Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. I thank the Senator for his tremendous leadership in opposition to this constitutional amendment. I thank him for his leadership on this whole issue. the bill of rights and freedom of expression Honoring the flag demands that we consider carefully the history of the Bill of Rights before we choose to alter it. Many of our Founders sought a Bill of Rights because, in their view, the Constitution failed properly to consider and protect the basic and fundamental rights of individuals. Although many Federalists, including James Madison, felt that the limited powers conferred on the government by the Constitution were sufficiently narrow so as to leave those rights unquestioned, the Bill of Rights was adopted in order to provide reluctant states with the assurances necessary for approval of the Constitution. From this beginning in compromise 209 years ago, the Bill of Rights has evolved into the single greatest protector of individual freedom in history. It has done so, in large measure, because attempts to narrow it have, to date, been rejected. It was fundamental to the founding of this Nation that individuals should be free to express themselves, secure in the knowledge that government will not suppress their expression because of its content. Our Nation's Founders created this new country to escape oppression at the hands of the state. They firmly believed that government should not limit one's ability to speak out. They wrote into our fundamental charter the ten simple words: ``Congress shall make no law . . . abridging the freedom of speech.'' Over time, this Nation has grappled with the boundaries of free speech, regulating defamation or obscenity. That government may regulate some expression, however, does not change the law's presumption against content-based regulation. In the words of Justice Scalia: ``[T]he government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.'' We need not concern ourselves with the parameters of speech that can be proscribed, because the expression in question--political expression--is clearly protected under the first amendment. The defining standard that has marked the history of free expression in this Nation is that speech may not be regulated based upon its content. The presumptive invalidity of content regulation protects all forms of speech--that with which we agree, as well as that to which we object. To do otherwise would make hollow, at best, the promise of free speech. As the Supreme Court held in Street v. New York: ``[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.'' My colleagues, this amendment departs from that noble and time- honored standard. It seeks instead to prohibit expression solely because of its content. Proponents of this amendment have made plain that they direct their effort at expression that they deem ``disrespectful.'' Even more troubling is that this amendment leaves the determination of what is disrespectful to the government. For the promise of free expression to be fulfilled, the first amendment must protect those who rise to challenge the existing wisdom--to raise those views that may anger or offend. As Justice William O. Douglas observed, free speech, ``may indeed serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.'' Adherence to this ideal is what separates America from oppressive regimes across the world. We tolerate dissent and protect dissenters. They suppress dissent and jail dissenters, or condemn dissenters to a fate still more grave. The first amendment to the United States Constitution is not infallible. It cannot sanitize free expression any more than it can impart wisdom to thoughts which otherwise have none. Nor can the first amendment ensure that free expression will always comport with the views of a majority of the American people or the American government. What the first amendment does promise, however, is the right of each individual in this Nation to stand and make a case, regardless of particular point of view, and to do so absent fear of government censor. This right is worthy of preserving. It is this right that is at risk today. When we start down the road to distinguishing between whose message is appropriate and whose is not, we risk something far greater than the right to burn a flag as political expression. Much of what is clearly protected expression can easily be deemed objectionable. So it is with flag burning. As the Supreme Court has repeatedly stated, the act of flag burning cannot be divorced from the context in which it occurs--that of political expression. This Nation has a proud and storied history of political expression--much of which could easily be characterized as objectionable. Does any Member of this body believe that if the question had been put to the crown as to whether or not the speech and expression emanating from the colonies, in the form of Thomas Paine's ``Common Sense'' or the Articles of Confederation, should be sustained, the answer would have been anything but a resounding no? Could not the same be said of messages of the civil rights and suffrage movements? This Nation was born of dissent. Contrary to the view that it weakens our democracy, this Nation stands today as the leader of the free world because we tolerate these varying forms of dissent--not because we persecute them. In seeking to protect the American flag, this amendment asks us to depart from the fundamental ideal that government shall not suppress expression solely because it is disagreeable. As Justice Brennan wrote for the majority in Texas v. Johnson: If there is a bedrock principle underlying the first amendment, it is that the government may not prohibit expression of an idea simply because society finds the idea itself offensive or disagreeable. We have not recognized an exception to this principle even where our flag has been involved. So this amendment runs counter to the very premise of the Bill of Rights--that the rights of individuals should remain beyond the purview of unwarranted government intervention. That is what lead to the adoption of the Bill of Rights. In the words of Justice Jackson, speaking for the Supreme Court in 1943: The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Yet, this amendment would do exactly that. It would subject the fate of one of our most fundamental rights to turn upon the outcome of elections. What comfort is a first amendment that tells the people that the appropriateness of their political expression will be left to the government? In charting a divergent course, this amendment would create that exception--an exception at odds with free expression and with our history of liberty. If adopted, this amendment would for the first time in our history, signal an unprecedented, misguided, and troubling departure from our history as a free society. values During this debate and debates like it that often occur in years divisible by four, we often hear a great deal about values. We often hear a great deal about the kinds of things we are teaching our children. We often hear aspirations for this amendment that appear at least a little exaggerated: that it's going to stop the downward slide that our culture has supposedly been on since the 1940s, that it's going to improve our schools, that it even might help get rid of bad movies. All kidding aside, when some proponents of the amendment start talking about this amendment as a fight over values, I get nervous. It reminds me of the ``culture war'' that some have invoked in the past decade. We do not need to create one more source of division and divisiveness. We need understanding and tolerance and community. In any event, I am skeptical as to whether the alleged increased incidence of disrespect for the flag, supposedly stemming from a Supreme Court decision in 1989, has caused the purported deterioration in our culture that some have cited. If it is, passing this amendment is surely not going to stop it. What this amendment will do is abridge the most precious freedom and the most important principle that our country stands for, the right of free speech. I do not say ``most precious'' and ``most important'' lightly. What message is curtailing that freedom going to send to our children? What values are we upholding by taking this extreme step to deal with a problem that by all accounts is not severe at all? A fine piece in the March 22 Milwaukee Journal Sentinel reported that ``[o]ne academic research found fewer than 45 flag burnings between 1777, when the flag was adopted, and 1989.'' Similarly, when the Judiciary Committee examined the issue last year, the Congressional Research Service found 36 reported cases of flag burning or other physical acts of disrespect to the flag. And for that we are going to amend, with unknown consequences, the most basic right of our citizens? I respectfully disagree with the supporters of the amendment about the effect that this issue has on children. We can send no better, no stronger, no more meaningful message to our children about the principles and the values of this country than to explain to them that the beauty and the strength of this country is in its freedoms, not in its symbols. When we uphold first amendment freedoms despite the efforts of misguided and despicable people who want to provoke our wrath, we send a message to our children of what America is really about. Our country is far too strong to be threatened by those who burn the flag. We need to teach our children, and we should teach our children, and virtually all of us do teach our children, that it is wrong to burn the flag. We don't need to empower the government to put people in jail for doing it in order to make that lesson plain and powerful. Ironically, some supporters of the amendment have said that the amendment was going to help create community in this country. As if a law that attempts to legislate patriotism can create community. As if bringing the full wrath of the criminal law and the power of the state down on political dissenters is going to do anything other than encourage more people who want to grandstand their dissent and imagine themselves ``martyrs for the cause.'' We all know that's what will happen the minute this amendment goes into force. More flag burnings and other despicable acts of disrespect to the flag, not fewer. Will the amendment make these acts any more despicable than they are today? Certainly not. Will it make us love the flag any more than we do today? No. Will the new law deter these acts? I doubt it. I particularly doubt it in light of the testimony we heard before the Judiciary Committee that supporters of the amendment think that the punishment for violators of the statute that this amendment will allow Congress to pass ought to be a citation and a fine, or maybe some community service or required classes, not jail time. So now it turns out we are going to amend the Bill of Rights, the very heart of the Constitution, in order to give the Congress of the United States the power to issue what the ranking Democratic member of the Judiciary Committee, Senator Leahy, aptly called ``traffic tickets'' to people who burn the flag. To me that makes no sense at all. General Brady of the Citizens Flag Alliance told the Judiciary Committee that the government ought to require flag burners to attend classes on the meaning and importance of the flag. Frankly that sanction is even more troubling. As a sanction for expressing political dissent, the government is going to force people to take classes to understand the ``politically correct'' way to think about the flag. Are ``reeducation'' programs to become the American way? What this debate is really about is not whether flag burning is a good idea, not whether we love and respect our flag, but whether the threat to our country from those who would burn the flag is so great that we must sacrifice the power and majesty of the first amendment to the Constitution in order to prosecute them. is flag burning a problem? Some argue that we must amend the Constitution in order to preserve the symbolic value of the U.S. flag. They do so, however, in the absence of any evidence that flag burning is rampant today, or that it may be in the future. Perhaps more importantly, this amendment is offered in the absence of any evidence that the symbolic value of the flag has in any way been compromised. No evidence has been offered to show that the handful of misguided individuals who may burn a flag each year have any effect whatsoever on this Nation's love of the flag or our democratic way of life. Respect of this Nation for the flag is unparalleled. The citizens of this Nation love and respect the flag for varied and deeply personal reasons--not because the Constitution imposes this responsibility upon them. As an editorial in the Lacrosse, Wisconsin, Tribune pointed out: Allegiance that is voluntary is something beyond price. But allegiance extracted by statute--or, worse yet, by Constitutional fiat--wouldn't be worth the paper the amendment was drafted on. It is the very fact that the flag is voluntarily honored that makes it a great and powerful symbol. The suggestion that we can mandate, through an amendment to the Constitution, respect for the flag or any other symbol ignores the premise underlying patriotism. More importantly, it belies the traditional notions of freedom found in our Constitution. conclusion Mr. President, the rights at the heart of this debate are far too fundamental and far too important to be subjected to the uncertainty created by this amendment. We must not abandon two centuries of free expression in favor of an unwarranted and ill-defined standard which allows government to choose whose political message is worthy of protection and whose is not. This is counter to the very freedoms the flag symbolizes. The very idea that a handful of misguided people could cause this Nation--a Nation which has, from its inception been a beacon of individual liberty, a Nation which has defended, both at home and abroad, the right of individuals to be free--to retreat from the fundamental American principle that speech should not be regulated based upon its content is cause for great concern. We will be paying false tribute to the flag if in our zeal to protect it we diminish the very freedoms it represents. The true promise of this great Nation is rooted in our Constitution. Ultimately, the fulfillment of this promise lies in preservation of this great covenant, not just our symbols. If we sacrifice our principles, ultimately our symbols will represent something less than they should. The Capitol dome is not our Constitution. The national anthem is not our form of government. And the flag, by itself, is not our Nation. Yes, let us honor the ``broad stripes and bright stars * * * so gallantly streaming.'' But we best honor that for which our flag stands when we protect the Constitution and its Bill of Rights. In that way, we will best ensure that our Star Spangled Banner shall yet wave over a land that is still free.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, we in the Senate speak today to honor the American flag, the symbol of our Nation. Both those who favor and those who oppose the amendment to the Constitution now pending do so. We all, of course, seek to honor the flag. I dare say that there is not a Senator among us who does not feel goose bumps when first looking up at the dome of the Capitol and seeing our flag. I would wager that no U.S. Senator fails to get a lump in the throat when standing to the strains of the national anthem. And I am confident that there is none among us whose eyes do not sometimes mist over when watching those seven bars of red and six of white ripple in the breeze and tug at the heart. But, my colleagues, honoring the flag demands that we here fully and fairly debate this amendment. Amending the Constitution is an undertaking of the greatest import. For the Congress to propose an amendment to the Constitution of the United States on the basis of anything less than a full--even an exhaustive--debate would show less than the full respect due to the flag and the Constitution that it represents. Honor demands that we view any effort to amend the Constitution with trepidation. Since the adoption of the Bill of Rights in 1791, America has amended its Constitution on only 17 occasions. Our Constitution has served this Nation well and withstood the test of time, in large part because Congress has resisted the urge to respond to every adversity, real or imagined, with a constitutional amendment. We should exercise restraint in amending this great charter. We honor the American flag because we love ``the Republic for which it stands.'' We honor the banner because we cherish ``one Nation . . . with liberty and justice for all.'' We honor the flag because it represents a Constitution, that solemn commitment; and a Bill of Rights, that charter of liberty; unrivaled in the history of humankind. Honor demands that we seek to protect not just the flag, but the principles in that Constitution and that Bill of Rights--principles of freedom, opportunity, and liberty. I believe these principles, as much as our Nation's cherished symbols, frame our history and define our Nation. As dearly as we hold the flag, we must hold these principles at least as dearly. Yes, there have been some handfuls of sociopaths who burn our flag to thrust a firebrand in our eye. The question before us today is: Will the misguided actions of these few misfits cause us to curtail our fundamental principles of freedom? We would only grant them victory if we allow their despicable acts to goad us into desecrating the greatest protection of individual rights in human history--our Bill of Rights. As Senator Bob Kerrey has said: Patriotism calls upon us to be brave enough to endure and withstand such an act--to tolerate the intolerable. Let us show our strength, by not rising to the bait. Let us show our bravery, by not giving the flag burners what they want. Let us show our faith in the strength of this country and its institutions, by not lashing out in anger at those who would defile our flag. The costs of this amendment would exact a far too great a price to pay. This amendment, if adopted, would criminalize the very acts that the Supreme Court has held to be protected by the first amendment. This amendment would clearly and intentionally erode the Bill of Rights. This amendment would have an unprecedented, direct, and adverse effect on the freedoms embodies in the Bill of Rights. For the first time in our history, this amendment would employ the Constitution and the Bill of Rights--both premised on the idea of limiting the Government--to limit individual rights, and, in particular, the freedom of speech. Our former colleague, Senator John Glenn, said it very well last year. He said: Our revered symbol stands for freedom, but is not freedom itself. We must not let those who revile our way of life trick us into diminishing our great gift or even take a chance of diminishing our freedoms. I am very proud to attempt to carry on John Glenn's fight against this ill-advised amendment. The Bill of Rights is too fundamental to our history, too important to our people, and too necessary to our future, for us to do anything else. Honoring the flag demands that we also question the vagueness of the language of the amendment. Our Constitution Subcommittee heard testimony that the term ``flag of the United States,'' as used in this amendment, is ``problematic'' and so ``riddled with ambiguity'' as to ``war with the due process norm that the law should warn before it strikes.'' Even supporters of the amendment, including former Attorney General William Barr, have acknowledged that the term ``flag'' could mean any of a number of different things. No one can assure us as to what the term ``flag'' will mean other than to suggest it will be up to the governments of particular jurisdictions. How would the amendment affect flags on T-shirts? How would the amendment affect flags on scarfs? In the memorable example given by the late and revered Senator John Chafee last year, How would the amendment affect a handmade flag rug? Now the amendment, of course, does not make anything illegal by itself. It simply gives the Congress the power to prohibit the physical desecration of the flag. But the question is still a powerful one. We must still ask: What kind of statute would this amendment insulate from constitutional attack? Would this amendment permit Congress to enact a statute that would criminalize wearing a T-shirt with a flag on it? Or could Congress criminalize tearing such a T-shirt? Would the amendment permit Congress to criminalize wearing a scarf with a flag on it? Or could Congress criminalize spitting on such a scarf? Would this amendment permit Congress to criminalize making a rug with a flag on it? Or could Congress criminalize stepping on such a rug? More generally, would the amendment allow Congress to enact statutes that permit the prosecution of people based on the views they express when they defile the flag? Consider two cases: In case one, a person smears blood on a flag while screaming protest of U.S. involvement in a foreign war. In case two, another person drips blood on a flag after suffering an injury at a summertime football game. After adoption of this amendment, would it be constitutional to prosecute the one who spoke and not prosecute the other, who did the same thing without speaking? Here's another example. My colleagues may remember the very exciting victory of the U.S. Women's Soccer team in the Women's World Cup last year. A thrilling moment for sure, and tens of thousands of very patriotic Americans cheered the heroic deeds of the women who represented our country. That evening, another soccer game was played here in Washington, DC, involving this city's major league soccer team, D.C. United. Many of the same fans who cheered the U.S. women that afternoon turned out to watch the D.C. United soccer team. Some of those fans, seeking to play for the TV cameras and their fellow fans brought a prop, which they unfurled during the game. Here is a picture of it. As you can see, it is an actual flag. It is not a representation or a picture. It is an actual flag of the United States with the words ``Thanks Girls!'' written on it with some type of chalk or marker. Obviously the people who defaced this flag intended no disrespect to the United States or the flag. They were excited soccer fans, and probably very patriotic Americans. I wonder if the sponsors of this amendment can be sure of the answer to this question: Would the statute that Congress passes to prohibit flag desecration after this constitutional amendment is ratified allow for these people to be prosecuted? I think it is a fair question. I think most of us would hope not. But how would the police or the prosecutors make that decision? If they look at the message and the beliefs of the people who have written on the flag, isn't that exactly the kind of content discrimination that the first amendment is designed to prohibit? Do we really want the government examining the motives of those who deface the flag to see if they are patriotic or well meaning enough to avoid discrimination? I don't think so. I think that is what the first amendment is all about: to protect against Government inquiry into a citizen's political beliefs. On the other hand, if we have a completely content-neutral statute and enforcement that does not look at the motives of those who deface the flag, we might end up prosecuting the excited and patriotic soccer fans shown in this poster. Obviously, I don't think we want that either. So this example really shows the difficulties with outlawing desecration of the flag. People in this country use the flag to express joy and patriotism as well as opposition to the Government. And the traditions of our country, our respect for free political expression, demands that we not criminalize conduct that we would otherwise accept if it were motivated by patriotism instead of political dissent. Some people call these kinds of examples ``wacky hypotheticals.'' But we do not have reliable answers to these questions. And when you are talking about amending the Constitution, you have a duty to consider and address hypotheticals. After all, it is not easy to correct a mistaken Constitution. We cannot just, by unanimous consent, pass a technical corrections bill to fix an unintended consequence of a constitutional amendment. Let me share another case that I witnessed not far from this Senate Chamber. I was eating dinner at the restaurant called ``America'' over in Union Station. We noticed that the menu is colored like a giant American flag. We talked about having to be careful not to spill anything on it and how damaging our menu might be a crime under this amendment. Then we forgot about it and returned to our meal. But just a half hour later, there was a big commotion in the corner of the restaurant, and we turned to see a woman frantically trying to put out a fire that had started when her oversized American flag menu had gotten too close to the small candles on the table. Now I hope that that woman was not engaged in an angry argument over the Government. But I suppose that is something that the police might have to investigate if this amendment and a statute that it authorized became law. Don't the police have more important things to investigate than whether the burning of a menu might violate the Constitution? Some have been misled into believing that one can pull a flag off a building, burn it, and be protected by the Constitution. That is simply not true. There are many laws in effect today that prohibit theft, the destruction of federal property, or disturbing the peace. These can and should be used to address the majority of flag burning incidents. Honoring the flag demands that we listen, as many on both sides of this debate have, to the true American war heroes who have testified to us on this issue. It was particularly inspiring to welcome John Glenn back to the Senate last year. The perspectives of the witnesses before the Judiciary Committee last year were of particular interest to me because they represented the diversity of views on this amendment by the American people, by veterans, and by war heroes. Those who fought and sacrificed for our country and its flag deserve our utmost respect when it comes to this flag amendment. They know well the costs of freedom and democracy, as well as the joys. Some would portray the views of veterans as monolithic, but, as our hearings showed quite plainly: They are not. Those many veterans who oppose this amendment do so with conviction and power and strength. They know that no one can question their patriotism or love of country. Listen to the words of Professor Gary May of the University of Southern Indiana, who lost both his legs in the Vietnam war, and who testified before the Judiciary Committee last year. Professor May said: Freedom is what makes the United States of America strong and great, and freedom, including the right to dissent, is what has kept our democracy going for more than 200 years. And it is freedom that will continue to keep it strong for my children and the children of all the people like my father, late father in law, grandfather, brother, me, and others like us who served honorably and proudly for freedom. The pride and honor we feel is not in the flag per se. It's in the principles that it stands for and the people who have defended them. My pride and admiration is in our country, its people and its fundamental principles. I am grateful for the many heroes of our country--and especially those in my family. All the sacrifices of those who went before me would be for naught, if an amendment were added to the Constitution that cut back on our first amendment rights for the first time in the history of our great Nation. The late Senator John Chafee, who as all will recall also served bravely at Guadalcanal and in the Korean war, last year said simply: ``[W]e cannot mandate respect and pride in the flag. In fact, . . . taking steps to require citizens to respect the flag, sullies its significance and symbolism.'' Senator Chafee's words still bring a brisk, cool wind of caution. What kind of symbol of freedom and liberty will our flag be if it has to be protected from protesters by a constitutional amendment? My friend and constituent Keith Kruel, a World War II veteran and past National Commander of the American Legion, addressed this point quite well in testimony he submitted for the Judiciary Committee last year. He said: Freely displayed, our flag can be protected only by us, the people. Each citizen can gaze upon it, and it can mean what our heartfelt patriotic beliefs tell us individually. Government ``protection'' of a Nation's banner only invites scorn upon it. A patriot cannot be created by legislation. Patriotism must be nurtured in the family and educational process. It must come from the heartfelt emotion of true beliefs, credos and tenets. Senator Bob Kerrey, who is in the Chamber at this time, the only Congressional Medal of Honor winner to serve in the Senate in this century, spoke directly to the point when he said: ``Real patriotism cannot be coerced. It must be a voluntary, unselfish, brave act to sacrifice for others.'' I yield the floor.

Mr. FEINGOLD. My intent is simply to speak.

Mr. FEINGOLD

Mr. FEINGOLD. I certainly thank the Senator from Utah. Mr. President, I rise today to oppose the proposed constitutional amendment offered by the junior Senator from South Carolina, Senator Hollings. First I would like to say a few words about the Senator from South Carolina. Our colleague Senator Hollings has been calling for meaningful campaign finance reform for perhaps longer than any other Member of the U.S. Senate. I disagree with this particular approach. But I certainly do not question his sincerity or commitment to reform. Back in 1993, my first year in the Senate, Senator Hollings offered a sense-of-the-Senate amendment to take up a constitutional amendment very similar to the one that is before us today. I remember we had a very short period of time before that vote came up, and I decided to vote with the Senator from South Carolina on that day. I did so because I believed that other than balancing the Federal budget, there was perhaps no more fundamental issue facing our country than the need to reform our election laws. Such a serious topic I believed at the time merited at least a consideration of a constitutional amendment. And I will certainly confess to a certain level of frustration at that time with the fact that the Senate and other body had not yet acted to pass meaningful campaign finance reform in that Congress. To be candid, I immediately realized, even as I was walking back to my office from this Chamber, that I had made a mistake. I started rethinking right away whether I really wanted the U.S. Senate to consider amending the first amendment, even to address the extremely important subject of campaign finance reform. Then, 18 months later, my perspective on this question began to change even more as I was presented with two new development here in the Senate. First I was given the privilege of serving on the Senate Judiciary Committee, and, second, I learned that the 104th Congress, newly under the control of what remains the majority party, was to become the engine for a trainload of proposed amendments to the U.S. Constitution. As a member of the Judiciary Committee, I had a very good seat to witness first hand the surgery that some wanted to perform on the basic governing document of our country, the Constitution. It started with a proposal right away for a balanced budget constitutional amendment. Soon we were considering a term limits constitutional amendment, and then a flag desecration constitutional amendment, then a school prayer amendment, then a super majority tax increase amendment, and then a victims rights amendment. In all over 100 constitutional amendments were introduced in the 104th Congress. A similar number were introduced in the last Congress as well. And in this Congress already we have seen over 60 constitutional amendments introduced. As I saw legislator after legislator suggest that every sort of social, economic, and political problem we have in this country could be solved merely with enactment of a constitutional amendment, I chose to oppose strongly not only this constitutional amendment but others that also sought to undermine our most treasured founding principle. I firmly believe we must curb this reflexive practice of attempting to cure each and every political and social ill of our Nation by tampering with the U.S. Constitution. The Constitution of this country was not a rough draft. We must stop treating it as such. We must also understand that even if we were to adopt this constitutional amendment, and the states were to ratify it, which we all know is not going to happen, it will not take us one single, solitary step closer to campaign finance reform. It is not a silver bullet. This constitutional amendment empowers the Congress to set mandatory spending limits on congressional candidates. Those are the kind of mandatory limits that were struck down in the landmark Buckley v. Valeo decision. Here is the question I pose for supporters of this amendment: If this constitutional amendment were to pass the Congress and be ratified by the States, would campaign finance reformers have the necessary 51 votes--or more likely the necessary 60 votes--to pass legislation that includes mandatory spending limits? I don't think so. We do not even have 60 votes to pass a ban on soft money at this point. And we probably don't even have a bare majority of the Senate who support spending limits, much less mandatory spending limits. I have been working for many years with the senior Senator from Arizona, Senator McCain, on a bipartisan campaign finance proposal. While our proposal has changed over the years, we have consistently been guided by a desire to work within the guidelines established by the Supreme Court. Although our opponents disagree, we are confident that the McCain-Feingold bill is constitutional and will be upheld by the courts. I am mystified by the comments of the Senator from South Carolina who stated pointblank: Everyone knows the McCain-Feingold bill is unconstitutional. In fact, the recent Missouri Shrink case said by a 6- 3 margin such limitations on contributions are constitutional. It was a supermajority of the Supreme Court. It is not credible, I believe, for anyone to argue at this point that a ban on soft money is unconstitutional. Our original proposal, unlike the law that was considered in Buckley v. Valeo, included voluntary spending limits. We offered incentives in the form of free and discounted television time to encourage but not require candidates to limit their campaign spending. That kind of reform is patterned on the Presidential public funding system that was specifically upheld in Buckley. Later versions of our bill have focused on abolishing soft money, the unlimited contributions from corporations, unions, and wealthy individuals to political parties. Very few constitutional scholars, other than a current nominee to the FEC, Brad Smith, believe that the Constitution prevents us from banning soft money. As I indicated, the Missouri Shrink case makes that clear. The key point is this: We don't need to amend the Constitution to do what needs to be done. Of course, when we bring a campaign finance bill to the floor we are met with strong resistance. In fact, so far we have been stopped by a filibuster. The notion that this constitutional amendment will somehow magically pave the way for legislation that includes mandatory spending limits simply ignores the reality of the opposition that campaign finance reformers face in the Senate, and I think we face in the Senate even after a ratification of the Hollings amendment. This amendment, if ratified, would remove the obstacle of the Supreme Court from mandatory spending limit legislation, but it will not remove the obstacle of those Senators such as the Senator from Kentucky, who believe we need more money, not less, in our political system. Most disconcerting to me is what this proposed constitutional amendment would mean to the first amendment. I find nothing more sacred and treasured in our Nation's history than the first amendment. It is perhaps the one tenet of our Constitution that sets our country apart from every type of government formed and tested by mankind throughout history. No other country has a provision quite like our first amendment. The first amendment is the bedrock of the Bill of Rights. It has as its underpinning the notion that every citizen has a fundamental right to disagree with his or her government. It says that a newspaper has an unfettered right to publish expressions of political or moral thought. It says that the Government may not establish a State-based religion that would infringe on the rights of those individuals who seek to be freed from such a religious environment. I have stood on the floor of the Senate to oppose the proposed constitutional amendment that would allow Congress to prohibit the desecration of the U.S. flag, and I do so again this week. I do so because that amendment, for the first time in our history, would take a chisel to the first amendment. It would say that individuals have a constitutional right to express themselves--unless they are expressing themselves by burning a flag. Just as I deplore as much as anyone in this body any individual who would take a match to the flag of the United States, I am firmly convinced that unrestrained spending on congressional campaigns has eroded the confidence of the American people in their government and their leaders. I believe we should speak out against those who desecrate the flag. I believe we should take immediate steps to fundamentally overhaul our system of financing campaigns. But I do not believe, as the supporters of this constitutional amendment and other amendments believe, that we need to amend the U.S. Constitution to accomplish our goals. Nothing in this constitutional amendment before the Senate today would prevent what we witnessed in the last election. Allegations of illegality and improprieties, accusations of abuse, and the selling of access to high-ranking Government officials would continue no matter what the outcome of the vote on this constitutional amendment. Only the enactment of legislation that bans soft money contributions will make a meaningful difference. I see Members of the Senate as having three choices. First, they can vote for constitutional amendments and one-sided reform proposals that basically have predetermined fates of never becoming law. That allows you to say you voted for something and put the matter aside. Second, they can stand with the Senator from Kentucky and others who tell us ``all is well'' with our campaign finance system and we should not be disturbed that so much money is pouring into the campaign coffers of candidates and parties. A third option is that Senators can join with the Senator from Arizona and myself and others who have tried to approach this problem from a bipartisan perspective and have tried to craft a reform proposal that is fair to all, and constitutional. Without meaningful bipartisan campaign finance reform, the American people will continue to perceive their elected leaders as being for sale. They will continue to distrust and doubt the integrity of their own Government. And they will have good reason for that distrust and doubt. This system of legalized bribery threatens the very foundations of our democracy. Senator McCain and I intend to make sure that the Senate will have another opportunity to address this issue. We have had many debates on campaign finance reform, and we will have many more until we pass it. I understand and share the frustration of those who support reform and are tired of seeing our efforts fail. I want to finish this job too. But the way to address the campaign finance problem is to pass constitutional legislation, not a constitutional amendment. We must redouble our efforts to break the deadlock and give the people real reform this year, not 7 or more years from now. I urge the Members of the Senate to reject this amendment. It is not necessary to tinker with the first amendment in order to accomplish campaign finance reform. I greatly admire the sincerity and commitment of the Senator from South Carolina, but I do not think his amendment will bring us any closer to passing campaign finance reform. I thank the Senator from Utah, again, for his courtesy in allowing me to address this issue. I yield the floor.

Mr. FEINGOLD. Obviously, both sides have the same amount of time. I ask unanimous consent I be allowed to speak for 15 minutes, if necessary adding on to the time. Obviously, if the opponents were to feel the same, I have no opposition.

Mr. FEINGOLD. Mr. President, I ask unanimous consent if I could speak for 15 minutes in opposition.

Mr. FEINGOLD

Mr. FEINGOLD. Yes, I want to say a couple of words. I join in the objection. I make no secret of the fact that I oppose each portion of the bill. It is very unbalanced, and there is far too much money behind the bill. I oppose the minimum wage portion because it involves 3 years rather than 2 years. I am especially concerned about the tax piece because it involves some $70 billion-plus that isn't paid for. The reason I am objecting is because of the way this was put together. It got a high number of the majority by combining these different elements. In effect, the pot was sweetened by adding on the minimum wage and the tax provisions. I think it is inappropriate at this point to sort of bait and switch this. You close up the bill by putting these things together, and when they come back, you can't do anything about it under this procedure; it flies through. All we are asking, as Senators Kennedy and Wellstone have said, is that we have an opportunity to have the motions to instruct, and the minority leader's plan would provide that. That is the reason for my objection. I thank the Chair and the majority leader for the opportunity to comment.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to join a number of our colleagues in marking the 25th annual observance of International Women's Day. Today, March 8, 2000, is a day on which people around the world will celebrate the myriad contributions and accomplishments of women. Women in the United States and around the world have made tremendous progress toward full equality since this observance was initiated by the United Nations in 1975, the International Year of the Woman. Sadly, that progress has been tempered by the continued prevalence-- and in some places the troubling acceptance and even encouragement--of gender-based discrimination, harassment, and violence. No one disputes that women in the United States have come a long way in the quarter century since the first International Women's Day was observed. Women are making significant contributions at every level of our society and in every level of government, from local school boards to the President's Cabinet. But we must do more. Quality, affordable child care must be more accessible. Women should not have to choose between taking care of their children and the job that they need to provide the basic necessities of food, clothing, and shelter for their families. The glass ceiling, while perhaps a bit cracked, still blocks the progress of many women who work outside the home. And women who work outside of the home deserve equal pay for equal work. We must do all we can to close the wage gap between women and their male counterparts. In the United States, March is National Women's History Month. This month we celebrate the contributions of women such as Carrie Chapman Catt, a native of Ripon, Wisconsin, who served as the last president of the National American Women Suffrage Association, and was the founder and first president of the National League of Women Voters. Her influence on the direction and success of the suffrage movement is legendary, and her legacy in grassroots organizing is equally significant. She led a tireless lobbying campaign in Congress, sent letters and telegrams, and eventually met directly with the President-- using all the tools of direct action with which political organizers are now so familiar today. Catt's crusade for suffrage saw a home front victory on June 10, 1919, when Wisconsin became the first state to deliver ratification of the constitutional amendment granting women the right to vote before it was adopted as the Nineteenth Amendment in August of 1920. Carrie Chapman Catt's legacy is alive and well today as women around the globe become more active in their communities and in the political process. As Ranking Member of the Subcommittee on African Affairs of the Committee on Foreign Relations, I had the opportunity late last year to travel to ten African nations. During my trip, I saw first-hand the important role that women play in every aspect of society in sub- Saharan Africa. In Rwanda, I was struck by the generosity and far-sightedness of a woman I met just outside the capital city of Kigali. She had donated land to refugees from different ethnic backgrounds and was helping them to build a new, integrated community on that property. It is this kind of selfless act that will help to build the bridges that are necessary to heal the wounds left by the ethnic violence in that country. While in Uganda, I had the opportunity to meet with female legislators and the Minister of Ethics and Integrity, who happens to be female. Africa can only benefit from the women who are taking an active role in governing. Women's voices also need to be heard in ongoing peace negotiations around the globe. For example, it is crucial that women be included in the inter-Congolese dialogue, and that they be allowed to participate fully in Rwanda's justice system. On a more somber note, the HIV/AIDS epidemic has ravaged the countries of sub-Saharan Africa. This disease affects women at a significantly higher rate than men. We need to be vigilant in preventing mother-to-child transmission and in promoting programs at home and abroad that educate women about reproductive choices and the prevention of sexually transmitted diseases, including HIV. I would also like to take this opportunity, as we honor all women and girls worldwide, to again call for prompt hearings in the Senate Committee on Foreign Relations, of which I am a member, on the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). CEDAW marked its 20th anniversary last year and still has not been ratified by one of its chief architects--the United States. The Senate should fulfill its constitutional responsibility to offer its advice and consent on this treaty. Mr. President, as the father of two daughters, I believe we must do all we can to improve the status of women in the United States and around the world. Respect for basic human rights--regardless of gender, race, ethnicity, religion, national origin, or sexual orientation--is a fundamental value that we must pass on to our children and grandchildren. Thank you, Mr. President. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise to speak today in strong support of the nomination of Richard Paez to be a judge on the Court of Appeals for the 9th Circuit. By finally moving on the nominations of Judge Paez and Ms. Marsha Berzon this week, the Senate will take long-delayed steps towards returning the 9th Circuit dockets to a manageable level. Action on these nominees is long overdue. I believe their nominations should be confirmed, and I hope, after all this delay, there will be strong bipartisan votes in favor of them. Four years, 1 month, and 11 days. Just over forty-nine months. One thousand, four hundred and ninety-nine days. That's right. 1499 days, two short of 1500. That is how long Judge Richard Paez has been waiting for the Senate to act on his nomination. In the same amount of time, a young adult could enter and complete a full college degree program. Let me repeat that. Judge Paez has waited for the Senate to grant him the simple grace of voting his nomination up or down for longer than it takes a young American to complete an entire college education. A President or Governor could be inaugurated, serve his or her entire term and be re-inaugurated during that same four year time period. While I'm sure Judge Paez is a patient man, possessed of the proper judicial temperament that makes him an excellent candidate to sit on the 9th Circuit, I know that even his patience must have long-ago worn thin waiting for the Senate to act on his nomination. First nominated to fill a 9th Circuit vacancy on January 26, 1996, Judge Paez has been subject to delay after delay after delay, and yet his opponents have not been able to give a convincing reason why we shouldn't confirm his nomination. Even with his 13 year record as a LA Municipal Court Judge and nearly 6 years as a U.S. District Court Judge for the Central District of California, those who don't want him on the bench can't build a case against his elevation to the 9th Circuit. They charge that he is an ``activist judge,'' but the record simply doesn't support this allegation. Judge Paez now bears the dubious distinction of suffering through the longest pendency of a nomination to the federal bench in the history of the United States. All Judge Paez, has ever asked for was this opportunity: an up or down vote on his confirmation. Yet for years, the Senate has denied him that simple courtesy. I find it ironic that Judge Paez, the same judge who diligently worked to reduce the length of delays in resolving civil matters in Los Angeles and throughout California's court system through his design and implementation of a civil trial delay reduction project, should himself be subjected to such egregious delay in getting his ``day in court'' before the full Senate. Particularly when the Senate confirmed his nomination for a District Court judgeship in July 1994 by unanimous consent. Now I recognize that control of this body has changed since 1994, but his nomination to the District Court was confirmed without objection. And his record on that court has been exemplary. This delay has not simply been unfair to Judge Paez and his family. It has affected the administration of justice. Listen to the concerns of Procter Hug, Jr., Chief Judge of the 9th Circuit. Chief Judge Hug has responsibility for overseeing the functioning and managing the caseloads of the entire Circuit. Currently, of the 28 spots on the 9th Circuit, 6 stand vacant. Chief Judge Hug explained in a letter this past week to the Judiciary Committee that during his term as Chief Judge, the Senate has left him with up to 10 vacancies on the court at any one time. He has responded to this judicial emergency by begging his colleagues to redouble efforts to resolve cases and then increased their dockets to prevent even longer delays in resolution of cases. Hug argues forcefully for the confirmation of Judge Paez and Ms. Berzon and asks this body to swiftly fill the other 4 vacancies on the court. Now Mr. President, let me address the argument made by the Majority Leader and others that the pending 9th Circuit nominations should be rejected because that circuit has a supposedly high level of reversals when its decisions are reviewed by the Supreme Court. This argument simply doesn't hold water. First, if we assume that this argument is not meant to be critical of the views or qualifications Judge Paez or any other nominee personally, it makes no sense at all. Even if we disagree with the direction of that court, why would we deny the 9th Circuit adequate resources, thereby depriving the litigants in that circuit of efficient administration of justice? It just makes no sense. More importantly, arguing that the Ninth Circuit is out of step with the Supreme Court and needs to be reined in doesn't get opponents over the hurdle that they have not yet been able to satisfy--to show that Judge Paez is unsuitable for the appellate bench. He is obviously not responsible for past decisions of the 9th Circuit. So the argument has to be that his elevation will continue the Circuit on its supposedly misguided course. The evidence of Judge Paez being unable to follow Supreme Court precedent is thin indeed, if not non-existent. But more fundamentally, it is simply not factually correct that the 9th Circuit is out of step with the Supreme Court and other circuit courts. Chief Judge Hug in his letter convincingly refutes the argument that his circuit is reversed more often than others. In fact, its clear from the numbers that even in 1996-1997, when the 9th Circuit's reversal rate was at its highest level of recent years, it was reversed less frequently than 5 other circuits--the 5th, 2nd, 7th, D.C. and Federal--each of which were reversed 100% of the time that year by the Supreme Court. In more recent years, the statistics show even more clearly that the 9th Circuit is not a runaway train that somehow needs to be slowed down, but many in the Senate would like it to become a more conservative circuit, perhaps to be broken into two conservative circuits. And they are willing to hold up Judge Paez and others to achieve that political objective. Furthermore, I have to point out that reversal rates are a very poor criteria for judging a court's work. The Supreme Court is not required to review every appellate decision. It picks which cases to review. So it is hardly surprising that when it does take a case, it reverses a lower court. Chief Judge Hug quite rightly points out that the 9th Circuit decides about 4,500 cases on the merits each year. 4,500. So the fact that 10 or 20 cases per year are reversed really should not trouble us. It is just not a plausible argument against a nominee for this Circuit that its decisions are out of the mainstream. We ought to congratulate the women and men currently serving on the 9th Circuit for so successfully fulfilling their judicial roles at the same time vacancies are greatly increasing their dockets and stretching their time thin. The pressure to carefully make the proper judicial decisions is great, and these Judges are responding with professionalism. I thank them for that, but I cannot help but think that we are putting an unconscionable burden on them. So what is the point of raising meritless arguments against this nominee? Why the long delay? Let me suggest two possibilities, neither of which reflect well on the Senate. First, Senators delaying these nominations may be trying to run out the clock until President Clinton leaves office. Confirmations always slow down in a presidential election year. In 10 months, we will have a new President. Perhaps a different President will put forward a different nominee. But Judge Paez was actually nominated a year before the President's 2nd inaugural. So holding up this particular nomination for purely political reasons is most unfair. In some ways, this nomination should get special treatment. We had an intervening election after the nomination was first made, and President Clinton won. It is indefensible to hold a nomination hostage for his entire second term. It defies the clear constitutional prerogatives of the duly elected President to choose nominees to the bench and the duty of the Senate to say yes or no. Some Senators may also object to moving the nomination of Judge Paez because of a perceived judicial philosophy. Some opponents of his nomination look to his long and distinguished service in legal aid and attempt to tar him with the epithet of ``liberal,'' forgetting that his exemplary judicial career has been filled with distinction at all levels. A close look at his record as a U.S. District Court judge since the Senate confirmed his nomination in 1994 debunks attempts to label his opinions as conservative or liberal, reactionary or progressive. The Los Angeles Daily Journal, which is a newspaper devoted to covering the courts and the legal profession in Los Angeles commissioned 15 legal experts to examine Judge Paez's decisions in seven different cases. Each case was reviewed by at least 2 experts. The results were clear. Thirteen of the legal scholars and practitioners found Paez's opinions ``well-reasoned and well-written.'' Two others were mildly critical. And, in the one decision in which the experts were critical of Judge Paez's decision not to dismiss claims that Unocal Corporation was liable for human rights abuses in Burma, a third expert countered the criticism of Judge Paez's decision, saying ``I would give Judge Paez very good marks on his ruling.'' What's the point here? In a variety of decisions, the commentators praised the work of Judge Paez. Here are some of their comments: I carefully read Judge Paez's opinion and found that it was excellent in every respect. His writing was clear and his expression was good. He did not show any ideological or personal bias. Judge Paez's injunction--in a case against anti-abortion demonstrators--was entirely consistent with the reasoning and result in conservative jurisdictions. The result is that claims that the Judge's record is activist, or liberally slanted are simply wrong. Claims that he is anti-business are simply not borne out by the facts. Paez also ruled in favor of Philip Morris on a second-hand smoke suit and for Isuzu against Consumers Union. Senators opposing this nominee because they claim he's anti- business are missing the point. Paez rules on each case on the merits-- yes, on the merits--and shows no favoritism for or against business. So again, Mr. President, I'm just baffled by these claims of activism or anti-business philosophy being leveled against Richard Paez. Now if his record as a judge doesn't support these charges of ``judicial activism'' where did Judge Paez's opponents get the idea that he must be stopped. Opponents aren't saying it openly but it could be that they are worried that a judge who formerly worked in a legal aid capacity must be a liberal, and incapable of making balanced decisions. Having failed to find any hint of bias or lack of judicial temperament in 20 years of judicial decisions, what other reason for opposition could there be other than a belief that if you are an attorney who agrees to work on behalf of those unable to access the legal system because they are poor or under-educated, as Judge Paez did for nine years early in his career, you must be a liberal, right? Wrong. Dead wrong. The organized Bar in every single state requires public service of attorneys. Every major law firm has dedicated efforts to reach under-served populations needing legal advice. That's part of the profession, a noble part of the profession, and those who would complain about Judge Paez's service to those in need would do well to remember their own reasons for choosing to serve the public. For my part, I applaud the decision of Judge Paez and others like him to serve the poor, and I cannot imagine how his unique perspective from working one on one with these populations for nine years would not be desirable and an advantage to parties before the 9th Circuit. His perspective is badly needed in a circuit which serves 20% of the nation's population, many of whom are people who needed legal aid when he was working with them during the 70s. If opponents of Judge Paez want to fill the court only with seemingly conservative judges, they mistake their role in the constitutional scheme in my opinion. Let's not kid ourselves. Partisan politics shouldn't play a part in the confirmation of judges, but they do. But to hold up a well-qualified judge for a President's entire term on the basis of unsupported allegations of ``judicial activism'' is shameful, it takes the impact of politics on this process to an extreme that we have not seen before, and I hope we never see again. Mr. President, regardless of the reason for delays in acting on Judge Paez's nomination, the effects of delay are damaging and unmistakable. I believe they are twofold. First, as I discussed before, justice is put on hold in the 9th Circuit because of crowded dockets. Second, this Senate sends a subtle, but unmistakable signal to Hispanic Americans, or recent immigrants about opportunities in America. It's an old adage but a true one. Justice delayed is justice denied. Parties take their disputes to court to reach a resolution. Longer dockets mean delays for families and businesses seeking to settle legal conflicts and move forward. Holding up qualified nominees like Judge Paez and leaving huge holes to fill on appellate benches literally delays justice. And the subtle, even subconscious message sent to Hispanic Americans when they examine who hears their disputes in a court of law is that Circuit court judgeships are not open to them. Young Hispanic Americans hearing about Judge Paez will unfortunately learn the message without it ever being said out loud that there are limitations to their advancement in careers of public service. The signals sent by Senators' failure to vote for Paez's confirmation lead to diminished expectations and a view of limited, not limitless opportunities for millions of Hispanic Americans. The Washington Post reported on Monday that only 9 Hispanic American judges currently sit on appellate courts in this country out of a total of 170 appellate judges. And only 31 out of 655 District Judges, including Judge Paez, are Hispanic Americans. That's a shameful record as we begin the 21st century. Here's the message sent if Judge Paez is not confirmed. You can go to law school at UC Berkeley's Boalt Hall School of Law, work tirelessly with under-served and under-represented populations needing legal assistance, be a successful and well-respected judge on the local bench and the federal District Court, get the highest rating from the American Bar Association, receive endorsements from law enforcement organizations, bar leaders, business leaders, and community leaders, and yet be needlessly and unfairly delayed and prevented from being elevated to the prestigious 9th Circuit Court of Appeals based on unsubstantiated and vague concerns that you are a ``judicial activist'' or a ``liberal.'' There is only one nominee in this position, whose nomination has been held up for over 4 years. That is Richard Paez, who is a Hispanic American. That's the wrong message from this Senate to millions of Americans, and we should not send it. I strongly support Judge Paez's confirmation, and urge my colleagues to join me in quickly filling this and other vacancies on the 9th Circuit. This long delayed confirmation vote for Richard Paez is an important test for the Senate. I hope we pass it. I yield the floor.

Mr. FEINGOLD. Mr. President, I am pleased that the Senate is finally going to act on the nomination of Marsha Berzon to be a judge on the Ninth Circuit Court of Appeals. The history of her nomination is one of the most disappointing episodes in the Senate's recent shameful treatment of judicial nominees. One of America's most qualified appellate litigators has been held hostage by opponents who raise complaints without substance or merit to impede her confirmation. Today I hope to dispel some of the myths that opponents of her confirmation have used to block Marsha Berzon's nomination. I urge the Senate to confirm her, and put a highly qualified lawyer on the bench where she belongs. What kind of nominee do we have before us today in the person of Marsha Berzon? We have a woman who has distinguished herself at all levels, from clerkship through successful private appellate practice. We have a woman who has already argued before the Supreme Court four times and has repeatedly appeared before Circuit courts around the country. Thirty years ago Ms. Berzon received the honor of being picked as U.S. Supreme Court Justice William Brennan's first female law clerk. Her opponents have seized on this honor as suggesting that Ms. Berzon possesses a liberal and activist judicial philosophy. I say to those who believe serving as a Supreme Court clerk is emblematic of one's political beliefs that they are wrong to believe a clerk adopts her Justice's philosophy for life. First, to be chosen by any Justice of the Supreme Court as a clerk is a rare and noteworthy honor, reserved for the most promising legal minds from the finest law schools. So the most important thing to be gathered from Ms. Berzon's service as a Supreme Court clerk is that her promise as a lawyer and future judge was already apparent thirty years ago just as she was beginning her career. Second, it is demonstrably untrue that you can tell the philosophy of an individual by the belief of his or her former boss. I'm sure we all know examples of people who have worked for us in the Senate who don't share our views on every issue. But perhaps the best example of the unfairness of assuming that Marsha Berzon believes everything that Justice Brennan did is another former Brennan clerk, Judge Richard Posner of the 7th Circuit Court of Appeals. Many consider Judge Posner the most creative legal mind of his generation, and no one who is familiar with his law and economics philosophy would call him a liberal. So let's put that fallacious line of argument to rest. Listen to the praise our Judiciary Committee Chairman, my friend Sen. Hatch, heaped upon Marsha Berzon when the Committee considered her nomination before forwarding it to the full Senate. Chairman Hatch called Berzon ``one of the best lawyers I've ever seen.'' He noted in a letter supporting her nomination that her ``competence as a lawyer is beyond question'' and that she has the ``sound temperament that will serve her well as a federal judge.'' At the time Chairman Hatch also noted that Marsha Berzon had attracted ``both Republican and Democratic support.'' I am pleased that the Chairman continues to support her nomination on the floor. Opponents of Marsha Berzon have questioned her credentials unfairly. Despite graduating with honors from Harvard/Radcliffe college and teaching law school courses at both Cornell and Indiana University Law schools, her scholarship has been attacked. Some who have opposed Berzon's nomination have even called her a labor zealot. But Mr. President, there are a number of people in this room who were attorneys before joining the Senate. They know, as do I, that the code of professional responsibility requires zealous advocacy on a client's behalf. So to mention her zeal for her practice is simply to highlight one of those qualities which makes her such a fine candidate for the 9th Circuit. It shows that she has taken her practice of law to the highest and most professional level. And lest her opponents complain about professionalism and infer unfairly that a former labor lawyer cannot be fair to management, listen to what numerous management-side attorneys who have litigated against her say about Marsha Berzon. Let's take the case of W.I. Usery, Jr., a former Republican Secretary of Labor: Usery said Ms. Berzon ``has all the qualifications needed, as well as the honesty and integrity that we need and deserve in our court system today. . . I know she will be dedicated to the principles of fairness and impartiality in all her judicial activities.'' Or perhaps, we should listen to Fred Alvarez, President Ronald Reagan's former EEOC Commissioner and Assistant Secretary of Labor. Alvarez says: Someone with the intellect and integrity, which Ms. Berzon has demonstrated, understands the difference between advocacy and the solemn responsibilities undertaken as a federal appellate court judge . . . I can think of no other union- side lawyer who would command so strong and so compelling a consensus from management lawyers on her suitability for such an important position on the 9th Circuit Court of Appeals. So there you have it Mr. President. Top Republican officials--who we can be sure favor management positions by personal philosophy--endorse Berzon and her professionalism without reservation. So let's put the foolish argument that Marsha Berzon can't be fair concerning labor issues to rest. Let's review. We've shown that arguments that Berzon is some liberal by her association with Justice Brennan are fallacious. We've shown that arguments that she is a zealous advocate and should be rejected as an ideologue in fact highlight her mastery of the practice of law and make her highly qualified for this position. We've exploded the myth that she is anti-management and incapable of impartiality in hearing cases pitting management versus labor, and found that she works towards reaching consensus. So one has to wonder Mr. President, what is really going on here? I'm concerned about the appearance that Marsha Berzon has had such a long, hard road to confirmation because she is a woman. And I don't blame the public for taking that message from this delay when a highly qualified appellate attorney is held up for years and the arguments against her confirmation are so thin. At the end of 1999, the entire federal judiciary included only 158 women--that's a scant and embarrassing 20% of sitting judges. Rather than attempting to address that disparity, this Senate has chosen to continue the policies of limiting the upward elevation of talented and capable women attorneys and judges. We've repeatedly delayed action on a host of female candidates. What's the impact? If fewer women get confirmed, there are fewer lower court judges to elevate to the nation's appellate courts. And if the judiciary remains a male bastion, as far as we've come in this country in recognizing equal rights for women, we risk creating the perception that gender biases will continue to plague our judicial system well into the 21st century. I believe Ms. Berzon is highly qualified to sit on the 9th Circuit, and her confirmation should wait no longer. I enthusiastically support her and I urge my colleagues to do the same. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today in support of the Administration's decision to send urgently needed assistance to southern Africa, where heavy rains have caused devastating floods, particularly in the Republic of Mozambique. Last night President Clinton approved the deployment of a Joint Task Force to the region, including C-130 aircraft to deliver desperately needed supplies, and six heavy lift helicopters to pluck survivors from the trees and rooftops where they cling to life. This assistance will supplement the efforts already underway, under the auspices of the U.S. Agency for International Development and the U.S. Department of Defense. Mr. President, this assistance comes not a moment too soon. Meteorologists believe that even more rain is likely to fall on the region in the very near future. The resources the world has already provided are stretched nearly to the breaking point, as the need to deliver food and other supplies to survivors competes with the need to rescue those precariously hanging on above the floodwaters, waiting to be evacuated to dry land. The Mozambican families who survived the threat of rising waters are now at risk again, as water-born diseases like cholera, malaria, and meningitis surge in the flood's aftermath. These floods are particularly tragic because the country most seriously affected by them, Mozambique, has made significant strides toward recovery from its long and brutal civil war. Though the country is still affected by extreme poverty, in recent years Mozambique has enjoyed exceptional rates of economic growth, and while more needs to be done, the country has improved its record with regard to basic human rights. Mr. President, the people of Mozambique have been fighting for a better future. This kind of disaster comes at a terrible time, but our intercession may help the people of Mozambique to hold to the opportunities that lay before them before the waters rose. The American government and the American people have reached out beyond our borders time and again to aid communities in crisis--from the earthquake victims in Turkey and Taiwan to the mudslide survivors in Venezuela. We stand united in a basic expression of human compassion again today. I applaud the Administration's action; I believe it is an entirely appropriate use of our country's resources, and I wish the people of southern Africa the very best as they work to recover from these devastating floods.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise in strong support of the amendment of Senator Bingaman and Senator Kennedy to raise the maximum individual Pell grant to $3,700, an increase of $400. Higher education is one of the most vital keys to open the door to success in this country. Without a college degree, or significant postsecondary education, it is a lot harder to find a successful path through today's labor market. Without Pell grants, many individuals simply can't consider college. Without a college degree or serious postsecondary training, some employers won't consider hiring these individuals. In general, workers with a bachelor's degree are much better off financially compared to less-educated workers. In 1998, the average male college graduate earned about 92 percent more than the average high school graduate. While I commend the supporters of this legislation for their desire to promote increased access to an affordable higher education, I think their approach is seriously flawed. Specifically, I take exception with those who believe that the education IRA component of this legislation is the best way to help increase accessibility to affordable education. Instead of helping those truly in need, as Senator Bingaman has said, this provision would disproportionately help the most affluent families and provide little or no assistance to low- and middle-income families. A Treasury analysis concluded that 70 percent of the tax benefits from this provision would go to the top 20 percent of all taxpayers. Now, in sharp contrast to these targeted tax breaks, Pell grants provide essential financial assistance to those who are truly in need. Unfortunately, the individual Pell grant award has not kept pace with the rising cost of a postsecondary education. In fact, I have been told that the maximum Pell grant has declined in constant dollars by 14 percent over the last 20 years. This decline is even more significant when we look at the rising cost of a college education. Over the past 10 years, tuition alone has increased by 41 percent at 4-year private colleges, and 53 percent at 4-year public colleges and universities. What is even more troubling about the trends of increasing tuition and decreasing grant value is how students, especially low-income students, make up the difference between aid and tuition. Because of a decreasing real value of assistance, such as the Pell grant, more and more students are relying on debt to finance their college education. Last year alone, the number of students who took out non-Federal loans increased by 25 percent. These loans inevitably are, in large part, the reason students are leaving college with more and more debt every year. One of the other concerning trends is the emergence of a widening educational gap between the rich and poor. Statistic after statistic illustrates that students from low-income families are pursuing a postsecondary education at a much lower rate than individuals from upper- and middle-income families. By supporting an increase for the Pell Grant Program, Congress has a chance to address this growing disparity. After all, Congress created need-based student financial aid programs to ensure that individuals from low-income families are not denied postsecondary education because they cannot afford it. The Pell Grant Program is vital to paving the way to an affordable higher education. I look forward to working with my colleagues to support a real increase in the individual Pell grant award. I thank my friend from New Mexico for his leadership on this issue. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I rise to mark International Abolition Day. This day marks the occasion in 1847 when the state of Michigan became the first English-speaking territory in the world to abolish capital punishment. As one of the first acts following conferral of statehood on Michigan, the Michigan legislature abolished the death penalty for all crimes except treason. I note, with tongue and cheek and with all due respect to my distinguished colleagues from Michigan, that the date marking International Abolition Day probably should be 1853, when my great state, the state of Wisconsin, became the first state to abolish the death penalty for all crimes. Wisconsin has been death penalty-free for nearly 150 years. It is clear that the people of the Midwestern states have shown great courage and leadership on this issue since almost the birth of our great Nation. Mr. President, International Abolition Day is a day to remember the victims and survivors of violent crimes perpetrated by individual criminals. But it is also a day to remember those killed by state- sponsored executions. And it is a day for education and discussion of alternatives to the death penalty. Just as the people of Michigan over 150 years ago learned the painful reality of the fallibility of our criminal justice system and confronted the death penalty's main use, as a tool of vengeance, people throughout the United States today are beginning to question their longstanding support for the death penalty. On January 31, Governor Ryan effectively imposed a moratorium on executions in Illinois until a state panel can examine the administration of the death penalty and why so many innocents have sat on Illinois' death row. In a recent Gallup poll, even though a majority of Americans still support the death penalty, support for the death penalty is at a 19-year low. And when asked whether Americans prefer the death penalty or life imprisonment without the possibility of parole, support for the death penalty drops even further. These are just some of the many positive developments that have nurtured the reawakening of the American conscience to the great responsibility and stain that state-sponsored executions place on our society. I look forward to the day when our federal government and the 38 states with the death penalty will recognize the adequacy of sentencing alternatives and abolish this barbaric punishment for all time.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I introduce the Consumer Credit Fair Dispute Resolution Act of 2000, a bill that will protect and preserve American consumers' right to take their disputes with creditors to court. This bill is identical to an amendment that I offered recently to the bankruptcy reform bill. In recent years, 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 criminal cases is contained in the Sixth Amendment to the Constitution. The right to a jury trial in civil cases is contained in the Seventh Amendment, which provides ``In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. . . .'' 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 have been developed, short of going to court. 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. Mediation is conducted by a neutral third party--the mediator--who meets with the opposing parties to help them find a mutually satisfactory solution. Unlike a judge in a courtroom, the mediator has no power to impose a solution. No formal rules of evidence or procedure control mediation; the mediator and the parties mutually agree on the best way to proceed. Arbitration also involves a third party--an arbitrator or arbitration panel. Unlike mediation but similar to a court proceeding, 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 if there is reason to believe that the arbitrator committed actual fraud. In contrast, if a dispute is resolved by a court, the parties can potentially pursue an appeal of the lower court's decision. Mr. President, because mandatory, binding arbitration is so conclusive, it can be 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. In fact, I am the original cosponsor with my distinguished colleague from Iowa, Senator Grassley, of S. 1020, which would prohibit the unilateral imposition of mandatory, binding arbitration in motor vehicle dealership agreements with manufacturers. Many of our colleagues have joined us as cosponsors. Similar to the problem in the motor vehicle dealership franchise 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 their customers' monthly statements. Some credit card issuers like American Express have placed fine print 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 issued its mandatory arbitration provision last year. It took effect on June 1st. 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 isn't 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. Mr. President, 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 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--often an initial filing fee plus hourly fees to the arbitrator or arbitrators involved in the case. These costs can be much higher than bringing the matter to small claims court and paying a court filing fee. For example, the National Arbitration Forum, the arbitration entity of choice for American Express and First USA charges fees that are likely greater than if the consumer brought a dispute in small claims court. For a claim of less than $1,000, the National Arbitration Forum charges the consumer a $49 filing fee. In contrast, a consumer can bring the same claim to small claims court here in the District of Columbia for a filing fee of no more than $10. In other words, the consumer pays a fee to the National Arbitration Forum that is nearly five times more than the fee for filing a case in small claims court. That's bad enough, but some other arbitration firms are even more expensive. The American Arbitration Association charges a $500 filing fee for claims of less than $10,000, or more if the claim exceeds $10,000, and a minimum filing fee of $2,000 if the case involves three or more arbitrators. In addition to the filing fee, it also charges a hearing fee for holding hearings other than the initial hearing--$150 to be paid by each party for each day of hearings before a single arbitrator, or $250 if the hearing is held before an arbitration panel. The International Chamber of Commerce requires a $2,500 administrative fee plus an arbitrator's fee of at least $2,500, if the claim is less than $50,000. These fees are greater if the claim exceeds $50,000. The fees could very well be greater than the consumer's claim. So, as you can see, 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. 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. There has been one important court decision on the enforceability of mandatory arbitration provisions in credit card agreements. The case arose out of a mandatory arbitration provision announced in mailings to Bank of America 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. The bill follows:

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I introduce the Consumer Credit Fair Dispute Resolution Act of 2000, a bill that will protect and preserve American consumers' right to take their disputes with creditors to court. This bill is identical to an amendment that I offered recently to the bankruptcy reform bill. In recent years, 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 criminal cases is contained in the Sixth Amendment to the Constitution. The right to a jury trial in civil cases is contained in the Seventh Amendment, which provides ``In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. . . .'' 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 have been developed, short of going to court. 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. Mediation is conducted by a neutral third party--the mediator--who meets with the opposing parties to help them find a mutually satisfactory solution. Unlike a judge in a courtroom, the mediator has no power to impose a solution. No formal rules of evidence or procedure control mediation; the mediator and the parties mutually agree on the best way to proceed. Arbitration also involves a third party--an arbitrator or arbitration panel. Unlike mediation but similar to a court proceeding, 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 if there is reason to believe that the arbitrator committed actual fraud. In contrast, if a dispute is resolved by a court, the parties can potentially pursue an appeal of the lower court's decision. Mr. President, because mandatory, binding arbitration is so conclusive, it can be 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. In fact, I am the original cosponsor with my distinguished colleague from Iowa, Senator Grassley, of S. 1020, which would prohibit the unilateral imposition of mandatory, binding arbitration in motor vehicle dealership agreements with manufacturers. Many of our colleagues have joined us as cosponsors. Similar to the problem in the motor vehicle dealership franchise 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 their customers' monthly statements. Some credit card issuers like American Express have placed fine print 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 issued its mandatory arbitration provision last year. It took effect on June 1st. 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 isn't 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. Mr. President, 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 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--often an initial filing fee plus hourly fees to the arbitrator or arbitrators involved in the case. These costs can be much higher than bringing the matter to small claims court and paying a court filing fee. For example, the National Arbitration Forum, the arbitration entity of choice for American Express and First USA charges fees that are likely greater than if the consumer brought a dispute in small claims court. For a claim of less than $1,000, the National Arbitration Forum charges the consumer a $49 filing fee. In contrast, a consumer can bring the same claim to small claims court here in the District of Columbia for a filing fee of no more than $10. In other words, the consumer pays a fee to the National Arbitration Forum that is nearly five times more than the fee for filing a case in small claims court. That's bad enough, but some other arbitration firms are even more expensive. The American Arbitration Association charges a $500 filing fee for claims of less than $10,000, or more if the claim exceeds $10,000, and a minimum filing fee of $2,000 if the case involves three or more arbitrators. In addition to the filing fee, it also charges a hearing fee for holding hearings other than the initial hearing--$150 to be paid by each party for each day of hearings before a single arbitrator, or $250 if the hearing is held before an arbitration panel. The International Chamber of Commerce requires a $2,500 administrative fee plus an arbitrator's fee of at least $2,500, if the claim is less than $50,000. These fees are greater if the claim exceeds $50,000. The fees could very well be greater than the consumer's claim. So, as you can see, 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. 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. There has been one important court decision on the enforceability of mandatory arbitration provisions in credit card agreements. The case arose out of a mandatory arbitration provision announced in mailings to Bank of America 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. The bill follows:

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I want to share my views on the Nuclear Waste Policy Amendments Act of 2000 (S. 1287). Specifically, I want to explain why I will continue to oppose this legislation in its current form. Let me first express my grave concern about the process by which this legislation has been developed over the last few days. My office received a new version of this legislation, which eventually was proposed as a substitute amendment, nearly every day last week. Closed negotiations have continued even while the bill has been on the floor. For those of us who have utilities in our states that are grappling with nuclear waste storage questions, this made it nearly impossible to analyze this bill on behalf of our constituents. The issues presented in this legislation are serious policy issues, and our constituents deserve better information. I am principally opposed to this bill because it does little to address the nuclear waste storage question in my home state of Wisconsin. Wisconsinites want nuclear waste removed from our state and stored in a permanent geologic repository out of state so that it has no chance of coming back to Wisconsin. I opposed nuclear waste legislation in the last Congress which sought to build large scale interim storage facilities before the permanent storage site is ready and would have jeopardized consideration of the permanent site. This year's bill would have provided federal funds for on-site storage of nuclear waste until the permanent storage site at Yucca Mountain was ready to take our waste. The substitute amendment stripped out the on-site storage provisions. This bill now does nothing to address the waste situation at the majority of Wisconsin's nuclear plants. The bill, as amended by the substitute amendment, does contain a specific section which would address the nuclear waste situation at the La Crosse Boiling Water Reactor, which is owned by Dairyland Power and has been shut down for years. The Dairyland language is something that I have supported and will continue to support, but I had hoped this legislation would be able to extend similar relief to other Wisconsin utilities. With the on-site storage provisions stripped out, the bill retains a loosely knit collection of provisions that seem unlikely to have a beneficial impact on the country's nuclear waste program. The bill requires the Nuclear Regulatory Commission's and the National Academy of Sciences' concurrence in the radiation exposure standard that the U.S. Environmental Protection Agency is drafting--an entirely new procedure. If those entities do not agree, the responsibility to set the standard comes back to Congress. I am concerned that if those entities cannot agree it is likely that Congress can not do much better to resolve the issues. One of my other concerns has always been the safety and security of shipping nuclear materials from their current locations to a permanent geologic storage site outside of the state. Obviously, there is a risk that, during the transportation, accidents may occur. Although the legislation provides for emergency response training in the jurisdictions through which nuclear material would be transported, I still feel that these provisions need to be strengthened to ensure that state and local governments have the financial and equipment resources they need to respond to accidents. In conclusion, I cannot support legislation which purports to fix the country's nuclear waste program and leaves Wisconsin so far behind. I continue to remain hopeful that legislation in this area can be crafted that can win my support.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, the President sent a nomination to the Senate that anyone who cares about the campaign finance laws in this country will find very troubling. I speak of the nomination of Bradley Smith to a 6-year term on the Federal Election Commission. Mr. Smith's views on the federal election laws, as expressed in law review articles, interviews, op-eds, speeches over the past half decade are disturbing, to say the least. He should not be on the regulatory body charged with enforcing and interpreting those very laws. Today I am placing a very public hold on this nomination. I will object to its consideration on the floor and I ask all of my colleagues who support campaign finance reform to oppose this nomination. In a 1997 opinion piece in the Wall Street Journal, Mr. Smith wrote the following: When a law is in need of continual revision to close a series of ever-changing ``loopholes,'' it is probably the law, and not the people, that is in error. The most sensible reform is a simple one: repeal of the Federal Election Campaign Act. That's right, the man who the President has just nominated to serve on the Federal Election Commission believes the Federal campaign laws should be repealed. Thomas Jefferson said we should have a revolution in this country every 20 years. He believed that laws should constantly be revised and revisited to make sure they were responsive to the needs of society at any given time. Yet, Mr. Smith sees the need for loophole closing in the federal election laws as evidence that the whole system should be scrapped. In a policy paper published by the Cato Institute, for whom Mr. Smith has written extensively in recent years, he says the following: FECA [the Federal Election Campaign Act] and its various state counterparts are profoundly undemocratic and profoundly at odds with the First Amendment. I wonder how Mr. Smith will reconcile those views with his new position as one of six individuals responsible for enforcing and implementing the statute and any future reforms that the Congress might pass. He has shown such extreme disdain in his writings and public statements for the very law he would be charged to enforce that I simply do not think he should be entrusted with this important responsibility. It is especially ironic and disheartening that this nomination has been made at a time when the prospects for reform and the legal landscape for those reforms have never looked better. We are all aware that certain Presidential candidates have highlighted campaign finance issues with great success. The public is more aware than ever of the critical need for reform. Campaign finance reform is and will be a major issue in the 2000 Presidential race. In addition, just a few weeks ago, the Supreme Court issued a ringing reaffirmation of the core holding of the Buckley decision that forms the basis for the reform effort. The Court once again held that Congress has the constitutional power to limit contributions to political campaigns in order to protect the integrity of the political process from corruption or the appearance of corruption. In upholding contribution limits imposed by the Missouri legislature, Justice Souter wrote for the Court: [T]here is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters. In my view, the Supreme Court's ruling in the Shrink Missouri case removes all doubt as to whether the Court would uphold the constitutionality of a ban on soft money, which is the centerpiece of the reform bill that has passed the House and is now awaiting Senate action. One hundred twenty-seven legal scholars have written to us that a soft money ban is constitutional, and their analysis is strongly supported by this very recent decision of the Supreme Court. Mr. Smith has a wholly different view of the core holding of Buckley, on which the arguments supporting the constitutionality of banning soft money relies. He wrote the following in a 1997 law review article: Whatever the particulars of reform proposals, it is increasingly clear that reformers have overstated the government interest in the anticorruption rationale. Money's alleged corrupting influence are far from proven. . . . . [T]hat portion of Buckley that relies on the anticorruption rationale is itself the weakest portion of the Buckley opinion--both in its doctrinal foundations and in its empirical ramifications. In another article, Mr. Smith writes: ``I do think that Buckley is probably wrong in allowing contribution limits.'' Mr. Smith's view, as quoted by the Columbus Dispatch, is that ``people should be allowed to spend whatever they want on politics.'' In an interview on MSNBC, he said, ``I think we should deregulate and just let it go. That's how our politics was run for over 100 years.'' He is right about that. Mr. Smith would have us go back to the late 19th century, before Theodore Roosevelt pushed through the 1907 Tillman Act, which prohibited corporate contributions to federal elections. Mr. Smith has expressed the view that a soft money ban would be unconstitutional. He wrote the following in a paper for the Notre Dame Law School Journal of Legislation: [R]egardless of what one thinks about soft money, or what one thinks about the applicable Supreme Court precedents, a blanket ban on soft money would be, under clear, well- established First Amendment doctrine, constitutionally infirm. A majority of this Senate has voted repeatedly in favor of a soft money ban. I cannot imagine that that same majority will vote to confirm a nominee who believes such a ban is unconstitutional. We need an FEC that will vote to enforce the law and to interpret it in a way that is consistent with congressional intent. I simply have no confidence--I do not know how I can get confidence--that Mr. Smith will be able do that--how can he? It would be completely at odds with his own loudly professed principles. This is not a matter of personality. I have never met Mr. Smith. I am sure he is a good person. I do not question his right to criticize the laws from his outside perch as a law professor and commentator. But his views on the very laws he will be called upon to enforce give rise to grave doubt as to whether he can faithfully execute the duties of a Commissioner on the FEC. It is simply not possible for him to distance himself from views he has repeatedly and stridently expressed now that he is nominated. We would not accept such disclaimers from individuals nominated to head other agencies of Government. The campaign finance laws are not undemocratic. They are not unconstitutional. They are essential to the functioning of our democratic process and to the faith of the people in their government. As the Supreme Court said in the Shrink Missouri case: Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance. Democracy works only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of ``malfeasance and corruption.'' In the wake of that clear declaration by the Court, how can Bradley Smith continue to rationalize the gutting of the Federal Election Campaign Act? And how can we allow him the chance to carry it out as a member of the FEC? We need FEC Commissioners who understand and accept the simple and basic precepts about the influence of money on our political system that the Court reemphasized in the Shrink Missouri case. We need FEC Commissioners who believe in the laws they are sworn to uphold. We do not need FEC Commissioners who have an ideological agenda contrary to the core rationale of the laws they must administer. The public is entitled to FEC Commissioners who they can be confident will not work to gut the efforts of Congress to provide fair and democratic rules to govern our political systems. I will oppose this nomination and I urge my colleagues to do the same. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent my friend, the distinguished Senator from South Carolina, be recognized after I complete my remarks.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, during today's debate on the nuclear waste legislation, I want to take my first opportunity to Call the Bankroll in the new year. As we all know, nuclear waste has been a very contentious issue in past years. I'm not here today to recap the arguments on either side, but instead to offer the public and my colleagues a picture of the money that has been spent by interests on both sides of the issue. Of course the Nuclear Energy Institute is the chief lobbyist on behalf of companies that operate nuclear power plants in the U.S., and has led the fight for the nuclear waste legislation, in its various forms, that is now before us. NEI gave more than $135,000 in soft money to the parties and more than $70,000 in PAC money to candidates in the 1998 election cycle. In addition to NEI, a number of utilities which operate nuclear plants were also significant PAC and soft money donors in the '98 cycle, including: Commonwealth Edison, which gave $110,000 in soft money and more than $106,000 in PAC money, and Florida Power and Light, which gave nearly $300,000 in soft money to the parties and more than $182,000 in PAC money to candidates. Many of these donors didn't waste any time before donating in the current cycle either--NEI already reported donating more than $66,000 in soft money, and Commonwealth Edison already reported $90,000 in soft money donations in 1999. On the other side of this fight is a coalition of environmental groups that has opposed this bill in its various forms, writing to members of the Senate last September to urge us to protect our country and our environment by voting against the Nuclear Waste Policy Amendments Act of 1999. Among these groups is the Sierra Club, which gave more than $236,000 in PAC money to candidates in the '98 cycle, and Friends of the Earth, which gave just under $4,000 during that same period. I also think it's important here to make a larger point that reaches well beyond the nuclear waste debate--that interests can exercise their clout not just through PAC and soft money donations but through yet another loophole in the law--phony issue ads. Now it is very difficult to determine how much money is spent on phony issue ads. They are not reported under current law, and they should be. Nonetheless, some estimates have been made by news organizations and independent analysts. The Sierra Club spent an estimated $1.5 million on issue ads in the '98 election cycle, and the Nuclear Energy Institute reportedly spent $600,000 on issue ads in just two Senate races in the last cycle. Now I can't say that even this is a complete picture of all the interests lobbying on this bill, but it does give my colleagues and the public some idea of what interests are trying to influence the passage--or the defeat--of this bill, and a picture of the huge sums of money they are using to pursue their goals.

Mr. FEINGOLD

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

Mr. FEINGOLD. The first article is Mr. Stout's piece from the Virginian-Pilot entitled, ``The Navy's Super Fighter Is A Super Failure.'' The article reads as follows: I am a fighter pilot. I love fighter aircraft. But even though my service--I am a Marine--doesn't have a dog in the fight, it is difficult to watch the grotesquerie that is the procurement of the Navy's new strike-fighter, the F/A-18 E/F Super Hornet. Billed as the Navy's strike-fighter of the future, the F/A- 18 E/F is instead an expensive failure--a travesty of subterfuge and poor leadership. Intended to overcome any potential adversaries during the next 20 years, the aircraft is instead outperformed by a number of already operational aircraft--including the fighter it is scheduled to replace, the original F/A-18 Hornet. The Super Hornet concept was spawned in 1992, in part, as a replacement for the 30 year-old A-6 Intruder medium bomber. Though it had provided yeoman service since the early 1960s, the A-6 was aging and on its way to retirement by the end of the Gulf War in 1991. The Navy earlier tried to develop a replacement during the 1980s--the A-12--but bungled the project so badly that the whole mess was scrapped in 1991. The A-12 fiasco cost the taxpayers $5 billion and cost the Navy what little reputation it had as a service that could wisely spend taxpayer dollars. Nevertheless, the requirement for an A-6 replacement remains. Without an aircraft with a longer range and greater payload than the current F/A-18, the Navy lost much of its offensive punch. Consequently it turned to the original F/A- 18--a combat-proven performer, but a short-ranged light bomber when compared to the A-6. Still stinging from the A-12 debacle, the Navy tried to ``put one over'' on Congress by passing off a completely redesigned aircraft--the Super Hornet--as simply a modification of the original Hornet. The obfuscation worked. Many in Congress were fooled into believing that the new aircraft was just what the Navy told them it was--a modified Hornet. In fact, the new airplane is much larger--built that way to carry more fuel and bombs--is much different aerodynamically, has new engines and engine intakes and a completely reworked internal structure. In short, the Super Hornet and the original Hornet are two completely different aircraft despite their similar appearance. Though the deception worked, the new aircraft--the Super Hornet--does not. Because it was never prototyped--at the Navy's insistence--its faults were not evident until production aircraft rolled out of the factory. Among the problems the aircraft experienced was the publicized phenomenon of ``wing drop''--a spurious, uncommanded roll, which occurred in the heart of the aircraft's performance envelope. After a great deal of negative press, the Super Hornet team devised a ``band-aid'' fix that mitigated the problem at the expense of performance tradeoffs in other regimes of flight. Regardless, the redesigned wing is a mish-mash of aerodynamic compromises which does nothing well. And the Super Hornet's wing drop problem is minor compared to other shortfalls. First, the aircraft is slow--slower than most fighters fielded since the early 1960s. In that one of the most oft-uttered maxims of the fighter pilot fraternity is that ``Speed is Life,'' this deficiency is alarming. But the Super Hornet's wheezing performance against the speed clock isn't its only flaw. If speed is indeed life, then maneuverability is the reason that life is worth living for the fighter pilot. In a dog fight, superior maneuverability allows a pilot to bring his weapons to bear against the enemy. With its heavy, aerodynamically compromised airframe, and inadequate engines, the Super Hornet won't win many dogfights. Indeed, it can be outmaneuvered by nearly every front-line fighter fielded today. ``But the Super Hornet isn't just a fighter,'' its proponents will counter. ``It is a bomber as well.'' True, the new aircraft carries more bombs than the current F/A-18-- but not dramatically more, or dramatically further. The engineering can be studied, but the laws of physics don't change for anyone--certainly not the Navy. From the beginning, the aircraft was incapable of doing what the Navy wanted. And they knew it. The Navy doesn't appear to be worried about the performance shortfalls of the Super Hornet. The aircraft is supposed to be so full of technological wizardry that the enemy will be overwhelmed by its superior weapons. That is the same argument that was used prior to the Vietnam War. This logic fell flat when our large, expensive fighters--the most sophisticated in the world--started falling to peasants flying simple aircraft designed during the Korean conflict. Further drawing into question the Navy's position that flight performance is secondary to the technological sophistication of the aircraft, are the Air Forces' specifications for its new--albeit expensive--fighter, the F- 22. The Air Force has ensured that the F-22 has top-notch flight performance, as well as a weapons suite second to none. It truly has no rivals in the foreseeable future. The Super Hornet's shortcomings have been borne out anecdotally. There are numerous stories, but one episode sums it up nicely. Said one crew member who flew a standard Hornet alongside new Super Hornets: ``We outran them, we out-flew them, and we ran them out of gas. I was embarrassed for those pilots.'' These shortcomings are tacitly acknowledged around the fleet where the aircraft is referred to as the ``Super- Slow Hornet.'' What about the rank-and-file Navy fliers? What are they told when they question the Super Hornet's shortcomings? The standard reply is, ``Climb aboard, sit down, and shut up. This is our fighter, and you're going to make it work.'' Can there be any wondering at the widespread disgust with the Navy's leadership and the hemorrhaging exodus of its fliers? Unfortunately, much of the damage has been done. Billions of dollars have been spent on the Super Hornet that could have been spent on maintaining or upgrading the Navy's current fleet of aircraft. Instead, unacceptable numbers of aircraft are sidelined for want of money to buy spare parts. Paradoxically, much of what the Navy wanted in the Super Hornet could have been obtained, at a fraction of the cost, by upgrading the current aircraft--what the Navy said it was going to do at the beginning of this mess. Our military's aircraft acquisition program cannot afford all the proposed acquisitions. Some hard decisions will have to be made. The Super Hornet decision, at a savings of billions of dollars, should be an easy one. Again, what I have just been reading for several minutes is an op-ed from Lt. Col. Jay Stout, somebody who actually knows this airplane well. Now I would like to read a brief letter that rebuts Admiral Nathman's letter, which was in response to Lt. Col. Jay Stout's piece. In his response to Lt. Col. Jay Stout's Dec. 15 op-ed criticism of the F-18E Super Hornet, Rear Adm. John Nathman accused Stout (letter, Dec. 23) of ``unfounded assertions.'' What this letter then says is: Nathman claimed that the F-18E has completed ``the most rigorous and scrutinized process of procurement, acquisition and evaluation in recent Department of Defense and naval history.'' On the contrary, the F-18E was initially rejected by the Navy and only rushed into the budget at the last minute when the A-12 was canceled. In the fall of 1990, the Navy re-examined its requirements for a deep strike aircraft. It dismissed the F-18E as unacceptable in both range and stealth. As to stealth, it concluded that ordnance hanging under the F-18E would provide too good a target on radar. When then Defense Secretary Richard Cheney canceled the A- 12, the Navy pushed the F-18E onto center stage, ignoring regulations that required a new design number for ``major design changes within the same mission category.'' Instead, the Navy gave the new aircraft a new series letter, to make this new aircraft appear as a mere modification. The Navy did this to avoid approximately 25 specific oversight steps. In so doing, the Navy insured that the F-18E would avoid, from its inception, the ``scrutinized process of procurement, acquisition and evaluation,'' about which Nathman wrote. The Navy's attempt to minimize oversight extended to the Congress. The Navy flight test director, in October 1996 and March 1997, issued two F-18E deficiency reports. In spite of these reports, the Chief of Naval Operations wrote four months later to the chairman of the Senate National Security Committee as follows: The F/A-18 E/F has flawlessly progressed through every required milestone to include operational requirements, mission needs, cost and threat analysis, and engine development . . . Testing results have clearly exceeded all specific performance parameters. Rear Adm. Nathman states that the F-18E has 40 percent more range. Such a statement is misleading. In 1993, the Navy admitted that under the same conditions and weapons loads, the promised range of the F-18E was between 15 and 19 percent less than the original F-18A specification. It remains for Nathman to provide evidence that the F-18E's performance is now greater than its 1993 promise. Finally, Nathman complained that Stout wrote his article ``without checking some readily available factual information.'' From what we have seen, even those charged with oversight--our congressmen--cannot obtain ``readily available factual information.'' Stout got his information from sources that are more reliable than the CNO's communication with Congress. If Stout had continued his investigation, he would have learned that far from pushing ``current technology to its limit,'' the Navy will give future naval aviation--for twice the program unit cost--an airplane that, below 20,000 feet with pylons on, cannot fly supersonic. There is some question as to whether this fact is included within the ``readily available'' information of which Nathman spoke. Madam President, that is the response of James Stevenson to the Navy's letter questioning Lt. Col. Jay Stout's comments. I offer these as evidence that we are about to embark on an F/A-18E and F airplane that, frankly, after having been looked at for several years, at best is not better than the current plane, and probably is worse, and is enormously more expensive than continuing with the FA-18C and D plane. Exhibit 1 [From the Virginian-Pilot, Dec. 23, 1999] Look at the Facts: The Navy's New Hornet Is Super Indeed (By Rear Admiral J.B. Nathman) It is healthy to bring opposing views forward in open and honest discussion. Unfortunately, this was not the case in a Dec. 15 op-ed column on the F-18E/F Super Hornet. (``The Navy's super fighter is a super failure''). This article was apparently written without checking some readily available factual information. As the one responsible for establishing naval aviation requirements, I can set the record straight with regard to the performance and warfighting capabilities of the Super Hornet. I would also like to speak for the thousands of individuals, both military and civilian, whose efforts were involved in bringing the Super Hornet's warfighting capability to our Naval Air Force. The F-18E/F Super Hornet has just completed the most rigorous and scrutinized process of procurement, acquisition and evaluation in recent Department of Defense and naval history. Going into the final evaluation process, the Super Hornet met or exceeded every established performance milestone. The Super Hornet was designed from Day One to be a decisive strike-fighter, equipped to handle the threats and win in today's environment and for the foreseeable future. Achieving this goal required years of planning and pushed current technology to its limits to obtain the most combat ``bang for the buck'' for the US Navy and American taxpayer. As compared to the current model F-18, proven enhancements include: 40 percent increase in mission combat radius. 50 percent increase in combat on-station time. Three times the carrier recovery payload--safer carrier operations for our pilots. Improved survivability, lethality and greater penetration into the enemy's battle space. Growth potential for future combat enhancements and mission requirements. In today's environment, the calculus of combat effectiveness is much more than just speed. With its superb combat maneuverability, radar and weapons systems, impressive suite of electronic countermeasures, ability to withstand greater combat damage and increased fuel capacity, the Super Hornet is not only more survivable but three to five times more combat effective than any other naval aircraft in the inventory. The author's unfounded assertions with regard to performance are simply not borne out by the facts and do not reflect the performance of the combat-ready Super Hornet. Naval Aviation has made tough but sound choices with the Super Hornet program. Some trade-offs are inevitable and appropriate, particularly in an austere defense budget climate, but this aircraft answers the Navy's needs. The F/A-18E/F is an outstanding investment for the American taxpayer and will serve as a model for future Navy programs and procurement. The Super Hornet is being delivered on time, on budget and is at the heart of naval aviation's ability to fight and win in the 21st Century. In the final analysis, hard fact--not innuendo, anecdote or rumor--will establish the operational supremacy of this aircraft. By every measure, Boeing and the Navy's new Hornet are indeed super. The aircraft is in great shape as it completes final evaluation. Because the Virginian-Pilot is read by thousands of men and women in the naval aviation community, both active-duty and retired, I felt it was my responsibility to respond to a column riddled with inaccuracies. [From Business Week, Dec. 13, 1999] The (Not So) Super Hornet--Why the Navy Is Spending Billions on a Fighter Jet With Flaws That Costs Twice as Much as Its Predecessor (By Stan Crock) Pentagon analyst Frnaklin C. Spinney remembers the conversation with crystal clarity. Over dinner with a Marine flier in late 1991, talk turned to Navy plans for a new version of the F-18 Hornet. Earlier in the year, the Pentagon had killed the new A-12 bomber. Other Navy planes were decades old. And the service thought existing F/A-18s couldn't fly long-range missions. To fill carrier decks, the Navy decided to rely on an upgrade of the F-18 used by the fabled Blue Angels. ``We've got to have this even if it doesn't work,'' the pilot confided. How prophetic. On Nov. 16, the F/A-18E/F Super Hornet finished operational-evaluation flights, the last step before full production, set for this spring. And Congress in September approved a five-year, $9 billion authorization for the fighter-attack aircraft, which will cost $47 billion through 2010. But by many accounts, the $53 million-a-copy plane is only slightly better than its predecessor, the F/A- 18C/D (table, page 136), which costs half as much. And the E/ F's flying performance ``is almost unambiguously a step backward,'' says Spinney. As a debate rages on Capitol Hill over thee Pentagon's ambitious plans to buy three new aircraft for an astounding $340 billion over the next three decades, Boeing Co.'s Super Hornet has managed to fly under the radar with political, if not technological, stealth. The saga of how it has done so shows just how hard it will be to kill off any of the three: the Super Hornet, the Air Force's F-22 Raptor, and the Joint Strike Fighter. The ingredients of the F/A-18E/F's tale include a Navy anxious not to cede missions to the Air Force, an ailing defense contractor, and lawmakers looking to preserve defense jobs. The Pentagon and Boeing staunchly defend the program. The E/F won a Pentagon award in 1996 for excellence in engineering and development. And supporters note it's on schedule and under budget. Says Patrick J. Finneran, Boeing's F-18 czar: ``This thing gets gold stars.'' The General Accounting Office, Congress' watchdog agency, begs to differ. It noted in a June, 1999, report that as full production neared, the plane had 84 deficiencies, including radar that couldn't tell the direction of oncoming threats. It recommended--in vain-- that Congress reject a multiyear commitment to the program. Critics say one reason for the Super Hornet's woes is that the Navy dubbed the E/F a modification of its C/D predecessor. That was true even though the E/F has a different wing, fuselage, and engine, and is 25% heavier. About 85% of the wing and airframe components are different from those of the F/A-18C/D, according to an analysis by the Cato Institute, a conservative think tank. All of this led some experts to say it's a new aircraft. Reeling. But a new plane would have been harder to sell to Congress and wouldn't have been exempt from some lengthy procurement requirements. Most important, St. Louis-based McDonnell Douglas Corp., the F-18's builder, would not have been guaranteed the work. At the time, McDonnell Douglas, which Boeing acquired in 1997, was reeling from cost overruns on other programs and the A-12's termination. The shorter procurement process for a modification meant McDonnell Douglas didn't have to build a prototype to help iron our kinks. The risks from this approach became apparent in March, 1996, during the Super Hornet's seventh test flight. The plane suddenly started to roll as it approached supersonic speed. A blue-ribbon panel said in a Jan. 14, 1998, report that the wing-drop phenomenon ``could put flight safety at risk.'' And the flaw would make it tough for pilots to track enemy aircraft. The Navy downplays the issue, saying wing drops had cropped up--and been solved--in previous programs. But fixing the problem proved difficult. One solution--a new wing covering-- caused yet another problem: vibrations so severe that pilots had trouble reading the display. Another shrewd Navy ploy was to lower the bar for performance standards. When the Navy brass debated whether the E/F should be required to turn, climb, accelerate, and maneuver better than the C/D version, Vice Admiral Dennis V. McGinn, then the head of naval air warfare, rejected all but acceleration. A good thing, too, because the E/F doesn't perform so well in the other areas. In a Jan. 19, 1999, memo, Phillip E. Coyle, a top Defense Dept. weapon systems evaluator, says such Russian fighters as the Su-27 and Mig-9 ``can accelerate faster and out-turn all variants of the F/A- 18 in most operating regimes.'' The memo says while that's the price for more payload and range, the Navy plans to use air-combat tactics that won't require the capabilities of the earlier F/A-18 models. Despite efforts to compensate for shortcomings, a July, 1997, report by an advisory board of Pentagon and contractor representatives warned that evaluators may find the plane ``not operationally effective'' even if it meets all requirements. One solution proposed: ``aggressive indoctrination of operational community to help them match expectation to reality of F/A-18E/F.'' Translation: Lower pilots' expectations. Early on, one of the Super Hornet's key selling points was a project that the plane would fly 40% farther than its predecessor. But the longer-range figure assumed that 80% of the fleet would be one-seater planes. One-seaters carry more fuel than two-seaters and thus can fly farther. But now the Navy wants just 55% of the fleet to be one-seaters. While this lets it replace the ancient F-15 Tomcat--a two-seater-- it undercuts the longer-range promises. In actual performance, the one-seater shows a range of 444 nautical miles, only 20% above the older F/A-18C's 369-mile range, the GAO says. The Navy also says the E/F will have 17 cubic feet more room for high-tech gear than the C/D. But the GAO found only 5.46 cubic feet were usable--and that nearly every upgrade could be installed on the C/D. And the Navy claims that the Super Hornet performs a crucial function better than the C/D: Returning to a carrier with unusual munitions. But critics say it would be cheaper to dump the bombs in the ocean than to pay $30 million extra for the E/F. Boeing's Finneran disputes the GAO's findings. He says recent tests show the planes have exceeded range goals, and he rejects the notion that the C/D has the space to be upgraded. Still, looking at the broad picture, former National Security Adviser Brent Scowcraft would kill the program because the E/F ``has the least modernization'' of the three new planes under development. The Super Hornet has plenty of support on Capitol Hill, though. When a House National Security subcommittee threatened funding for the program in 1996, House Minority Leader Richard A. Gephardt of Missouri called every Democrat on the full committee. Representative Jim Talent (R-Mo.) collard his GOP brethren. The funding cuts were restored. Even GOP Presidential hopeful Senator John McCain, who often attacks Pentagon waste, backs the program. The upshot? The Navy will get its plane, regardless of how it works. But Marine pilots won't fly it. They're waiting for the stealthy Joint Strike Fighter, slated for production around 2008. ``If we were going to spend dollars, we wanted to spend them on something that was a leap in technology,'' says recently retired General Charles C. Krulak, a former Marine commandant who opted not to buy the Super Hornet. Indeed, Marine pilots' fears now are quite different from those Spinney heard in 1991. ``If the Joint Strike Fighter dies,'' frets one airman, ``we're stuck with the Super Hornet.'' words of warning Official Evaluation--The Operational Test and Evaluation Force ``may find the F/A-18E/F not operationally effective/ suitable even though all specification requirements are satisfied'' Translation--This plane may have plenty of problems even if it meets our specs. Official Evaluation--How to mitigate the problem: ``aggressive indoctrination of operational community to help them match expectation to reality of F/A-18E/F.'' Translation--We oversold this plane and now need to lower pilots expectations.

Mr. FEINGOLD. Mr. President, I have been a long-time critic of the Navy's F/A-18 E/F Super Hornet program. For years, I have come to the floor to highlight this program's shortcomings, and I have offered bills to kill the program and amendments to try to achieve greater scrutiny over the program. Sometimes my colleagues have agreed with me, and more often than not, they have not on this particular issue. I understand that, in all probability, the Super Hornet program will get its final green light this spring, and it will go into full-rate production. However, I will continue to fight for responsible defense spending and continue to try to enlighten my colleagues about this inferior, unnecessary, and expensive program. With that in mind, I have asked Secretary Cohen to delay his production decision until he reviews a GAO audit of the Super Hornet program's Operational Evaluation. I will read an opinion-editorial by Lieutenant Colonel Jay Stout, a highly-regarded, active duty Marine fighter pilot of the F/A-18C, and combat veteran. The Virginian-Pilot published his opinions this past December. Rear Admiral J.B. Nathman, the Navy's director of air warfare, wrote the requisite, tired response, with a little personal invective thrown in. A subsequent piece by James Stevenson, a well-known aviation writer, rebuts each of Admiral Nathman's arguments. I will read Stevenson's letter, as well. I will read the article by Mr. Stout, and I ask unanimous consent that two other articles, plus a December 13, 1999, article from Business Week be printed in the Record at the conclusion of my remarks.

Mr. FEINGOLD

Mr. FEINGOLD. I ask unanimous consent to speak as in morning business.

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

Mr. FEINGOLD. Mr. President, I rise today because I share the concern of many of my colleagues about the situation in the Commonwealth of the Northern Mariana Islands. I especially thank my colleagues from Alaska and Hawaii for their leadership, and I am very glad this legislation is before us. Allegations of human trafficking, grossly sub-standard working conditions, deceitful recruitment practices, even indentured servitude, must be taken seriously--particularly when these practices are alleged to occur on American soil. I also rise to highlight some very relevant issues about which I am deeply concerned. As we consider the case of the CNMI, we must recognize that there are other examples of this kind of international exploitation, and that such practices often find their roots in organized crime syndicates that span boundaries, and patterns of corruption that cross borders. In fact, according to a report issued by the nongovernmental organization, the Global Survival Network, on the situation in the CNMI, . . . organized crime groups from the People's Republic of China, South Asia, and Japan reap large profits from human trafficking. Chinese provincial government agencies reportedly collude with Chinese traffickers by pocketing a percentage of passport fees paid by Chinese immigrants. Chinese criminal groups have moved part of their operations to the CNMI, where they operate significant gambling and money-lending operations. Japanese organized crime groups also operate in Saipan, where they control a large part of the sex tourism sector. Let this be a wake-up call for all of us--international crime is an increasingly disturbing problem, and it is not something that happens only in other parts of the world. This is an issue that I intend to work on in the months ahead. According to NGO estimates, between 1 million and 2 million women are trafficked each year for the purposes of forced prostitution, many of them from Russia and other parts of Eastern Europe and Central Asia. In 1998, the FBI indicated that, of the Russian crime cases they had investigated abroad, 55 percent involved fraud, 22 percent money laundering, and the rest murder, extortion, and the smuggling of people, arms, and drugs. These kinds of activities are global phenomenon, and the United States is not immune to these forces. Members of this body are all too familiar with the role of Colombian and Nigerian criminal organizations in the drug trade that casts a shadow over virtually every American community today--including my own hometown. We have all been alarmed by last year's revelations about the laundering of Russian money through U.S. banks. Recent reports indicate that Poland is overwhelmed in its efforts to combat money laundering schemes--many of which have an international component. In fact, some 170 Polish gangs have ties with criminal groups abroad. Too often, money-laundering schemes entail the buying-off of corrupt officials, creating a cycle of complicity that undermines the rule of law, stability, and the very legitimacy of government itself. Few would dispute the fact that corruption played a role in the Asian financial crisis of 1997 and 1998, or that it hampers political, social, and economic development throughout a region that I care deeply about--sub-Saharan Africa, a region where international crime and corruption often go hand-in-hand. The GAO has reported that Americans lose up to $2 billion per year to African-based white collar crime syndicates. In Angola and Sierra Leone, corruption fuels the trade in illicit diamonds, which in turn finances brutally violent conflicts. There can be no doubt that international crime and corruption are critical security issues and economic issues--but there can also be no doubt that they are human rights issues, and social development issues as well. These patterns will increasingly have an impact on the lives of Americans in this new century, and the manner in which we respond will determine, in part, the degree to which all people of all nations can achieve a better life in the years ahead. Mr. President, I intend to look more closely at these trends in international crime and corruption in the months ahead. I yield the floor.