the National Arbitration Forum. All credit card disputes with consumers involving American Express or First USA are handled by that entity. There would seem to be a significant danger that this would result in an advantage for the lenders who are ``repeat players.'' After all, if the National Arbitration Forum develops a pattern of reaching decisions that favor cardholders, American Express or First USA may very well decide to take their arbitration business elsewhere. A system where the arbitrator has a financial interest in reaching an outcome that favors the credit card company is not a fair alternative dispute resolution system. At least one state court has found that mandatory arbitration provisions in credit card bill stuffers are unenforceable. A suit filed in California state court arose out of a mandatory arbitration provision announced in mailings by Bank of America to its credit card and deposit account holders. In 1998, the California Court of Appeals ruled that the mandatory arbitration clauses unilaterally imposed on the Bank's customers were invalid and unenforceable. The California Supreme Court refused to review the decision of the lower court. As a result, credit card companies in California cannot invoke mandatory arbitration in their disputes with customers. In fact, the American Express bill stuffer notes that the mandatory, binding arbitration provision will not apply to California residents until further notice from the company. The California appellate court decision was wise and well-reasoned, but consumers in other states cannot be sure that all courts will reach the same conclusion. My bill extends the wisdom of the California appellate decision to every credit cardholder and consumer loan borrower. It amends the Federal Arbitration Act to invalidate mandatory, binding arbitration provisions in consumer credit agreements. Now, let me be clear. I believe that arbitration can be a fair and efficient way to settle disputes. I agree we ought to encourage alternative dispute resolution. But I also believe that arbitration is a fair way to settle disputes between consumers and lenders only when it is entered into knowingly and voluntarily by both parties to the dispute after the dispute has arisen. Pre-dispute agreements to take disputes to arbitration cannot be voluntary and knowing in the consumer lending context because the bargaining power of the parties is so unequal. My bill does not prohibit arbitration of consumer credit transactions. It merely prohibits mandatory, binding arbitration provisions in consumer credit agreements. Credit card companies and consumer credit lenders are increasingly slamming the courthouse doors shut on consumers, often unbeknownst to them. This is grossly unjust. We need to restore fairness to the resolution of consumer credit disputes. I urge my colleagues to support the Consumer Credit Fair Dispute Resolution Act. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record following my statement.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to introduce the Federal Death Penalty Abolition Act of 2001. This bill will abolish the death penalty at the Federal level. It will put an immediate halt to executions and forbid the imposition of the death penalty as a sentence for violations of Federal law. The most recent Gallup poll shows that, while a majority of Americans continue to support capital punishment, this support has reached a nearly 20-year low. This diminished support comes amid rising concern that the system by which we impose the sentence of death is seriously flawed. In the last year or so since I first introduced this bill, the American people have learned about the risk of executing innocent people and other fairness and reliability concerns with the administration of the death penalty. I am confident that in the weeks and months to come, the American people will continue to learn and continue to question the fairness of our death penalty system. In recent years, this Chamber has echoed with debate on violence in America. We've heard about violence in our schools and neighborhoods. Some say it's because of the availability of guns to minors. Some say Hollywood has contributed to a culture of violence. Others argue that the roots of the problem are far deeper and more complex. Whatever the causes, a culture of violence has certainly infected our nation. As schoolhouse killings have shown, our children are now reached by that culture of violence, not merely as casual observers, but as participants and victims. But, I'm not so sure that we in government don't contribute to this casual attitude we sometimes see toward killing and death. With each new death penalty statute enacted and each execution carried out, our executive, judicial and legislative branches, at both the state and federal level, add to a culture of violence and killing. With each person executed, we're teaching our children that the way to settle scores is through violence, even to the point of taking a human life. Sadly, total executions in the last two years--98 in 1999 and 85 in 2000--mark the highest number of total annual executions since the death penalty was reinstated in 1976. At the same time, I am pleased that the public debate on the death penalty, which was an intense national debate not very long ago, appears to have been revived. In the wake of recent controversies involving DNA technology and the discovery of condemned innocents, we are once again having a national debate on this important issue of justice. Those who favor the death penalty should be pressed to explain why fallible human beings should presume to use the power of the state to extinguished the life of a fellow human being on our collective behalf. Those who oppose the death penalty should demand that explanation adamantly, and at every turn. But only a zealous few try. Our Nation is a great Nation. We have the strongest democracy in the world. We have expended blood and treasure to protect so many fundamental human rights at home and abroad and not always for only our own interests. But we can do better. We should do better. Courtesy of the Internet and CNN International, the world observes, perplexed and sometimes horrified, the violence in our nation. Across the globe, with every American who is executed, the entire world watches and asks how can the Americans, the champions of human rights, compromise their own professed beliefs in this way. Religious groups and leaders express their revulsion at the continued practice of capital punishment. Pope John Paul II frequently appeals to American governors when a death row inmate is about to die. I am pleased that in one case in January 1999, involving an inmate on death row in Missouri, the late Missouri Governor Mel Carnahan heeded the good advice of the pontiff and commuted the killer's sentence to life without parole. That case generated a lot of press--but only as a political issue, rather than a moral question or a human rights challenge. But the Pope is not standing alone against the death penalty. He is joined by the chorus of voices of various people of faith who abhor the death penalty. Religious groups from the National Conference of Catholic Bishops, the United Methodist Church, the Presbyterian Church, the Evangelical Lutheran Church in America, the Mennonites, the Central Conference of American Rabbis, and so many more people of faith have proclaimed their opposition to capital punishment. And, I might add, even conservative Pat Robertson protested the execution in 1998 of Karla Faye Tucker, a born-again Christian on Texas death row. Mr. President, I would like to see the commutation of sentences to life without parole for all death row inmates--whether they are Christians, Muslims, Jews, Buddhists, or some other faith, or no faith at all. The United States' imposition of capital punishment is abhorrent not only to people of faith. Our use of the death penalty also stands in stark contrast to the majority of nations that have abolished the death penalty in law or practice. Even South Africa and Russia--nations that for years were violators of basic human rights and liberties--have abolished the death penalty or are moving toward abolition of the death penalty, respectively. The United Nations Commission on Human Rights has called for a worldwide moratorium on the use of the death penalty. The European Union denies membership in the alliance to those nations that use the death penalty. In fact, it passed a resolution calling for the immediate and unconditional global abolition of the death penalty, and it specifically called on all states within the United States to abolish the death penalty. This is significant because it reflects the unanimous view of the nations with which the United States enjoys its closet relationships--nations that so often follow our lead. What is even more troubling in the international context is that the United States is now one of only six countries that imposes the death penalty for crimes committed by children. I'll repeat that because it is remarkable. We are one of only six nations on this earth that puts to death people who were under 18 years of age when they committed their crimes. The others are Iran, Pakistan, Nigeria, Saudi Arabia and Yemen. These are countries that are often criticized for human rights abuses. When will we rectify this clear human rights violation--the execution of people who were not even adults when they committed the crimes for which they were sentenced to die? Let's look at the numbers. Since 1990, the United States has executed 14 child offenders. That's more than all of the five aforementioned nations combined. In 2000, the rest of the world watched as the United States not only executed four juvenile offenders, but was the only nation to engage in such an egregious practice at all. Even China--the country that many members of Congress, including myself, have criticized for its human rights abuses--apparently has the decency not to execute its children. This is embarrassing. Is this the kind of company we want to keep? Is this the kind of world leader we want to be? But these are the facts, from the last decade of the 20th century to the present. No one, Mr. President, no one can reasonably argue that based on this data, executing child offenders is a normal or acceptable practice in the world community. And I don't think we should be proud of the fact that the United States is the world leader in the execution of child offenders. Is the death penalty a deterrent for our children's conduct, as well as that of adult Americans? The numbers prove that those who believe that capital punishment is an effective deterrent are sadly, sadly mistaken. The Federal Government and most States in the U.S. have a death penalty, while our European counterparts do not. Following the logic of death penalty supporters who believe it is a deterrent, you would think that our European allies, who don't use the death penalty, would have a higher murder rate than the United States. Yet, they don't and it's not even close. In fact, the murder rate in the U.S. is six times higher than the murder rate in Britain, seven times higher than in France, and five times higher than in Sweden. But we don't even need to look across the Atlantic to see that capital punishment has no deterrent effect on crime. The geographical disparities within the United States lead to the same conclusion. Let's compare Wisconsin and Texas. I'm proud of the fact that in 1853, my home state of Wisconsin became the first state in the nation to abolish the death penalty completely. Wisconsin has been death penalty-free for nearly 150 years. In contrast, Texas is the most prodigious user of the death penalty, having executed 241 people since 1976. Let's look at the murder rate in Wisconsin and Texas. During the period 1995 to 1998, Texas has had a murder rate that is nearly double the murder rate in Wisconsin. The same trend can also be detected on a regional scale. The Southern region of the United States has a higher murder rate than any other region. Yet, executions taking place in that region constituted almost 90 percent of executions in the nation as a whole. These and countless other data continue to call into question the argument that the death penalty is a deterrent to murder. In fact, according to a 1995 Hart Research poll, the majority of our nation's police chiefs do not believe the death penalty is a particularly effective law enforcement tool. When asked to rank the various factors in reducing crime, police chiefs rank the death penalty last. Rather, the police chiefs--the people who deal with hardened criminals day in and day out--cite reducing drug abuse as the primary factor in reducing crime, along with a better economy and jobs, simplifying court rules, longer prison sentences, more police officers, and reducing guns. It looks like most police chiefs recognize what our European allies and a few states like Wisconsin have known all along; the death penalty is not an effective deterrent. Let me be clear. I believe murderers and other violent offenders should be severely punished. I'm not seeking to open the prison doors and let murderers come rushing out into our communities. I don't want to free them. The question is: should the death penalty be a means of punishment in our society? One of the most frequent refrains from death penalty supporters is the claim that the majority of Americans support the death penalty. But Mr. President, an August 2000 Gallup poll shows that while 67 percent of Americans support the death penalty, only 28 percent do so without reservations. In contrast, 37 percent support the death penalty with reservations and 26 percent of Americans do not support the death penalty at all. Furthermore, surveys show that when sentencing alternatives are offered, support for the death penalty drops to below 50 percent. And a plurality of Americans prefer life without parole plus restitution for the victim's family to the death penalty. According to a 1993 national poll, 44 percent of Americans supported the alternative of life without parole plus restitution. Only 41 percent preferred the death penalty and 15 percent were unsure. This is remarkable. Sure, if you ask Americans the simple, isolated question of whether they support the death penalty, a majority of Americans will agree. But if you ask them whether they support the death penalty or a realistic, practical alternative sentence like life without parole plus restitution, support for the death penalty falls dramatically to below 50 percent. More Americans support the alternative sentence than the death penalty. The fact that our society relies on killing as punishment is disturbing enough. Even more disturbing, however, is the fact that the States' and federal use of the death penalty is often not consistent with principles of due process, fairness and justice. These principles are the foundation of our criminal justice system and, in a broader sense, the stability of our nation. It is clearer than ever before that we have put innocent people on death row. In addition, statistics show that those States that have the death penalty are more likely to put people to death for killing white victims than for killing black victims. Are we certain that innocent persons are not being executed? Obviously not. Are we certain that racial bias is not infecting the criminal justice system and the administration of the death penalty? I doubt it. It simply cannot be disputed that we are sending innocent people to death. Since the modern death penalty was reinstated in the 1970s, we have released 93 men and women in 22 states from death row. Why? Because they were innocent. Ninety-three men and women sitting on death row, awaiting a firing squad, lethal injection or electrocution, but later found innocent. That's one death row inmate found innocent for every seven executed. One in seven! That's a pretty poor performance for American justice. A wrongful conviction means that the real killer may have gotten away. What an injustice that the victims' loved ones cannot rest because the killer is still not caught. What an injustice that an innocent man or woman has to spend even one day in jail. What a staggering injustice that innocent people are sentenced to death for crimes they did not commit. What a disgrace when we carry out those sentences, actually taking the lives of innocent people in the name of justice. I call my colleagues' attention to the recent example of an Illinois death row inmate, Anthony Porter, who was freed in 1999 after 16 years of his life were wasted awaiting execution for a crime he did not commit. Mr. Porter came within two days of execution when his life was spared only because of questions regarding his mental competency. Mr. Porter owes his freedom, as some previous Illinois death row inmates do, to investigation by Northwestern University journalism students. They persuaded the true killer to confess on videotape. A statement by the true killer's estranged wife that Chicago police pressured her into testifying against Porter further represents the level of unreliability and failures in the administration of the death penalty surrounding this case. College students were able to successfully spare the lives of innocent men. Men were freed from death row not because of technicalities, but because they were truly innocent. Mr. President, it is clear that our criminal justice system is sometimes far from just and sometimes just plain wrong. One is left with the inescapable conclusion that even if it is not absolutely certain, it is very possible that innocent people have been executed. Why? We can all agree that it is profoundly wrong to convict and condemn innocent people to death. But sadly, that's what's happening. With the greater accuracy and sophistication of DNA testing available today compared to even a couple of years ago, states like Illinois are finding that people sitting on death row did not commit the crimes to which earlier, less accurate DNA tests appeared to link them. This DNA technology should be further reviewed and compared to other tests. We should make sure that the most sophisticated, modern DNA tests are made available to those on death row. Some argue that the discovery of the innocence of a death row inmate proves that the system works. This is absurd. How can you say the criminal justice system works when a group of students--not lawyers or investigators but students with no special powers, who were very much outside the system--discover that a man about to be executed was, in fact, innocent? A recent NBC News/Wall Street Journal Poll shows that 63 percent of Americans favor suspending capital punishment until fairness questions can be adequately studied. Americans recognize the failures of our justice system and are demanding answers. A primary reason why our justice system has sometimes been less than just is a series of U.S. Supreme Court decisions that seem to fail to grasp the significance and responsibility of their task when a human life is at stake. The Supreme Court has been narrowly focused on procedural technicalities, ignoring the fact that the death penalty is a unique punishment that cannot be undone to correct mistakes. In Jones v. United States, which involved an inmate on death row in Texas and the interpretation of the 1994 Federal Death Penalty Act, the judge refused to tell the jury that if they deadlocked on the sentence, the law required the judge to impose a sentence of life without possibility of parole. As a result, some jurors were under the grave misunderstanding that lack of unanimity would mean the judge could give a sentence where the defendant might one day go free. The jurors therefore returned a sentence of death. The Supreme Court upheld the lower court's imposition of the death penalty. And one more person will lose a life, when a simple correction of a misunderstanding could have resulted in a severe, yet morally correct, sentence of life without parole. As legal scholar Ronald Dworkin recently observed, ``[t]he Supreme Court has become impatient, and super due process has turned into due process-lite. Its impatience is understandable, but is also unacceptable.'' Mr. President, America's impatience with the protracted appeals of death row inmates is understandable. But this impatience is unacceptable. The ruse to judgment is unacceptable. And the rush to execute men, women and children who might well be innocent is horrifying. The discovery of the innocence of death row inmates and misguided Supreme Court decisions disallowing potentially dispositive and/or exculpatory evidence, however, aren't the only reasons we need to abolish the death penalty. Another reason we need to abolish the death penalty is the continuing evidence of racial bias in our criminal justice system. Our nation is facing a crucial test. A test of moral and political will. We have come a long way through this nation's history, and especially in this century, to dismantle state-sponsored and societal racism. Brown v. Board of Education, ensuring the right to equal educational opportunities for whites and blacks, was decided almost half a century ago. Unfortunately, however, we are still living with vestiges of institutional racism. In some cases, racism can be found at every stage of a capital trial--in the selection of jurors, during the presentation of evidence, when the prosecutor contrasts the race of the victim and defendant to appeal to the prejudice of the jury, and sometimes during jury deliberations. After the 1976 Supreme Court Gregg decision upholding the use of the death penalty, the death penalty was first enacted as a sentence at the federal level with passage of the Drug Kingpin Statute in 1988. Since that time, numerous additional Federal crimes have become death penalty-eligible, bringing the total to about 60 federal crimes today. At the federal level, 20 people currently sit on death row. Another seven men sit on the military's death row. Of those 2 defendants on the federal government's death row, 14 are black and only 4 are white. One defendant is Hispanic and another Asian. That means 16 of the 20 people on federal death row are members of a racial or ethnic minority. That's 80 percent. And the numbers are worse on the military's death row. Six of the seven, or 86 percent, on military death row are minorities. Some of my colleagues may remember the debates of the late 1980's and early 1990's, when Congress considered the Racial Justice Act and other attempts to eradicate racial bias in the administration of capital punishment. A noted study evaluating the role of race in death penalty cases was frequently discussed. This was the study by David Baldus, a professor at the University of Iowa College of Law. The Baldus study found that defendants who kill white victims are more than four times more likely to be sent to death row than defendants who kill black victims. An argument against the Baldus study was made by some opponents of the Racial Justice Act. They argued that we just needed to ``level up'' the playing field. In other words, send all the defendants who killed black victims to death row, too. They argued that legislative remedies were not needed, just tell prosecutors and judges to go after perpetrators of black homicide as strong as against perpetrators of white homicide. I believe such arguments displayed a shocking insensitivity to racial bias in our criminal justice system. Problems with bias and arbitrariness have not escaped the federal death penalty system. In September 2000, the Department of Justice released a report on the federal death penalty system. That report that whether one will live or die in the federal system appears to be related to the color of one's skin or the federal district in which the prosecution takes place. I think we can all agree that the report is deeply disturbing. There is a glaring lack of uniformity in the application of the federal death penalty. Why do these disparities exist? How can they be addressed? The Justice Department report doesn't have answers to these and other questions. I am pleased that Attorney General Janet Reno initiated additional, internal reviews, and it is my fervent hope that the next Attorney General will follow through on this important further study and analysis. One thing is clear: no matter how hard we try, we cannot overcome the inevitable fallibility of being human. That fallibility means that we will be unable to apply the death penalty in a fair and just manner. The risk that we will condemn innocent people to death will always lurk. Mr. President, let's restore some certainty, fairness, and justice to our criminal justice system. Let's have the courage to recognize human fallibility. The American Bar Association has also raised fairness and due process concerns. In 1997, the American Bar Association became the first organization to call for a moratorium on the death penalty. Several states are finally beginning to recognize the great injustice when the ultimate punishment is carried out in a biased and unfair way. In January 2000, Governor George Ryan became the first chief executive to place a moratorium on executions. Moratorium bills have been considered by the legislatures of at least ten states over the last two years. I am glad to see that some states are finally taking steps to correct the practice of legalized killing that was again unleashed by the Supreme Court's Gregg decision in 1976. The first post-Gregg execution took place in 1977 in Utah, when Gary Gilmore did not challenge and instead aggressively sought his execution by a firing squad. The first post-Gregg involuntary execution took place on May 25, 1979. I vividly remember that day. I had just finished my last law school exam that morning. Later that day, I recall turning on the television and watching the news report that Florida had just executed John Spenkelink. I was overcome with a sickening feeling. Here I was, fresh out of law school and firm in my belief that our legal system was advancing through the latter quarter of the twentieth century. Instead, to my great dismay, I was witnessing a throwback to the electric chair, the gallows, and the routine executions of our Nation's earlier history. I haven't forgotten that experience or what I thought and felt on that day. At the beginning of 2001, at the end of a remarkable century and millennium of progress and at the beginning of a new century and millennium with hopes for even greater progress, I cannot help but believe that our progress has been tarnished by our Nation's not only continuing, but increasing use of the death penalty. As of today, the United States has executed 690 people since the reinstatement of the death penalty in 1976. This is astounding and it is embarrassing. We are a Nation that prides itself on the fundamental principles of justice, liberty, equality and due process. We are a Nation that scrutinizes the human rights records of other nations. We are one of the first nations to speak out against torture and killings by foreign governments. It is time for us to look in the mirror. Two former Supreme Court justices did just that. Justice Harry Blackmun penned the following eloquent dissent in 1994: From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants ``deserve'' to die?--cannot be answered in the affirmative. . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. Justice Lewis Powell also had a similar change of mind. Justice Powell dissented from the Furman decision in 1972, which struck down the death penalty as a form of cruel and unusual punishment. He also wrote the decision in McCleskey v. Kemp in 1987, which denied a challenge to the death penalty on the grounds that it was applied in a discriminatory manner against African Americans. In 1991, however, Justice Powell told his biographer that he had decided that capital punishment should be abolished. After sitting on our Nation's highest court for over 20 years, Justices Blackmun and Powell came to understand the randomness and unfairness of the death penalty. Mr. President, it is time for our Nation to follow the lead of these two distinguished jurists and re- visit its support for this form of punishment. At the beginning of 2001, as we enter a new millennium, our society is still far from fully just. The continued use of the death demenas us. The penalty is at odds with our best traditions. It is wrong and it is immoral. The adage ``two wrongs do not make a right,'' could not be more appropriate here. Our Nation has long ago done away with other barbaric punishments like whipping and cutting off the ears of suspected criminals. Just as our nation did away with these punishments as contrary to our humanity and ideals, it is time to abolish the death penalty as we enter the next century. And it's not just a matter of morality. The continued viability of our justice system as a truly just system requires that we do so. And in the world's eyes, the ability of our nation to say truthfully that we are the leader and defender of freedom, liberty and equality demands that we do so. I close with the following remarks from Aundre Herron, an attorney who was recently honored in California for her outstanding service in defense of those charged with capital crimes: . . . [T]he death penalty is America's dark underbelly-- the worst of America--the part we seek desperately to hide from public view. . . . It is here--in the worst of America-- that the death penalty finds its truest and most sinister meaning--the death penalty is where all the contradictions converge. It is this country's way of destroying the evidence of its failures, its hypocrisy, its shame. It is the last relic of America's worst legacies--slavery, segregation, lynching, racism, classism and violence. Abolishing the death penalty will not be an easy task. It will take patience, persistence and courage. As we head to a new millennium, let us leave this archaic practice behind. I ask my colleagues to join me in taking the first step in abolishing the death penalty in our great nation. I also call on each state that authorizes the use of the death penalty to cease this practice. Let us step away from the culture of violence and restore fairness and integrity to our criminal justice system. I ask that the text of the bill be printed in the Record following my remarks.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to introduce the Consumer Credit Fair Dispute Resolution Act of 2001, a bill that will protect and preserve American consumers' right to take their disputes with creditors to court. I first introduced this legislation last year, both as a bill and as an amendment to the bankruptcy reform bill. I am pleased that my distinguished colleague from Vermont, the ranking member of the Judiciary Committee, Senator Leahy, has joined me again as an original cosponsor of this important legislation. Credit card companies and consumer credit lenders are increasingly requiring their customers to use binding arbitration when a dispute arises. Consumers are barred by contract from taking a dispute to court, even small claims court. While arbitration can be an efficient tool to settle claims, it is credible and effective only when consumers enter into it knowingly, intelligently and voluntarily. Unfortunately, that's not happening in the credit card and consumer credit lending arenas. One of the most fundamental principles of our justice system is the constitutional right to take a dispute to court. Indeed, all Americans have the right in civil and criminal cases to a trial by jury. The right to a jury trial in civil cases in Federal court is contained in the Seventh Amendment to the Constitution. Many States provide a similar right to a jury trial in civil matters filed in state court. Some argue that Americans are over-using the courts. Court dockets across the country are congested with civil cases. In part as a response to these concerns, various ways to resolve disputes, short of going to court, have been developed. Alternatives to court litigation are collectively known as alternative dispute resolution, or ADR. ADR includes mediation and arbitration. Mediation and arbitration are often efficient ways to resolve disputes because the parties can have their case heard well before they would have received a trial date in court. Arbitration, like a court proceeding, involves a third party--an arbitrator or arbitration panel. The arbitrator issues a decision after reviewing the arguments by all parties. Arbitration uses rules of evidence and procedure, although it may use rules that are simpler or more flexible than the evidentiary and procedural rules that the parties would follow in a court proceeding. Arbitration can be either binding or non-binding. Non-binding arbitration means that the decision issued by the arbitrator or arbitration panel takes effect only if the parties agree to it after they know what the decision is. In binding arbitration, parties agree in advance to accept and abide by the decision, whatever it is. Some contracts contain clauses that require arbitration to be used to resolve disputes that arise after the contract is signed. This is called ``mandatory arbitration.'' This means that if there is a dispute, the complaining party cannot file suit in court and instead is required to pursue arbitration. ``Mandatory, binding arbitration'' therefore means that under the contract, the parties must use arbitration to resolve a future disagreement and the decision of the arbitrator or arbitration panel is final. The parties have no ability to seek relief in court or through mediation. In fact, if they are not satisfied with the arbitration outcome, they are probably stuck with the decision. Under mandatory, binding arbitration, even if a party believes that the arbitrator did not consider all the facts or follow the law, the party cannot file a suit in court. The only basis for challenging a binding arbitration decision is fairly narrow: if there is reason to believe that the arbitrator committed actual fraud, or was partial, corrupt or guilty of misconduct, or exceeded his or her powers. In contrast, if a dispute is resolved by a court, the parties can have broader grounds upon which to pursue an appeal of the lower court's decision. Because mandatory, binding arbitration is so conclusive, it is a credible means of dispute resolution only when all parties understand the full ramifications of agreeing to it. But that's not what's happening in a variety of contexts--from motor vehicle franchise agreements, to employment agreements, to credit card agreements. I'm proud to have sponsored legislation addressing employment agreements and motor vehicle franchise agreements. Many of my colleagues have joined as cosponsor of one or both bills. And just last spring, my distinguished colleague from Iowa, Senator Grassley, chaired a hearing in the Judiciary Subcommittee on Administrative Oversight and the Courts on contractual mandatory, binding arbitration. That hearing included a discussion of mandatory arbitration in the consumer credit agreement context. There is a growing, menacing trend of credit card companies and consumer credit lenders inserting mandatory, binding arbitration clauses in agreements with consumers. Companies like First USA Bank, American Express, and Green Tree Discount Company unilaterally insert mandatory, binding arbitration clauses in their agreements with consumers, often without the consumer's knowledge or consent. The most common way credit card companies have done this is through the use of a ``bill stuffer.'' Bill stuffers are the advertisements and other materials that credit card companies insert into envelopes with the customers' monthly statements. Some credit card issuers like American Express have placed mandatory arbitration clauses in bill stuffers. The arbitration provision is usually buried in fine print in a mailing that includes a bill and various advertising materials. It is often described in a lengthy legal document that most consumers probably don't even skim, much less read carefully. American Express's mandatory arbitration provision took effect on June 1, 1999. So, if you're an American Express cardholder and you have a dispute with American Express, as of June 1999, you can't take your claim to court, even small claims court. You are bound to use arbitration, and you are bound to the final arbitration decision. In this case, you are also bound to use an arbitration organization selected by American Express, the National Arbitration Forum. American Express is not the only credit card company imposing mandatory arbitration on its customers. First USA Bank, the largest issuer of Visa cards, with 58 million customers, has been doing the same thing since 1997. First USA also alerted its cardholders with a bill stuffer, containing a condensed set of terms and conditions in fine print. The cardholder, by virtue of continuing to use the First USA card, gave up the right to go to court, even small claims court, to resolve a dispute. This growing practice extends beyond credit cards into the consumer loan industry. Consumer credit lenders like Green Tree Consumer Discount Company are inserting mandatory, binding arbitration clauses in their loan agreements. The problem is that these loan agreements are usually adhesion contracts, which means that consumers must either sign the agreement as is, or forego a loan. In other words, consumers lack the bargaining power to have the clause removed. More importantly, when signing on the dotted line of the loan agreement, consumers may not even understand what mandatory arbitration means. In all likelihood, they do not understand that they have just signed away a right to go to court to resolve a dispute with the lender. It might be argued that if consumers are not pleased with being subjected to a mandatory arbitration clause, they can cancel their credit card, or not execute on their loan agreement, and take their business elsewhere. Unfortunately, that's easier said than done. As I mentioned, First USA Bank, the nation's largest Visa card issuer, is part of this questionable practice. In fact, the practice is becoming so pervasive that consumers may soon no longer have an alternative, unless they forego use of a credit card or a consumer loan entirely. Consumers should not be forced to make that choice. Companies like First USA, American Express and Green Tree argue that they rely on mandatory arbitration to resolve disputes faster and cheaper than in court litigation. The claim may be resolved faster but is it really cheaper? Is it as fair as a court of law? I don't think so. Arbitration organizations often charge exorbitant fees to the consumer who brings a dispute. These costs can be much higher than bringing the matter to small claims court and paying a court filing fee. Or, the fees could very well be greater than the consumer's claim. So as a result, a consumer's claim is not necessarily resolved more efficiently with arbitration. It is resolved either at greater cost to the consumer or not at all, if the consumer cannot afford the costs, or the costs outweigh the amount in dispute. In December 2000, in Green Tree Financial Corp. Alabama et. al. v. Randolph, the U.S. Supreme Court found that an arbitration clause that is silent as to the costs and fees of arbitration is enforceable. It, however, left unanswered the question of whether large arbitration costs, which effectively preclude a litigant from vindicating federal statutory rights in the arbitral forum, render the arbitration clause unenforceable. Another significant problem with mandatory, binding arbitration is that the lender gets to decide in advance who the arbitrator will be. In the case of American Express and First USA, they have chosen the National Arbitration Forum. All credit card disputes with consumers involving American Express or First USA are handled by that entity. There would seem to be a significant danger that this would result in an advantage for the lenders who are ``repeat players.'' After all, if the National Arbitration Forum develops a pattern of reaching decisions that favor cardholders, American Express or First USA may very well decide to take their arbitration business elsewhere. A system where the arbitrator has a financial interest in reaching an outcome that favors the credit card company is not a fair alternative dispute resolution system. At least one state court has found that mandatory arbitration provisions in credit card bill stuffers are unenforceable. A suit filed in California state court arose out of a mandatory arbitration provision announced in mailings by Bank of America to its credit card and deposit account holders. In 1998, the California Court of Appeals ruled that the mandatory arbitration clauses unilaterally imposed on the Bank's customers were invalid and unenforceable. The California Supreme Court refused to review the decision of the lower court. As a result, credit card companies in California cannot invoke mandatory arbitration in their disputes with customers. In fact, the American Express bill stuffer notes that the mandatory, binding arbitration provision will not apply to California residents until further notice from the company. The California appellate court decision was wise and well-reasoned, but consumers in other states cannot be sure that all courts will reach the same conclusion. My bill extends the wisdom of the California appellate decision to every credit cardholder and consumer loan borrower. It amends the Federal Arbitration Act to invalidate mandatory, binding arbitration provisions in consumer credit agreements. Now, let me be clear. I believe that arbitration can be a fair and efficient way to settle disputes. I agree we ought to encourage alternative dispute resolution. But I also believe that arbitration is a fair way to settle disputes between consumers and lenders only when it is entered into knowingly and voluntarily by both parties to the dispute after the dispute has arisen. Pre-dispute agreements to take disputes to arbitration cannot be voluntary and knowing in the consumer lending context because the bargaining power of the parties is so unequal. My bill does not prohibit arbitration of consumer credit transactions. It merely prohibits mandatory, binding arbitration provisions in consumer credit agreements. Credit card companies and consumer credit lenders are increasingly slamming the courthouse doors shut on consumers, often unbeknownst to them. This is grossly unjust. We need to restore fairness to the resolution of consumer credit disputes. I urge my colleagues to support the Consumer Credit Fair Dispute Resolution Act. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record following my statement.

Mr. FEINGOLD. Mr. President, I rise today to introduce the Federal Death Penalty Abolition Act of 2001. This bill will abolish the death penalty at the Federal level. It will put an immediate halt to executions and forbid the imposition of the death penalty as a sentence for violations of Federal law. The most recent Gallup poll shows that, while a majority of Americans continue to support capital punishment, this support has reached a nearly 20-year low. This diminished support comes amid rising concern that the system by which we impose the sentence of death is seriously flawed. In the last year or so since I first introduced this bill, the American people have learned about the risk of executing innocent people and other fairness and reliability concerns with the administration of the death penalty. I am confident that in the weeks and months to come, the American people will continue to learn and continue to question the fairness of our death penalty system. In recent years, this Chamber has echoed with debate on violence in America. We've heard about violence in our schools and neighborhoods. Some say it's because of the availability of guns to minors. Some say Hollywood has contributed to a culture of violence. Others argue that the roots of the problem are far deeper and more complex. Whatever the causes, a culture of violence has certainly infected our nation. As schoolhouse killings have shown, our children are now reached by that culture of violence, not merely as casual observers, but as participants and victims. But, I'm not so sure that we in government don't contribute to this casual attitude we sometimes see toward killing and death. With each new death penalty statute enacted and each execution carried out, our executive, judicial and legislative branches, at both the state and federal level, add to a culture of violence and killing. With each person executed, we're teaching our children that the way to settle scores is through violence, even to the point of taking a human life. Sadly, total executions in the last two years--98 in 1999 and 85 in 2000--mark the highest number of total annual executions since the death penalty was reinstated in 1976. At the same time, I am pleased that the public debate on the death penalty, which was an intense national debate not very long ago, appears to have been revived. In the wake of recent controversies involving DNA technology and the discovery of condemned innocents, we are once again having a national debate on this important issue of justice. Those who favor the death penalty should be pressed to explain why fallible human beings should presume to use the power of the state to extinguished the life of a fellow human being on our collective behalf. Those who oppose the death penalty should demand that explanation adamantly, and at every turn. But only a zealous few try. Our Nation is a great Nation. We have the strongest democracy in the world. We have expended blood and treasure to protect so many fundamental human rights at home and abroad and not always for only our own interests. But we can do better. We should do better. Courtesy of the Internet and CNN International, the world observes, perplexed and sometimes horrified, the violence in our nation. Across the globe, with every American who is executed, the entire world watches and asks how can the Americans, the champions of human rights, compromise their own professed beliefs in this way. Religious groups and leaders express their revulsion at the continued practice of capital punishment. Pope John Paul II frequently appeals to American governors when a death row inmate is about to die. I am pleased that in one case in January 1999, involving an inmate on death row in Missouri, the late Missouri Governor Mel Carnahan heeded the good advice of the pontiff and commuted the killer's sentence to life without parole. That case generated a lot of press--but only as a political issue, rather than a moral question or a human rights challenge. But the Pope is not standing alone against the death penalty. He is joined by the chorus of voices of various people of faith who abhor the death penalty. Religious groups from the National Conference of Catholic Bishops, the United Methodist Church, the Presbyterian Church, the Evangelical Lutheran Church in America, the Mennonites, the Central Conference of American Rabbis, and so many more people of faith have proclaimed their opposition to capital punishment. And, I might add, even conservative Pat Robertson protested the execution in 1998 of Karla Faye Tucker, a born-again Christian on Texas death row. Mr. President, I would like to see the commutation of sentences to life without parole for all death row inmates--whether they are Christians, Muslims, Jews, Buddhists, or some other faith, or no faith at all. The United States' imposition of capital punishment is abhorrent not only to people of faith. Our use of the death penalty also stands in stark contrast to the majority of nations that have abolished the death penalty in law or practice. Even South Africa and Russia--nations that for years were violators of basic human rights and liberties--have abolished the death penalty or are moving toward abolition of the death penalty, respectively. The United Nations Commission on Human Rights has called for a worldwide moratorium on the use of the death penalty. The European Union denies membership in the alliance to those nations that use the death penalty. In fact, it passed a resolution calling for the immediate and unconditional global abolition of the death penalty, and it specifically called on all states within the United States to abolish the death penalty. This is significant because it reflects the unanimous view of the nations with which the United States enjoys its closet relationships--nations that so often follow our lead. What is even more troubling in the international context is that the United States is now one of only six countries that imposes the death penalty for crimes committed by children. I'll repeat that because it is remarkable. We are one of only six nations on this earth that puts to death people who were under 18 years of age when they committed their crimes. The others are Iran, Pakistan, Nigeria, Saudi Arabia and Yemen. These are countries that are often criticized for human rights abuses. When will we rectify this clear human rights violation--the execution of people who were not even adults when they committed the crimes for which they were sentenced to die? Let's look at the numbers. Since 1990, the United States has executed 14 child offenders. That's more than all of the five aforementioned nations combined. In 2000, the rest of the world watched as the United States not only executed four juvenile offenders, but was the only nation to engage in such an egregious practice at all. Even China--the country that many members of Congress, including myself, have criticized for its human rights abuses--apparently has the decency not to execute its children. This is embarrassing. Is this the kind of company we want to keep? Is this the kind of world leader we want to be? But these are the facts, from the last decade of the 20th century to the present. No one, Mr. President, no one can reasonably argue that based on this data, executing child offenders is a normal or acceptable practice in the world community. And I don't think we should be proud of the fact that the United States is the world leader in the execution of child offenders. Is the death penalty a deterrent for our children's conduct, as well as that of adult Americans? The numbers prove that those who believe that capital punishment is an effective deterrent are sadly, sadly mistaken. The Federal Government and most States in the U.S. have a death penalty, while our European counterparts do not. Following the logic of death penalty supporters who believe it is a deterrent, you would think that our European allies, who don't use the death penalty, would have a higher murder rate than the United States. Yet, they don't and it's not even close. In fact, the murder rate in the U.S. is six times higher than the murder rate in Britain, seven times higher than in France, and five times higher than in Sweden. But we don't even need to look across the Atlantic to see that capital punishment has no deterrent effect on crime. The geographical disparities within the United States lead to the same conclusion. Let's compare Wisconsin and Texas. I'm proud of the fact that in 1853, my home state of Wisconsin became the first state in the nation to abolish the death penalty completely. Wisconsin has been death penalty-free for nearly 150 years. In contrast, Texas is the most prodigious user of the death penalty, having executed 241 people since 1976. Let's look at the murder rate in Wisconsin and Texas. During the period 1995 to 1998, Texas has had a murder rate that is nearly double the murder rate in Wisconsin. The same trend can also be detected on a regional scale. The Southern region of the United States has a higher murder rate than any other region. Yet, executions taking place in that region constituted almost 90 percent of executions in the nation as a whole. These and countless other data continue to call into question the argument that the death penalty is a deterrent to murder. In fact, according to a 1995 Hart Research poll, the majority of our nation's police chiefs do not believe the death penalty is a particularly effective law enforcement tool. When asked to rank the various factors in reducing crime, police chiefs rank the death penalty last. Rather, the police chiefs--the people who deal with hardened criminals day in and day out--cite reducing drug abuse as the primary factor in reducing crime, along with a better economy and jobs, simplifying court rules, longer prison sentences, more police officers, and reducing guns. It looks like most police chiefs recognize what our European allies and a few states like Wisconsin have known all along; the death penalty is not an effective deterrent. Let me be clear. I believe murderers and other violent offenders should be severely punished. I'm not seeking to open the prison doors and let murderers come rushing out into our communities. I don't want to free them. The question is: should the death penalty be a means of punishment in our society? One of the most frequent refrains from death penalty supporters is the claim that the majority of Americans support the death penalty. But Mr. President, an August 2000 Gallup poll shows that while 67 percent of Americans support the death penalty, only 28 percent do so without reservations. In contrast, 37 percent support the death penalty with reservations and 26 percent of Americans do not support the death penalty at all. Furthermore, surveys show that when sentencing alternatives are offered, support for the death penalty drops to below 50 percent. And a plurality of Americans prefer life without parole plus restitution for the victim's family to the death penalty. According to a 1993 national poll, 44 percent of Americans supported the alternative of life without parole plus restitution. Only 41 percent preferred the death penalty and 15 percent were unsure. This is remarkable. Sure, if you ask Americans the simple, isolated question of whether they support the death penalty, a majority of Americans will agree. But if you ask them whether they support the death penalty or a realistic, practical alternative sentence like life without parole plus restitution, support for the death penalty falls dramatically to below 50 percent. More Americans support the alternative sentence than the death penalty. The fact that our society relies on killing as punishment is disturbing enough. Even more disturbing, however, is the fact that the States' and federal use of the death penalty is often not consistent with principles of due process, fairness and justice. These principles are the foundation of our criminal justice system and, in a broader sense, the stability of our nation. It is clearer than ever before that we have put innocent people on death row. In addition, statistics show that those States that have the death penalty are more likely to put people to death for killing white victims than for killing black victims. Are we certain that innocent persons are not being executed? Obviously not. Are we certain that racial bias is not infecting the criminal justice system and the administration of the death penalty? I doubt it. It simply cannot be disputed that we are sending innocent people to death. Since the modern death penalty was reinstated in the 1970s, we have released 93 men and women in 22 states from death row. Why? Because they were innocent. Ninety-three men and women sitting on death row, awaiting a firing squad, lethal injection or electrocution, but later found innocent. That's one death row inmate found innocent for every seven executed. One in seven! That's a pretty poor performance for American justice. A wrongful conviction means that the real killer may have gotten away. What an injustice that the victims' loved ones cannot rest because the killer is still not caught. What an injustice that an innocent man or woman has to spend even one day in jail. What a staggering injustice that innocent people are sentenced to death for crimes they did not commit. What a disgrace when we carry out those sentences, actually taking the lives of innocent people in the name of justice. I call my colleagues' attention to the recent example of an Illinois death row inmate, Anthony Porter, who was freed in 1999 after 16 years of his life were wasted awaiting execution for a crime he did not commit. Mr. Porter came within two days of execution when his life was spared only because of questions regarding his mental competency. Mr. Porter owes his freedom, as some previous Illinois death row inmates do, to investigation by Northwestern University journalism students. They persuaded the true killer to confess on videotape. A statement by the true killer's estranged wife that Chicago police pressured her into testifying against Porter further represents the level of unreliability and failures in the administration of the death penalty surrounding this case. College students were able to successfully spare the lives of innocent men. Men were freed from death row not because of technicalities, but because they were truly innocent. Mr. President, it is clear that our criminal justice system is sometimes far from just and sometimes just plain wrong. One is left with the inescapable conclusion that even if it is not absolutely certain, it is very possible that innocent people have been executed. Why? We can all agree that it is profoundly wrong to convict and condemn innocent people to death. But sadly, that's what's happening. With the greater accuracy and sophistication of DNA testing available today compared to even a couple of years ago, states like Illinois are finding that people sitting on death row did not commit the crimes to which earlier, less accurate DNA tests appeared to link them. This DNA technology should be further reviewed and compared to other tests. We should make sure that the most sophisticated, modern DNA tests are made available to those on death row. Some argue that the discovery of the innocence of a death row inmate proves that the system works. This is absurd. How can you say the criminal justice system works when a group of students--not lawyers or investigators but students with no special powers, who were very much outside the system--discover that a man about to be executed was, in fact, innocent? A recent NBC News/Wall Street Journal Poll shows that 63 percent of Americans favor suspending capital punishment until fairness questions can be adequately studied. Americans recognize the failures of our justice system and are demanding answers. A primary reason why our justice system has sometimes been less than just is a series of U.S. Supreme Court decisions that seem to fail to grasp the significance and responsibility of their task when a human life is at stake. The Supreme Court has been narrowly focused on procedural technicalities, ignoring the fact that the death penalty is a unique punishment that cannot be undone to correct mistakes. In Jones v. United States, which involved an inmate on death row in Texas and the interpretation of the 1994 Federal Death Penalty Act, the judge refused to tell the jury that if they deadlocked on the sentence, the law required the judge to impose a sentence of life without possibility of parole. As a result, some jurors were under the grave misunderstanding that lack of unanimity would mean the judge could give a sentence where the defendant might one day go free. The jurors therefore returned a sentence of death. The Supreme Court upheld the lower court's imposition of the death penalty. And one more person will lose a life, when a simple correction of a misunderstanding could have resulted in a severe, yet morally correct, sentence of life without parole. As legal scholar Ronald Dworkin recently observed, ``[t]he Supreme Court has become impatient, and super due process has turned into due process-lite. Its impatience is understandable, but is also unacceptable.'' Mr. President, America's impatience with the protracted appeals of death row inmates is understandable. But this impatience is unacceptable. The ruse to judgment is unacceptable. And the rush to execute men, women and children who might well be innocent is horrifying. The discovery of the innocence of death row inmates and misguided Supreme Court decisions disallowing potentially dispositive and/or exculpatory evidence, however, aren't the only reasons we need to abolish the death penalty. Another reason we need to abolish the death penalty is the continuing evidence of racial bias in our criminal justice system. Our nation is facing a crucial test. A test of moral and political will. We have come a long way through this nation's history, and especially in this century, to dismantle state-sponsored and societal racism. Brown v. Board of Education, ensuring the right to equal educational opportunities for whites and blacks, was decided almost half a century ago. Unfortunately, however, we are still living with vestiges of institutional racism. In some cases, racism can be found at every stage of a capital trial--in the selection of jurors, during the presentation of evidence, when the prosecutor contrasts the race of the victim and defendant to appeal to the prejudice of the jury, and sometimes during jury deliberations. After the 1976 Supreme Court Gregg decision upholding the use of the death penalty, the death penalty was first enacted as a sentence at the federal level with passage of the Drug Kingpin Statute in 1988. Since that time, numerous additional Federal crimes have become death penalty-eligible, bringing the total to about 60 federal crimes today. At the federal level, 20 people currently sit on death row. Another seven men sit on the military's death row. Of those 2 defendants on the federal government's death row, 14 are black and only 4 are white. One defendant is Hispanic and another Asian. That means 16 of the 20 people on federal death row are members of a racial or ethnic minority. That's 80 percent. And the numbers are worse on the military's death row. Six of the seven, or 86 percent, on military death row are minorities. Some of my colleagues may remember the debates of the late 1980's and early 1990's, when Congress considered the Racial Justice Act and other attempts to eradicate racial bias in the administration of capital punishment. A noted study evaluating the role of race in death penalty cases was frequently discussed. This was the study by David Baldus, a professor at the University of Iowa College of Law. The Baldus study found that defendants who kill white victims are more than four times more likely to be sent to death row than defendants who kill black victims. An argument against the Baldus study was made by some opponents of the Racial Justice Act. They argued that we just needed to ``level up'' the playing field. In other words, send all the defendants who killed black victims to death row, too. They argued that legislative remedies were not needed, just tell prosecutors and judges to go after perpetrators of black homicide as strong as against perpetrators of white homicide. I believe such arguments displayed a shocking insensitivity to racial bias in our criminal justice system. Problems with bias and arbitrariness have not escaped the federal death penalty system. In September 2000, the Department of Justice released a report on the federal death penalty system. That report that whether one will live or die in the federal system appears to be related to the color of one's skin or the federal district in which the prosecution takes place. I think we can all agree that the report is deeply disturbing. There is a glaring lack of uniformity in the application of the federal death penalty. Why do these disparities exist? How can they be addressed? The Justice Department report doesn't have answers to these and other questions. I am pleased that Attorney General Janet Reno initiated additional, internal reviews, and it is my fervent hope that the next Attorney General will follow through on this important further study and analysis. One thing is clear: no matter how hard we try, we cannot overcome the inevitable fallibility of being human. That fallibility means that we will be unable to apply the death penalty in a fair and just manner. The risk that we will condemn innocent people to death will always lurk. Mr. President, let's restore some certainty, fairness, and justice to our criminal justice system. Let's have the courage to recognize human fallibility. The American Bar Association has also raised fairness and due process concerns. In 1997, the American Bar Association became the first organization to call for a moratorium on the death penalty. Several states are finally beginning to recognize the great injustice when the ultimate punishment is carried out in a biased and unfair way. In January 2000, Governor George Ryan became the first chief executive to place a moratorium on executions. Moratorium bills have been considered by the legislatures of at least ten states over the last two years. I am glad to see that some states are finally taking steps to correct the practice of legalized killing that was again unleashed by the Supreme Court's Gregg decision in 1976. The first post-Gregg execution took place in 1977 in Utah, when Gary Gilmore did not challenge and instead aggressively sought his execution by a firing squad. The first post-Gregg involuntary execution took place on May 25, 1979. I vividly remember that day. I had just finished my last law school exam that morning. Later that day, I recall turning on the television and watching the news report that Florida had just executed John Spenkelink. I was overcome with a sickening feeling. Here I was, fresh out of law school and firm in my belief that our legal system was advancing through the latter quarter of the twentieth century. Instead, to my great dismay, I was witnessing a throwback to the electric chair, the gallows, and the routine executions of our Nation's earlier history. I haven't forgotten that experience or what I thought and felt on that day. At the beginning of 2001, at the end of a remarkable century and millennium of progress and at the beginning of a new century and millennium with hopes for even greater progress, I cannot help but believe that our progress has been tarnished by our Nation's not only continuing, but increasing use of the death penalty. As of today, the United States has executed 690 people since the reinstatement of the death penalty in 1976. This is astounding and it is embarrassing. We are a Nation that prides itself on the fundamental principles of justice, liberty, equality and due process. We are a Nation that scrutinizes the human rights records of other nations. We are one of the first nations to speak out against torture and killings by foreign governments. It is time for us to look in the mirror. Two former Supreme Court justices did just that. Justice Harry Blackmun penned the following eloquent dissent in 1994: From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants ``deserve'' to die?--cannot be answered in the affirmative. . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. Justice Lewis Powell also had a similar change of mind. Justice Powell dissented from the Furman decision in 1972, which struck down the death penalty as a form of cruel and unusual punishment. He also wrote the decision in McCleskey v. Kemp in 1987, which denied a challenge to the death penalty on the grounds that it was applied in a discriminatory manner against African Americans. In 1991, however, Justice Powell told his biographer that he had decided that capital punishment should be abolished. After sitting on our Nation's highest court for over 20 years, Justices Blackmun and Powell came to understand the randomness and unfairness of the death penalty. Mr. President, it is time for our Nation to follow the lead of these two distinguished jurists and re- visit its support for this form of punishment. At the beginning of 2001, as we enter a new millennium, our society is still far from fully just. The continued use of the death demenas us. The penalty is at odds with our best traditions. It is wrong and it is immoral. The adage ``two wrongs do not make a right,'' could not be more appropriate here. Our Nation has long ago done away with other barbaric punishments like whipping and cutting off the ears of suspected criminals. Just as our nation did away with these punishments as contrary to our humanity and ideals, it is time to abolish the death penalty as we enter the next century. And it's not just a matter of morality. The continued viability of our justice system as a truly just system requires that we do so. And in the world's eyes, the ability of our nation to say truthfully that we are the leader and defender of freedom, liberty and equality demands that we do so. I close with the following remarks from Aundre Herron, an attorney who was recently honored in California for her outstanding service in defense of those charged with capital crimes: . . . [T]he death penalty is America's dark underbelly-- the worst of America--the part we seek desperately to hide from public view. . . . It is here--in the worst of America-- that the death penalty finds its truest and most sinister meaning--the death penalty is where all the contradictions converge. It is this country's way of destroying the evidence of its failures, its hypocrisy, its shame. It is the last relic of America's worst legacies--slavery, segregation, lynching, racism, classism and violence. Abolishing the death penalty will not be an easy task. It will take patience, persistence and courage. As we head to a new millennium, let us leave this archaic practice behind. I ask my colleagues to join me in taking the first step in abolishing the death penalty in our great nation. I also call on each state that authorizes the use of the death penalty to cease this practice. Let us step away from the culture of violence and restore fairness and integrity to our criminal justice system. I ask that the text of the bill be printed in the Record following my remarks.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to introduce the Civil Rights Procedures Protection Act of 2001. I am pleased that my cosponsors in the 106th Congress--Senators Leahy, Kennedy and Torricelli--have joined with me again in support of this legislation. This bill addresses the rapidly growing and very troubling practice of employers conditioning employment or professional advancement upon the employees' willingness to submit claims of discrimination or harassment to arbitration. In other words, employees who raise claims of harassment or discrimination must submit those claims to arbitration, foregoing the right to go to court and any other remedies that may exist under the laws of this nation. The right to seek redress in a court of law--including the right to a jury trial--is one of the most basic rights accorded to employees in this nation. In the Civil Rights Act of 1991, Congress expressly created this right to a jury trial for employees when it voted overwhelmingly to amend Title VII of the Civil Rights Act of 1964. But employers are undermining the intent of the Civil Rights Act of 1991 and other civil rights and labor laws, such as the Age Discrimination in Employment Act of 1967, by requiring all employees to submit to mandatory, binding arbitration as a condition of employment or advancement before a claim has arisen. Increasingly, working men and women are faced with the choice of accepting a mandatory arbitration clause in their employment agreement or no employment at all. Despite the appearance of a freely negotiated contract, the reality often amounts to a non-negotiable requirement that prospective employees relinquish their rights to redress in a court of law. Mandatory arbitration allows employers to tell all current and prospective employees in effect, ``If you want to work for us, you will have to check your rights at the door.'' These requirements have been referred to as ``front door'' contracts: they require an employee to surrender certain rights in order to ``get in the front door.'' As a nation which values work and deplores discrimination, we should not allow this practice to continue. How then does the practice of mandatory, binding arbitration comport with the purpose and spirit of our nation's civil rights and sexual harassment laws? The answer is simply that it does not. To address the growing incidents of compulsory arbitration, the Civil Rights Procedures Protection Act of 2001 amends seven civil rights statutes to guarantee that a federal civil rights or sexual harassment plaintiff can still seek the protection of the U.S. courts rather than be forced into mandatory, binding arbitration. Specifically, this legislation affects claims raised under Title VII of the Civil Rights Act of 1965, Section 505 of the Rehabilitation Act of 1973, the Americans with Disabilities Act, Section 1977 of the Revised Statutes, the Equal Pay Act, the Family and Medical Leave Act and the Federal Arbitration Act, FAA. By amending the Federal Arbitration Act, the protections of this legislation are extended to claims of unlawful discrimination arising under State or local law and other Federal laws that prohibit job discrimination. This bill is not anti-arbitration, anti-mediation, or anti- alternative dispute resolution. I have long been and will remain a strong supporter of voluntary, alternative methods of dispute resolution that allow the parties to choose whether to go to court. Rather, this bill targets only mandatory, binding arbitration clauses in employment contracts entered into by the employer and employee before a dispute has even arisen. The 107th Congress marks the fifth successive Congress in which I have introduced this important legislation. In recent years, we have made some advances in addressing the unfair use of mandatory, binding arbitration clauses. As a result of a hearing in the Banking Committee in 1998 and a series of articles and editorials in prominent periodicals, the National Association of Securities Dealers, NASD, agreed to remove the mandatory binding arbitration clause from its Form U-4, which all prospective securities dealers sign as a condition of employment. The NASD's decision to remove the binding arbitration clause, however, does not prohibit its constituent organizations from including a mandatory, binding arbitration clause in their own employment agreements, even if it is not mandated by the industry as a whole. Last spring, the Judiciary Subcommittee on Administrative Oversight and the Courts, chaired by my distinguished colleague from Iowa, Senator Grassley, held a hearing on contractual mandatory, binding arbitration and highlighted the problem in the employment area. These are positive developments, but the trend toward the use of mandatory, binding arbitration clauses continues. A legislative fix is needed. The Civil Rights Procedures Protection Act restores the right of working men and women to pursue their claims in the venue that they choose, which, in turn, restores the spirit of our nation's civil rights and sexual harassment laws. I ask my colleagues to join me in supporting this important legislation. Mr. President, I ask unanimous consent that the text of this legislation be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to introduce the Civil Rights Procedures Protection Act of 2001. I am pleased that my cosponsors in the 106th Congress--Senators Leahy, Kennedy and Torricelli--have joined with me again in support of this legislation. This bill addresses the rapidly growing and very troubling practice of employers conditioning employment or professional advancement upon the employees' willingness to submit claims of discrimination or harassment to arbitration. In other words, employees who raise claims of harassment or discrimination must submit those claims to arbitration, foregoing the right to go to court and any other remedies that may exist under the laws of this nation. The right to seek redress in a court of law--including the right to a jury trial--is one of the most basic rights accorded to employees in this nation. In the Civil Rights Act of 1991, Congress expressly created this right to a jury trial for employees when it voted overwhelmingly to amend Title VII of the Civil Rights Act of 1964. But employers are undermining the intent of the Civil Rights Act of 1991 and other civil rights and labor laws, such as the Age Discrimination in Employment Act of 1967, by requiring all employees to submit to mandatory, binding arbitration as a condition of employment or advancement before a claim has arisen. Increasingly, working men and women are faced with the choice of accepting a mandatory arbitration clause in their employment agreement or no employment at all. Despite the appearance of a freely negotiated contract, the reality often amounts to a non-negotiable requirement that prospective employees relinquish their rights to redress in a court of law. Mandatory arbitration allows employers to tell all current and prospective employees in effect, ``If you want to work for us, you will have to check your rights at the door.'' These requirements have been referred to as ``front door'' contracts: they require an employee to surrender certain rights in order to ``get in the front door.'' As a nation which values work and deplores discrimination, we should not allow this practice to continue. How then does the practice of mandatory, binding arbitration comport with the purpose and spirit of our nation's civil rights and sexual harassment laws? The answer is simply that it does not. To address the growing incidents of compulsory arbitration, the Civil Rights Procedures Protection Act of 2001 amends seven civil rights statutes to guarantee that a federal civil rights or sexual harassment plaintiff can still seek the protection of the U.S. courts rather than be forced into mandatory, binding arbitration. Specifically, this legislation affects claims raised under Title VII of the Civil Rights Act of 1965, Section 505 of the Rehabilitation Act of 1973, the Americans with Disabilities Act, Section 1977 of the Revised Statutes, the Equal Pay Act, the Family and Medical Leave Act and the Federal Arbitration Act, FAA. By amending the Federal Arbitration Act, the protections of this legislation are extended to claims of unlawful discrimination arising under State or local law and other Federal laws that prohibit job discrimination. This bill is not anti-arbitration, anti-mediation, or anti- alternative dispute resolution. I have long been and will remain a strong supporter of voluntary, alternative methods of dispute resolution that allow the parties to choose whether to go to court. Rather, this bill targets only mandatory, binding arbitration clauses in employment contracts entered into by the employer and employee before a dispute has even arisen. The 107th Congress marks the fifth successive Congress in which I have introduced this important legislation. In recent years, we have made some advances in addressing the unfair use of mandatory, binding arbitration clauses. As a result of a hearing in the Banking Committee in 1998 and a series of articles and editorials in prominent periodicals, the National Association of Securities Dealers, NASD, agreed to remove the mandatory binding arbitration clause from its Form U-4, which all prospective securities dealers sign as a condition of employment. The NASD's decision to remove the binding arbitration clause, however, does not prohibit its constituent organizations from including a mandatory, binding arbitration clause in their own employment agreements, even if it is not mandated by the industry as a whole. Last spring, the Judiciary Subcommittee on Administrative Oversight and the Courts, chaired by my distinguished colleague from Iowa, Senator Grassley, held a hearing on contractual mandatory, binding arbitration and highlighted the problem in the employment area. These are positive developments, but the trend toward the use of mandatory, binding arbitration clauses continues. A legislative fix is needed. The Civil Rights Procedures Protection Act restores the right of working men and women to pursue their claims in the venue that they choose, which, in turn, restores the spirit of our nation's civil rights and sexual harassment laws. I ask my colleagues to join me in supporting this important legislation. Mr. President, I ask unanimous consent that the text of this legislation be printed in the Record.