Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am pleased to support the ANTI-GANG Act, introduced today by the Senator from Illinois, Senator Durbin. This critical legislation will provide State and Federal law enforcement with the tools and resources needed to successfully fight the expanding presence of violent gangs that bring drugs like methamphetamine into our communities. Time and time again, we in Congress have heard the call of prosecutors and law enforcement for more resources to combat the problem of gang violence. The ANTI-GANG Act gives local prosecutors and law enforcement what they have asked Congress for most--targeted financial assistance. The bill will help combat the growth and proliferation of violent gangs by authorizing funds for the cooperative prevention, investigation, and prosecution of gang crimes. In addition, grant money will be made available for the protection of witnesses and victims of gang violence. These funds will not be tied to restrictive formulas that would keep the majority of the assistance from reaching suburban and rural communities. This money will be able to go to the communities in Wisconsin and the rest of the country where rural and smaller law enforcement agencies are financially limited in their ability to deal with the exploding increase in gang violence associated with methamphetamines and other narcotics. The ANTI-GANG Act also promotes hiring and long-term service of highly qualified prosecutors and public defenders by establishing a student loan forgiveness program. Prosecuting gangs is some of the most demanding and challenging work a prosecutor will tackle. Loan forgiveness will allow the recruitment of the very best Assistant District Attorneys and Assistant Attorneys General and allow them to remain in public service longer so they can use their wealth of experience to combat gang violence. The ANTI-GANG Act also replaces the current Federal RICO statute, which was never intended to be used against violent street gangs, with a tough statute that not only criminalizes participation in criminal street gangs, but also addresses the serious problem of the recruitment and retention of gang members. The ANTI-GANG Act targets gang violence and gang crimes in a logical, straightforward manner. The bill also recognizes that the vast majority of gang investigations and prosecutions have been and will continue to be done at the State and local level. The bill requires that Federal prosecutors consult with State and local law enforcement and certify that a Federal prosecution is in the public interest Finally, the ANTI-GANG Act will provide Congress with the data necessary to decide whether to expand the Federal role in prosecuting juvenile offenders by requiring a comprehensive report on the current treatment of juveniles by the States and the capability of the Federal criminal justice system to take on more juvenile cases and to house additional young prisoners. Some have proposed indicting and prosecuting more juveniles in Federal courts as a way of combating gang violence. It is very hard to know whether this will work, and what effect if might have on the criminal justice system. With the review required by the ANTI-GANG Act, Congress can intelligently consider whether to expand to Federal role in prosecuting juveniles. We all know that the gang problem is a serious one, and that it is only getting worse. Other members of Congress have proposed different approaches to combating the gang problem, and the House of Representatives has passed its own gang bill. But the ANTI-GANG Act is the approach most responsive to the needs of State and local prosecutors who are on the ground fighting this problem, day in and day. Other approaches go down the wrong path. State and Federal prosecutors have not demanded unchecked and increased Federal jurisdiction over State crimes that diminishes the States' historic and primary role in fighting violent street gangs. They did not come to us seeking new and expanded Federal death penalty crimes, but rather effective laws that focus on the recruitment and retention of gang members. They never mentioned needing a massive and unwarranted reworking of the Federal rules used to prosecute juveniles as adults, regardless of whether the juvenile is in a gang or not. And, to my knowledge, no prosecutors have put increased mandatory minimums targeted at first offenders on their wish list. All of these approaches sound tough, but they aren't what prosecutors and law enforcement have asked for and they won't solve the gang problem. Our citizens should be able to send their children to school, use their parks, and walk their streets without fearing that gang violence will grow unfettered in their community. The ANTI-GANG Act is an important step towards making all of our neighborhoods safe. I am proud to cosponsor it and I urge my colleagues to support it.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, while I voted for a similar amendment offered by the Senators from Arizona, Mr. McCain, and Connecticut, Mr. Lieberman, in 2003, unfortunately, the current version of the amendment includes over $600 million in taxpayer subsidies for the creation of new nuclear powerplants. The nuclear industry is a mature industry that does not need to be propped up by the taxpayers. Over 300 national environmental and consumer organizations, including the League of Conservation Voters, Public Interest Research Group, and the Sierra Club, oppose this amendment. Our Nation faces an ever-growing budget deficit and we must be fiscally and environmentally responsible. I strongly believe that global warming is an important national issue, which is why I supported the Bingaman-Specter sense-of-the-Senate amendment to push for a national policy on global warming. I will continue to work with my colleagues on both sides of the aisle to create a meaningful global warming program.

Mr. FEINGOLD. Mr. President, I regret that I was unable to take part in yesterday's cloture vote because I was testifying before the BRAC Commission in St. Louis, MO, along with the senior Senator from Wisconsin, in an effort to save the Milwaukee-based 440th Airlift Wing from closing. The fate of the 440th is very important to me and my constituents, and, while I have only missed a handful of votes in my 12 years in the Senate, it is clear to me that testifying in St. Louis was the right decision. If I had been present I would have again voted against the cloture motion on the nomination of John Bolton. Since the motion required 60 votes to pass, my absence did not affect, and could not have affected, the outcome of the vote.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, The Senator from Kansas and I would like to engage in a colloquy with Chairman Domenici and Ranking Member Bingaman about an issue that we're concerned could adversely affect electricity consumers and small businesses.

Mr. FEINGOLD. Yes, we thank you and look forward to working with the committee on this common-sense proposal.

Mr. FEINGOLD. In addition to consumers and small businesses, we have heard from a diverse array of financial companies and credit agencies that are deeply concerned about this issue. From 2001-2003, financial ratings agencies issued over 180 bond downgrades--overwhelmingly as a result of poor performance by nonutility investments. All too often, utilities have succumbed to temptation and have relied on the more stable, regulated utilities within the company to shore up balance sheets and offset risky nonutility investments, while customers, ratepayers and investors pay the bill. We all agree that we cannot let Enron-style abuses we keep hearing about from consumers, small businesses, and financial companies continue. The Feingold-Brownback amendment adds a new section to the Federal Power Act to give FERC new power to regulate transactions between public utility companies and their affiliate and associate companies. The amendment also requires FERC to issue regulations that require affiliate, associate, and subsidiary companies to be independent, separate, and distinct entities from public utilities; maintain separate books and records; structure their governance in a manner that would prevent creditors from having recourse against the assets of public utilities; and prohibit cross-subsidizing, or shifting costs from affiliate, associate, or subsidiary companies to the public utilities.

Mr. FEINGOLD. I am pleased that language in the underlying amendment includes more merger oversight authority for FERC, it includes anti- market manipulation language, and it allows FERC to look at the books. My concern is that if there are not standards about keeping the entities separate, FERC's authority will not be enough to prevent abuses. I am also concerned that State commissions, public service commissions, and others are not able to take care of these kinds of problems because they often do not have the authority to regulate these multi-State entities. That's why small businesses and consumers need increased Federal protection, especially given that this bill repeals the Public Utility Holding Company Act.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I want to take a moment to pay tribute to Rotary International as the organization celebrates its 100th anniversary this week in Chicago. Paul P. Harris' establishment of the original Chicago chapter heralded an era of philanthropic activity and community building that has flourished throughout the last century. Rotary International's extensive public service stands as an example of what we can accomplish through organization and commitment to the common good. Since its inception, our nation has relied on the cooperation of disparate communities to achieve common goals. Rotary Clubs provide a critical forum of communication for leaders from a wide variety of backgrounds to share information and ideas. Through Rotary, men and women from myriad professions can share thoughts from their distinct perspectives. These perspectives are what gives Rotary its great strength, and have enabled the organization to accomplish so much in the last century. Without a doubt, one of those great accomplishments has been Rotary International's work, begun in 1985, to eradicate polio through its PolioPlus program. Thanks to the efforts of Rotarians worldwide, the Western Hemisphere, Europe, and the Western Pacific have been declared polio-free. Rotary's continuing success combating polio provides hope to the world's health community as we struggle against the ravages of disease. I am proud to be an original cosponsor of S. Res. 62, a resolution supporting the goals and ideals of a ``Rotary International Day'' and celebrating and honoring Rotary International on the occasion of its centennial anniversary. Last Congress, I was also pleased to be the lead Democratic co-sponsor of S. Con. Res. 111, a resolution expressing the sense of the U.S. Congress that a commemorative stamp should be issued in honor of the centennial anniversary of Rotary International and its work to eradicate this disease. In addition to Rotary's work to combat polio, the organization also provides indispensable support to students. The Rotary Student of the Month program consistently encourages high school students to become leaders in their schools and communities, while the Rotary scholarship program provides funds for deserving students. The list of Rotary's contributions to our communities goes on and on. I join people across the U.S., and around the world this year who honor Rotary's many accomplishments as the organization celebrates 100 years of service. I would like to offer my heartfelt congratulations and best wishes for the organization's next 100 years.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I will vote no on the nomination of Thomas Griffith to be a Judge on the D.C. Circuit Court of Appeals. The D.C. Circuit is widely regarded as the most important Federal circuit. It has jurisdiction over the actions of most Federal agencies. Many of the highest profile cases that have been decided in recent years by the Supreme Court concerning regulation of economic activity by federal agencies in areas such as the environment, health and safety regulation, and labor law, went first to the D.C. Circuit. In the area of administrative law and the interpretation of the major regulatory statutes such as the Clean Air Act, the Clean Water Act, the Occupational Safety and Health Act, and the National Labor Relations Act, the D.C. Circuit is often the last word, as the Supreme Court reviews only a tiny minority of circuit court decisions. After the confirmation of Judge Janice Rogers Brown last week, there are 6 judges on the D.C. Circuit who were appointed by Republican Presidents, and four by Democrats, and there are two vacancies. President Clinton, of course, made two nominations that were never acted upon by the Senate Judiciary Committee. In one case, the committee held a hearing but never scheduled a vote on attorney Alan Snyder, and in another case, Clinton nominee and now Harvard Law School Dean Elena Kagan wasn't even given the courtesy of a hearing. I am disappointed that the Bush administration has not been willing to seek a compromise on judicial nominees, and on this circuit in particular. At the beginning of President Bush's first term, there were enough vacancies to accommodate the two nominations by President Clinton who were treated so badly in the 106th Congress and allow President Bush to nominate additional judges to the circuit. The administration squandered an opportunity to change the tone and repair some of the damage done to the nomination process by previous Congresses. In light of this history, and the importance of this circuit, I believe it is my duty to give this nomination very close scrutiny. After reviewing Mr. Griffith's record and his testimony at two different Judiciary Committee hearings, I do not believe he should be confirmed to a lifetime appointment to this important court. Let me take a few minutes to outline the concerns that have caused me to reach this conclusion. Mr. Griffith's adherence to professional rules of conduct and State laws regarding bar membership has been less than scrupulous. In the District of Columbia, Mr. Griffith twice was administratively suspended for failure to pay his bar dues, one time for over 3 years. During that time, Mr. Griffith continued to practice law in the District and then in Utah. This might not be all that troubling if he had later been honest about the administrative suspensions he received for failure to pay his dues. Instead, Mr. Griffith failed to note those suspensions in answering two separate questions on his Utah bar application in November 2003. First, he answered ``no'' when asked if he had ``ever been disbarred, suspended, censured, sanctioned, disciplined, or otherwise reprimanded or disqualified, whether publicly or privately, as an attorney.'' At his hearing before the Judiciary Committee, Mr. Griffith claimed that he interpreted the question as referring only to disciplinary suspensions, and that he considered his suspension from the D.C. bar to be administrative. Given the clear language of the question, and the fact that the application gives an applicant the opportunity to explain a yes answer, Mr. Griffith's no response is cause for concern. In addition, Mr. Griffith answered yes when asked whether he had ``ever given legal advice and/or held himself out as an attorney, lawyer, or legal counselor in the state of Utah.'' He stated: Since August 2000, I have served as Assistant to the President and General Counsel at [BYU]. When called up to act in my capacity as an attorney, I have done so as a member of the bar of the District of Columbia. At the time he answered this question in 2003, Mr. Griffith certainly was aware that his license in D.C. had been suspended from November 1998 to November 2001. Even more disturbingly, Mr. Griffith has practiced law in Utah without a Utah law license, and still does so to this day. Utah law does not provide that in-house counsel do not need to obtain a Utah law license. Yet Mr. Griffith failed to seek guidance from the Utah bar for almost three years on what he could and could not do without a Utah law license when he began working for BYU. Instead, according to this testimony, Mr. Griffith relied on his own professional experience and discussions with other in-house counsel in Utah. None of these people told him such an exception existed, yet he did not make inquiries to the bar until 2003. In 2003, Mr. Griffith received a letter from Katherine Fox, general counsel to the Utah bar, which indicated that he should limit himself to work that would not constitute the practice of law, and if he had to practice law, he should do so only in close association with members of the Utah bar. She also advised him to sit for the bar exam as soon as possible, and warned him that lawyers who have practiced in the state without a Utah license have later had difficultly obtaining such a license. Since he received that letter, Mr. Griffith has had four opportunities to sit for the Utah bar, but has instead insisted that he may practice law in Utah without a law license so long as he works in close association with members of the Utah bar. He made it abundantly clear at his second hearing that he does not intend to sit for the Utah bar exam. I suppose that since he is now about to be confirmed to a D.C. Circuit seat for life, he won't have to. But his attitude toward a basic responsibility of every practicing lawyer was disturbing. In response to these concerns, Mr. Griffith stated at his hearing that from the very beginning of his work as general counsel at BYU he has worked in close association with attorneys in his office who were licensed to practice in Utah. When I questioned him about his adherence to this close association requirement during his time in Utah, I was troubled by what I learned. Although Mr. Griffith insists that he has always worked in close association with members of the Utah bar when dispensing legal advice, he can provide no documentation of that practice whatsoever. It is not even clear how Mr. Griffith interprets the close association requirement. He testified, for example, that he does not require a licensed member of the Utah bar to be present on phone calls where he dispensed legal advice. Mr. Griffith's failure to document his close association with other attorneys is disturbing and revealing, in light of the letter from Katherine Fox, which warned him about the consequences that practicing law without a license might have on his eventual application to the bar. It also makes it even more difficult to believe that when he began working for BYU he was aware of the issue and was taking steps to ensure he involved members of the Utah bar in activities that would be considered giving legal advice. Mr. Griffith did submit several letters written beginning last summer from current and former officers of the Utah bar, to support his position that he has not violated bar rules so long as he works in close association with members of the Utah bar. These letters were written, however, long after Mr. Griffith approached the bar about a general counsel exception, and long after he received notice from Ms. Fox of the Utah bar's position on it. Furthermore, these letters reiterate that there is no general counsel exception to the requirement that a lawyer practicing law in Utah must be a member of the Utah bar. Mr. Griffith's entire approach to the issue of his Utah bar membership has been to suggest that he knew all along what he was doing and took care to avoid any improper conduct. But a prudent and careful person, aware of and being careful to abide by restrictions on his activities, would have documented his actions. It seems clear to me that much of Mr. Griffith's argument is simply a post hoc rationalization. He has chosen to stick to his story and try and convince the Senate that he was fully aware of the Utah license issue from the beginning and acted at all times in accordance with part of the advice he received only in 2003. I find Mr. Griffith's explanations not credible and disdainful of his professional obligations. This is not the kind of conduct that the public has a right to expect from someone who will sit on the second most important court in the land. Mr. President, I am not predisposed to vote against judicial nominees. In fact, I have voted for over 90 percent of this President's choices. Mr. Griffith served the Senate with distinction, and his foremost supporter is the former chairman of the Judiciary Committee, for whom I have great regard. But we have an affirmative duty to place on the bench judges who adhere to the ethical standards of the legal profession. I am not satisfied that Mr. Griffith meets that test, and I will vote no.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today, I am submitting a resolution that addresses a gaping hole in the administration's rhetoric and strategy with respect to Iraq. My resolution calls on the President to define the mission of our military in Iraq, and to issue a plan and timeframe for accomplishing that mission. It has been over 2 years since the President launched the war in Iraq, but we still don't have a defined mission or timeframe that would allow us to hold ourselves accountable for giving the military the tools they need to succeed in achieving those goals. My resolution also calls for a plan for the subsequent withdrawal of U.S. troops, so that we can provide some clarity with regard to our intentions and restore confidence at home and abroad that there is an end date in mind. This resolution does not establish a timeframe for troop withdrawal-- that is for our military commanders to determine. Any such timeframe has to be flexible--there are variables that will affect how quickly various missions can be accomplished. But it's hard to conceive of an effective strategic plan that isn't linked to some timetables. The rationale for our military action in Iraq has changed over time. The projections regarding the resources that would be required were wrong. And now we seem to be in the midst of some vague policy of muddling through. When I speak to servicemen and women in Wisconsin and in Iraq, and when I speak to their families, their pride in their service is evident and it is well-earned. But their frustration with this open-ended commitment, with the stop-loss orders and the multiple deployments, with the extensions and the uncertainties, is equally evident, and it is painful. We can do better by them, by insisting on clarity, by insisting on accountability, and by assuring them that we have a plan with clear and achievable goals. In fact, by leveling with the American people about our commitment in Iraq, the administration can regain some of their confidence. After the shifting justifications for this war, after the premature declarations of ``mission accomplished,'' after the exciting and inspiring elections, we still don't have any kind of finish line for our military engagement in Iraq. The American people and our troops deserve a sound plan that is linked to real timeframes and real achievements. A real timeframe will also help us achieve our security goals in Iraq. The most common argument against clarifying how long we plan to keep troops in Iraq goes something like this: If we reveal a timetable, insurgents and terrorists will simply lie in wait, emerging in force to achieve their goals once we are gone. But any responsible timetable for U.S. withdrawal would be based just on the establishment of a competent Iraqi force. Americans won't leave until that force has the training it needs to succeed. An Iraqi force, which would not suffer from shortages of translators or struggle to bridge the cultural divide, is the right force to handle any resurgent threat. Contrary to the conventional wisdom, the administration's refusal to set a plan and timetable about just how long vast numbers of U.S. troops will remain in Iraq is actually an advantage for insurgents and terrorists. This large U.S. military presence smack in the middle of the Arab world is a major recruiting tool for international terrorist networks, and young men are coming to Iraq from around the world to get on-the-job training in attacking Americans. These foreign forces are motivated by our presence, and they feed off conspiracy theories and suspicions regarding American intentions. When I was in Baghdad in February, a very senior coalition officer confided to me that he believed a public U.S. timetable for withdrawing from Iraq would ``take the wind out of the sails'' of the insurgents. What's more, the indefinite presence of vast numbers of American troops could also undercut the legitimacy of the Iraqi government in the eyes of many--ironically, destabilizing Iraq despite our best intentions. Having a timetable for the transfer of sovereignty and having a timetable for Iraqi elections have resulted in real political and strategic advantages for the U.S. Having a timetable for the withdrawal of troops should be no different. Clear plans could also help lead to responsible budgeting. This administration has bypassed the regular budget process, placing hundreds of billions of dollars on the country's tab, on the grounds that requirements are simply ``unknowable'' and cannot be incorporated into responsible budget planning. This is simply not credible, and continuing to mortgage our children's future with these irresponsible policies is unacceptable. It is time to hold ourselves accountable for the costs of this war, time to accept the tough choices that come with responsible budgeting, and time to insist on sound planning and clarity about all of this is going. This resolution is not some kind of cut-and-run strategy, or a call to bring all of our troops home now, regardless of what remains to be achieved on the ground. It is clear to me that we still have military missions on the ground--most notably, training the Iraqi forces to provide for their own security. Moreover, a military response--as well as a diplomatic response, and a financial response--is vital in combating terrorist networks in Iraq and elsewhere. It may well be that some units--perhaps special forces--will be operating in Iraq in coordination with the Iraqi military well into the future as part of the counterterrorism strategy that we need to be pursuing around the world, not just in Iraq. But Mr. President, the military is only one part of solving the puzzle that we face in Iraq. For many years to come, we will have to work diligently to combat a burgeoning culture of corruption in Iraq, or the rule of law doesn't stand a chance. We need to make reconstruction work and deliver real democracy dividends for the Iraqi people, and this work will go on for some time. Intense American diplomatic and political engagement and support are likely to continue long after all or most of the troops are withdrawn. Our troops on the ground are truly amazing in their resolve, their professionalism, and their sincere desire to help the people of Iraq. Their courage and commitment was underscored for me during my trip to Iraq earlier this year. I want to help these brave men and women succeed, by insuring that they have an achievable mission, sound planning, and a reasonable timeframe in which to finish their part of the job.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I say a few words to honor the extraordinary life of Robert M. La Follette Sr., on the 150th anniversary of his birth. Throughout his life, La Follette was revered for his tireless and deeply principled service to the people of Wisconsin and to the people of the United States. His dogged, full- steam-ahead dedication to his life's work earned him the nickname ``Fighting Bob.'' Robert Marion La Follette, Sr., was born on June 14, 1855, in Primrose, a small town southwest of Madison in Dane County. He graduated from the University of Wisconsin Law School in 1879 and, after being admitted to the state bar, began his long career in public service as Dane County district attorney. La Follette was elected to the United States House of Representatives in 1884, and he served three terms as a member of that body, where he was a member of the Ways and Means Committee. After losing his campaign for reelection in 1890, La Follette returned to Wisconsin and continued to serve the people of my state as a judge. Upon his exit from Washington D.C., a reporter wrote, La Follette ``is popular at home, popular with his colleagues, and popular in the House. He is so good a fellow that even his enemies like him.'' He was elected the 20th Governor of Wisconsin in 1900. He served in that office until 1906, when he stepped down in order to serve the people of Wisconsin in the United States Senate, where he remained until his death in 1925. As a founder of the national progressive movement, La Follette championed political reform, civil rights and workers' and women's rights throughout his career. As governor, he advanced an agenda that included the country's first workers compensation system, direct election of United States Senators, and railroad rate and tax reforms. Collectively, these reforms would become known as the ``Wisconsin Idea.'' His terms in the House of Representatives and the Senate were spent fighting for women's rights, working to limit the power of monopolies, opposing pork barrel legislation, and rooting out political corruption. La Follette also championed electoral reforms, and he brought his support of the direct election of United States Senators to this body. His efforts were brought to fruition with the ratification of the 17th amendment in 1913. Fighting Bob also worked tirelessly to hold the government accountable, and was a key figure in exposing the Teapot Dome Scandal. La Follette earned the respect of such notable Americans as Frederick Douglass, Booker T. Washington and Harriet Tubman Upton for making civil rights one of his trademark issues. At a speech before the 1886 graduating class of Howard University, La Follette said, ``We are one people, one by truth, one almost by blood. Our lives run side by side, our ashes rest in the same soil. [Seize] the waiting world of opportunity. Separatism is snobbish stupidity, it is supreme folly, to talk of non-contact, or exclusion!'' La Follette ran for President three times, twice as a Republican and once on the Progressive ticket. In 1924, as the Progressive candidate for president, La Follette garnered more than 17 percent of the popular vote and carried the state of Wisconsin. La Follette's years of public service were not without controversy. In 1917, he filibustered a bill to allow the arming of United States merchant ships in response to a series of German submarine attacks. His filibuster was successful in blocking passage of this bill in the closing hours of the 64th Congress. Soon after, La Follette was one of only six Senators who voted against U.S. entry into World War I. Fighting Bob was outspoken in his belief that the right to free speech did not end when war began. In the fall of 1917, La Follette gave a speech about the war in Minnesota, and he was misquoted in press reports as saying that he supported the sinking of the Lusitania. The Wisconsin State Legislature condemned his supposed statement as treason, and some of La Follette's Senate colleagues introduced a resolution to expel him. In response to this action, he delivered his seminal floor address, ``Free Speech in Wartime,'' on October 16, 1917. If you listen closely, you can almost hear his strong voice echoing through this Chamber as he said: Mr. President, our government, above all others, is founded on the right of the people freely to discuss all matters pertaining to their government, in war not less than in peace, for in this government, the people are the rulers in war no less than in peace. Of the expulsion petition filed against him, La Follette said: I am aware, Mr. President, that in pursuance of this general campaign of vilification and attempted intimidation, requests from various individuals and certain organizations have been submitted to the Senate for my expulsion from this body, and that such requests have been referred to and considered by one of the Committees of the Senate. If I alone had been made the victim of these attacks, I should not take one moment of the Senate's time for their consideration, and I believe that other Senators who have been unjustly and unfairly assailed, as I have been, hold the same attitude upon this that I do. Neither the clamor of the mob nor the voice of power will ever turn me by the breadth of a hair from the course I mark out for myself, guided by such knowledge as I can obtain and controlled and directed by a solemn conviction of right and duty. This powerful speech led to a Senate investigation of whether La Follette's conduct constituted treason. In 1919, following the end of World War I, the Senate dropped its investigation and reimbursed La Follette for the legal fees he incurred as a result of the expulsion petition and corresponding investigation. This incident is indicative of Fighting Bob's commitment to his ideals and of his tenacious spirit. La Follette died on June 18, 1925, in Washington, D.C., while serving Wisconsin in this body. His daughter noted, ``His passing was mysteriously peaceful for one who had stood so long on the battle line.'' Mourners visited the Wisconsin Capitol to view his body, and paid respects in a crowd nearing 50,000 people. La Follette's son, Robert M. La Follette, Jr., was appointed to his father's seat, and went on to be elected in his own right and to serve in this body for more than 20 years, following the progressive path blazed by his father. La Follette has been honored a number of times for his unwavering commitment to his ideals and for his service to the people of Wisconsin and of the United States. Recently, I was proud to support Senate passage of a bill introduced in the other body by Congresswoman Tammy Baldwin that will name the post office at 215 Martin Luther King, Jr., Boulevard in Madison in La Follette's honor. I commend Congresswoman Baldwin for her efforts to pass this bill. The Library of Congress recognized La Follette in 1985 by naming the Congressional Research Service reading room in the Madison Building in honor of both Fighting Bob and his son, Robert, Jr., for their shared commitment to the development of a legislative research service to support the United States Congress. In his autobiography, Fighting Bob noted that, as governor of Wisconsin, he ``made it a . . . policy to bring all the reserves of knowledge and inspiration of the university more fully to the service of the people. . . . Many of the university staff are now in state service, and a bureau of investigation and research established as a legislative reference library . . . has proved of the greatest assistance to the legislature in furnishing the latest and best thought of the advanced students of government in this and other countries.'' He went on to call this service ``a model which the federal government and ultimately every state in the union will follow.'' Thus, the legislative reference service that La Follette created in Madison served as the basis for his work to create the Congressional Research Service at the Library of Congress. The La Follette Reading Room was dedicated on March 5, 1985, the 100th anniversary of Fighting Bob being sworn in for his first term as a Member of Congress. Across this magnificent Capitol in National Statuary Hall, Fighting Bob is forever immortalized in white marble, still proudly representing the state of Wisconsin. His statue resides in the Old House Chamber, now known as National Statuary Hall, among those of other notable figures who have made their marks in American history. One of the few seated statues is that of Fighting Bob. Though he is sitting, he is shown with one foot forward, and one hand on the arm of his chair, as if he is about to leap to his feet and begin a robust speech. When then-Senator John F. Kennedy's five-member Special Committee on the Senate Reception Room chose La Follette as one of the ``Five Outstanding Senators'' whose portraits would hang outside of this Chamber in the Senate reception room, he was described as being a ``ceaseless battler for the underprivileged'' and a ``courageous independent.'' Today, his painting still hangs just outside this Chamber, where it bears witness to the proceedings of this body--and, perhaps, challenges his successors here to continue fighting for the social and government reforms he championed. To honor Robert M. La Follette, Sr., on the sesquicentennial of his birth, last week I introduced three pieces of legislation. I am pleased to be joined in this effort by the senior Senator from Wisconsin, Senator Kohl. The first is a resolution celebrating this event and recognizing the importance of La Follette's important contributions to the Progressive movement, the state of Wisconsin, and the United States of America. We also introduced a bill that would direct the Secretary of the Treasury to mint coins to commemorate Fighting Bob's life and legacy. Our third bill would authorize the President to posthumously award a gold medal on behalf of Congress to Robert M. La Follette, Sr. The minting of a commemorative coin and the awarding of the Congressional Gold Medal would be fitting tributes to the memory of Robert M. La Follette, Sr., and to his deeply held beliefs and long record of service to his state and to his country. I thank the chairman and ranking member of the Judiciary Committee for their assistance in passing our resolution honoring Fighting Bob today, on the 150th anniversary of his birth. And I thank my colleagues for honoring Robert M. La Follette, Sr.'s character, his integrity, his deep commitment to Progressive causes, and his unwillingness to waver from doing what he thought was right. No one has fought harder for the common man and woman, and against corruption and cronyism, than ``Fighting Bob'' La Follette, and I consider it a privilege to speak in the same Chamber, and serve the same great State, as he did.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, the Senate has accomplished some wonderful things for this country. But sometimes this body makes grave mistakes. Today, by passing the resolution apologizing to the victims of lynching, we acknowledge one of the gravest. The use of the filibuster and other dilatory tactics to prevent the enactment of a law criminalizing lynching is among the darkest chapters in the history of the U.S. Senate. This resolution is a small but important step toward helping us come to terms with the Senate's disgraceful failure over a period of many years, at the beginning of this century, to protect our citizens. I congratulate Senators Landrieu and Allen for their work to bring this resolution before the Senate. There are few crimes as despicable and contrary to the rule of law as lynching. The practice was born of hatred, racial or otherwise, and disdain for our criminal justice institutions. Unfortunately, lynching occurred throughout the United States, with cases documented in all but four states. From 1881 to 1964, there were 4,749 recorded victims of lynching. Of these victims, 3,452 were African Americans. Worse still, in nearly all cases of lynching before 1968, local and state law enforcement officials failed to investigate or prosecute the perpetrators. An anti-lynching law would have allowed Federal prosecutors to bring the perpetrators of lynching to justice. On three occasions, the House passed anti-lynching bills, but each time a small group of Senators filibustered the proposals in the Senate. Although a resolution cannot make up for the terrible injustice perpetrated against the victims of lynching and their families, this resolution is, at least, a positive step toward recognizing the Senate's past mistakes. There is much more that the Senate must do to address continuing racial injustice in this country. But this resolution is a worthy effort. I am proud to support it, and I am pleased that the Senate will pass it tonight.

Mr. FEINGOLD

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

Mr. FEINGOLD. Mr President, I will vote ``no'' on Justice Brown's nomination to the D.C. Circuit. Let me first remind my colleagues of the importance of this particular circuit in our judicial system. The D.C. Circuit is widely regarded as the most important Federal circuit. It has jurisdiction over the actions of most Federal agencies. Many of the highest profile cases that have been decided in recent years by the Supreme Court concerning regulation of economic activity by Federal agencies in areas such as the environment, health and safety regulation, and labor law, went first to the D.C. Circuit. In the area of administrative law and the interpretation of major regulatory statutes such as the Clean Air Act, the Clean Water Act, the Occupational Safety and Health Act, and the National Labor Relations Act, the D.C. Circuit is generally the last word, as the Supreme Court reviews only a tiny minority of circuit court decisions. The D.C. Circuit is now almost evenly split, and has been for some time, between nominees of Democratic and Republican Presidents. There are five judges who were appointed by Republicans, including John Roberts, who the Senate confirmed earlier this year, and four by Democrats, and there are three vacancies. President Clinton made two excellent nominations that were never acted upon by the Senate Judiciary Committee. In one case, the committee held a hearing but never scheduled a vote, and in another, that of now-Harvard Law School Dean Elena Kagan, the Clinton nominee was not even given the courtesy of a hearing. I want to express my great disappointment that the administration has not been willing to seek a compromise on the many vacancies that now exist on this court. By insisting on its often highly controversial choices for this circuit in particular, the administration has continued to push the Senate toward the ``nuclear'' confrontation that loomed over the Senate before the recess. Regrettably, President Bush is responsible for much of the ill will that has plagued this body for the past few years and the potentially disastrous upending of Senate precedents that we faced last month and may well see again. If only the President had really been a uniter and not a divider; if only he had truly tried to change the tone in Washington and repair some of the damage done to the nomination process by previous Congresses; if only he had not squandered the opportunity that the four vacancies on the D.C. Circuit as of his inauguration in 2001 presented, we would not be in this situation today. In light of this history and the importance of this Circuit, I believe it is my duty to give this nomination very close scrutiny. After reviewing this nominee's record and her testimony, I will vote ``no.'' I do not believe she is the right person at this time to be given a lifetime appointment to this important court. The fact that a majority of the Senate is apparently willing to confirm a nominee whose record so clearly demonstrates that she is not suited for such an important position is surprising and discouraging. I do not and will never apologize for supporting the filibuster to protect the Federal courts and the people of this country from her ideological, results- oriented judging. At her hearing, I asked Justice Brown about a case on age discrimination called Stevenson v. Superior Court. The majority in that case said that Ms. Stevenson's wrongful discharge violated a fundamental public policy against age discrimination. Justice Brown dissented, saying that the plaintiff had ``failed to establish that public policy against age discrimination . . . is fundamental and substantial.'' She went on: ``Discrimination based on age does not mark its victim with a stigma of inferiority and second class citizenship.'' These statements looked shocking when I read them, but I wanted to make sure I understood Justice Brown's views, so I gave her a chance to respond. I questioned her about the case in the Judiciary Committee, and concluded by asking if it was fair to say she believed age discrimination does not stigmatize senior citizens. She agreed that it was. I appreciate her candor, but I have to say I found that testimony very troubling. Senior citizens in this country live every day with the stigma of age discrimination; it is a real problem, and I think everyone here takes it very seriously. Just because we all will be old someday, and, therefore perhaps will be subject to prejudice and discrimination of this type, does not make it any less reprehensible. I have not heard anyone in the Senate trying to defend Justice Brown's view on this issue; nor do I expect to, because it is truly indefensible. I was also concerned by a comment Justice Brown made in 2000 about senior citizens. She said: ``Today senior citizens blithely cannibalize their grandchildren because they have a right to get as much free stuff as the political system will permit them to exact.'' When I asked her about this statement at her hearing, she made no effort to distance herself from it. Justice Brown seemed to suggest at her hearing that we should ignore her inflammatory speeches because she was just trying to be provocative in talking to audiences of youthful lawyers. She said that in her judging she is nonideological. The problem with that position is that the caustic style and even some of the extreme language she used in her speeches makes its way into her opinions. For example, in a 2000 speech entitled ``50 Ways To Lose Your Freedom'' in which Justice Brown suggests there may be some validity to the substantive due process theory of the Lochner case, she says the following: ``[I]f we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a kleptocracy--a license to steal, a warrant for oppression.'' That is a pretty provocative statement to be sure. In 2002, Justice Brown issued a scathing dissent in a zoning case called San Remo Hotel v. San Francisco. In that case, San Francisco had a requirement that when residential hotels were converted into daily hotels, the owners pay a fee to help the government pay for affordable housing that would make up for the housing that was lost in the conversion. This seems like a fairly mild requirement to me, and the majority of the court saw nothing wrong with it. But her dissent used very strong language to criticize the requirement. She said, in words that sounds an awful lot like her speech, that San Francisco was ``[t]urning a democracy into a kleptocracy.'' In case that was not strong enough, she added that the government had imposed a ``neo-feudal regime.'' Frankly, I had a hard time imagining a more extreme statement than that, but Justice Brown came up with one: ``But private property, already an endangered species in California, is now entirely extinct in San Francisco.'' (San Remo Hotel L.P. v. City and County of San Francisco, 27 Cal. 4th 643 (2002).) She continued to use this dissent to showcase her extreme views on the takings clause: ``Where once government was a necessary evil because it protected private property, now private property is a necessary evil because it funds government programs,'' she said. In her dissent, she argued that the zoning fee did not ``substantially advance legitimate government interests'' and therefore was ``obviously'' unconstitutional. Justice Brown's colleagues on the California Supreme Court rejected her analysis. They noted that Justice Brown's approach to takings law would open a Pandora's box of judicial activism, in that courts would have to examine the wisdom of a ``myriad government economic regulations, a task the courts have been loath to undertake pursuant to either the takings or due process clause.'' On May 23, 2005--just last month--the U.S. Supreme Court rejected the ``substantially advances'' test supported by Justice Brown in the San Remo case and affirmed that courts should not subject regulatory takings cases to heightened scrutiny. Other than Justice Kennedy's two paragraph concurrence, the entire court, including Justices Scalia and Thomas, unanimously agreed with Justice O'Connor's majority opinion in this case, Lingle v. Chevron (No. 04-163,--S. Ct.--, 2005 WL 1200710 (May 23, 2005).) The U.S. Supreme Court's critique of the district court in Lingle paralleled the San Remo majority's critique of Justice Brown's dissent. In Lingle, the Supreme Court addressed whether a Hawaiian regulation that prohibited oil companies from charging extraordinary rent to franchisees constituted a regulatory taking. The Supreme Court held that it did not, and the Court explicitly rejected the test Justice Brown used in her takings analysis. Like the majority in the San Remo opinion, the Court noted that if the ``substantially advances'' test were the law of the land: [I]t would require courts to scrutinize the efficacy of a vast array of State and Federal regulations--a task for which courts are not well suited. Moreover, it would empower--and might often require--courts to substitute their predictive judgments for those of elected legislatures and expert agencies. Although the instant case is only the tip of the proverbial iceberg, it foreshadows the hazards of placing courts in this role. . . . The Supreme Court rejected the district court's decision, and the view of the takings clause advanced by Justice Brown, because it would require that judges substitute their judgments for those of elected legislatures--something that many of Justice Brown's supporters have spoken out against on the Senate floor. As a former State legislator and now a Federal legislator, I appreciate and respect the Supreme Court's reluctance to endorse this activist view of regulatory takings law promoted by Justice Brown. Some in this body, including many who style themselves advocates of judicial restraint, would like to enact her views by legislation. They have every right to try to do so. I will fight them hard, and fortunately, so far, they have not been successful. But for them to support a judicial nominee who so clearly wants to use her power as a judge to promote such a radical view of the law is disappointing. Justice Brown's extreme comments in her opinions and speeches, and there are many, many such quotations that were discussed at her hearing, lead me to question whether she has the temperament to be a fair judge. Despite her testimony at the hearing that ``I am not an ideologue of any stripe,'' much of her record demonstrates the contrary. She seems to view the world through an ideological prism, and she expresses her views in the most divisive and striking language of any judicial nominee we have seen thus far. Referring to cases upholding President Franklin Roosevelt's New Deal legislation, for example, Justice Brown has said that ``1937 . . . marks the triumph of our own socialist revolution.'' She went on to say that ``In the New Deal/Great Society Era, a rule that was the polar opposite of American law reigned.'' At her hearing, Senator Durbin asked her about another speech, where she said that ``Protection of private property was a major casualty of the revolution of 1937.'' She said, ``I don't think that's at all controversial.'' The court to which Justice Brown has been nominated has a docket that is laden with challenges to government regulations and interpretations of Federal statutes dealing with economic regulation. I am not confident that Justice Brown will follow the law, rather than her personal views on the law, in hearing those cases. I have heard my colleagues argue that Justice Brown will follow the law faithfully on the court, that she will be constrained by precedent, but I simply do not find these assurances reassuring. As Justice Brown herself acknowledged in the Hughes Aircraft case, ``all judges `make law'.'' When they are faced with questions of first impression, they have no choice. And when they sit on a court of last resort, as Justice Brown does now, there is no one to stop them. Federal Courts of Appeals also often hear questions of first impression. And for all practical purposes, they are often courts of last resort, because the Supreme Court--again, an important point--reviews only a tiny percentage of their cases. So we must ask ourselves: How will Justice Brown use her enormous power as a Federal appellate judge when she has the opportunity to make new law? Justice Brown's record does not give me comfort in answering that question. Too often, she seems to adopt contrary theories of judging and even statutory interpretation depending on which outcome she favors. When the plaintiffs were victims of employment discrimination, she supported limits on punitive damages. (Lane v. Hughes Aircraft, Cal. 4th 405 (2000).) But when the plaintiffs were property owners prohibited from increasing rent in a mobile home park, she opposed any limit on damages. (Galland v. City of Clovis, 24 Cal. 4th 1003.) When the California Supreme Court ruled that juries must be given a certain instruction to protect criminal defendants, Justice Brown dissented because of her faith in juries: ``I would presume, as we do in virtually every other context, that jurors are `intelligent, capable of understanding instructions and applying them to the facts of the case.' '' (People v. Guiuan, 18 Cal. 4th 558 (1998).) But she suddenly stopped trusting juries when faced with the possibility that they might award punitive damages to employers found liable for racial discrimination, writing: ``When setting punitive damages, a jury does not have the perspective, and the resulting proportionality, that a court has after observing many trials.'' (Lane v. Hughes Aircraft, 22 Cal. 4th 405 (2000).) When property owners would benefit from a literal interpretation of a voter initiative, Justice Brown wrote: ``In my view the voters did not intend the courts to look any further than a standard dictionary in applying the terms. . . .'' (Apt. Ass'n of Los Angeles Cty. v. City of Los Angeles, 24 Cal. 4th 830 (Jan. 2000).) But only 11 months later, when those challenging an affirmative action program advocated a broad interpretation of a voter initiative, she had a different view. She said: ``We can discern and thereby effectuate the voters'' intention only by interpreting this language in a historical context.'' (Hi- Voltage v. City of San Jose, 24 Cal. 4th 537 (Nov. 2000).) When she wanted to limit the explicit right to privacy in the California Constitution, she argued: ``Where, as here, a state constitutional protection was modeled on a federal constitutional right, we should be extremely reticent to disregard U.S. Supreme Court precedent delineating the scope and contours of that right.'' (American Academy of Pediatricians v. Lungren, 16 Cal. 4th 307 (Aug. 1997).) But when the majority of her court relied on analysis from the United States Supreme Court on the question of remedies for a violation of constitutional rights, she said: ``Defaulting to the high court fundamentally disserves the independent force and effect of our Constitution. Rather than enrich the texture of our law, this reliance on federal precedent shortchanges future generations.'' (Katzburg v. Regents, 29 Cal 4th 300 (Nov. 2002).) I urge my colleagues to review these cases before voting on this nomination. These examples lead me to conclude that the jurisprudence of Justice Brown is a jurisprudence of convenience. She is skilled at finding a legal theory to support a desired result. I do not think that kind of approach to judging should be rewarded with an appointment to the second highest court in the land. This nominee has complained about ``militant judges'' while herself openly defying precedent when it suits her; she believes that the New Deal was a ``socialist revolution'' and that America's elderly ``cannibalize'' their grandchildren for handouts; she has expressed doubts about the application of the Bill of Rights to the States through the incorporation doctrine and has suggested a return to an era when the courts regularly overturned the judgment of legislatures on questions of economic regulation. Putting it simply, this nominee truly does have extreme views. To confirm her to a seat on the D.C. Circuit would be a grave mistake. So I cannot support this nominee, and I will vote ``no.'' I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent that Bharat Ramamurti, a legal intern with my Senate Judiciary staff, be granted the privileges of the floor during consideration of the Brown nomination.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to honor the extraordinary life of Robert M. La Follette Sr. Next week, on June 14th, people around my home State of Wisconsin will mark the 150th anniversary of La Follette's birth. Throughout his life, La Follette was revered for his tireless service to the people of Wisconsin and to the people of the United States. His dogged, full-steam-ahead approach to his life's work earned him the nickname ``Fighting Bob.'' Robert Marion La Follette, Sr., was born on June 14, 1855, in Primrose, a small town southwest of Madison in Dane County. He graduated from the University of Wisconsin Law School in 1879 and, after being admitted to the State bar, began his long career in public service as Dane County district attorney. La Follette was elected to the United States House of Representatives in 1884, and he served three terms as a member of that body, where he was a member of the Ways and Means Committee. After losing his campaign for reelection in 1890, La Follette returned to Wisconsin and continued to serve the people of my State as a judge. Upon his exit from Washington, DC, a reporter wrote, La Follette ``is popular at home, popular with his colleagues, and popular in the House. He is so good a fellow that even his enemies like him.'' He was elected the 20th Governor of Wisconsin in 1900. He served in that office until 1906, when he stepped down in order to serve the people of Wisconsin in the United States Senate, where he remained until his death in 1925. As a founder of the national progressive movement, La Follette championed progressive causes as governor of Wisconsin and in the U.S. Congress. As governor, he advanced an agenda that included the country's first workers compensation system, direct election of United States Senators, and railroad rate and tax reforms. Collectively, these reforms would become known as the ``Wisconsin Idea.'' As governor, La Follette also supported cooperation between the State and the University of Wisconsin. His terms in the House of Representatives and the Senate were spent fighting for women's rights, working to limit the power of monopolies, and opposing pork barrel legislation. La Follette also advocated electoral reforms, and he brought his support of the direct election of United States Senators to this body. His efforts were brought to fruition with the ratification of the Seventeenth Amendment in 1913. Fighting Bob also worked tirelessly to hold the government accountable, and was a key figure in exposing the Teapot Dome Scandal. La Follette earned the respect of such notable Americans as Frederick Douglass, Booker T. Washington and Harriet Tubman Upton for making civil rights one of his trademark issues. At a speech before the 1886 graduating class of Howard University, La Follette said, ``We are one people, one by truth, one almost by blood. Our lives run side by side, our ashes rest in the same soil. [Seize] the waiting world of opportunity. Separatism is snobbish stupidity, it is supreme folly, to talk of non-contact, or exclusion!'' La Follette ran for President three times, twice as a Republican and once on the Progressive ticket. In 1924, as the Progressive candidate for president, La Follette garnered more than 17 percent of the popular vote and carried the State of Wisconsin. La Follette's years of public service were not without controversy. In 1917, he filibustered a bill to allow the arming of United States merchant ships in response to a series of German submarine attacks. His filibuster was successful in blocking passage of this bill in the closing hours of the 64th Congress. Soon after, La Follette was one of only six Senators who voted against U.S. entry into World War I. Fighting Bob was outspoken in his belief that the right to free speech did not end when war began. In the fall of 1917, La Follette gave a speech about the war in Minnesota, and he was misquoted in press reports as saying that he supported the sinking of the Lusitania. The Wisconsin State Legislature condemned his supposed statement as treason, and some of La Follette's Senate colleagues introduced a resolution to expel him. In response to this action, he delivered his seminal floor address, ``Free Speech in Wartime,'' on October 16, 1917. If you listen closely, you can almost hear his strong voice echoing through this chamber as he said: ``Mr. President, our government, above all others, is founded on the right of the people freely to discuss all matters pertaining to their government, in war not less than in peace, for in this government, the people are the rulers in war no less than in peace.'' Of the expulsion petition filed against him, La Follette said: I am aware, Mr. President, that in pursuance of this general campaign of vilification and attempted intimidation, requests from various individuals and certain organizations have been submitted to the Senate for my expulsion from this body, and that such requests have been referred to and considered by one of the Committees of the Senate. If I alone had been made the victim of these attacks, I should not take one moment of the Senate's time for their consideration, and I believe that other Senators who have been unjustly and unfairly assailed, as I have been, hold the same attitude upon this that I do. Neither the clamor of the mob nor the voice of power will ever turn me by the breadth of a hair from the course I mark out for myself, guided by such knowledge as I can obtain and controlled and directed by a solemn conviction of right and duty.'' This powerful speech led to a Senate investigation of whether La Follette's conduct constituted treason. In 1919, following the end of World War I, the Senate dropped its investigation and reimbursed La Follette for the legal fees he incurred as a result of the expulsion petition and corresponding investigation. This incident is indicative of Fighting Bob's commitment to his ideals and of his tenacious spirit. La Follette died on June 18, 1925, in Washington, DC, while serving Wisconsin in this body. His daughter noted, ``His passing was mysteriously peaceful for one who had stood so long on the battle line.'' Mourners visited the Wisconsin Capitol to view his body, and paid respects in a crowd nearing 50,000 people. La Follette's son, Robert M. La Follette, Jr., was appointed to his father's seat, and went on to be elected in his own right and to serve in this body for more than 20 years, following the progressive path blazed by his father. La Follette has been honored a number of times for his unwavering commitment to his ideals and for his service to the people of Wisconsin and of the United States. Recently, I was proud to support Senate passage of a bill introduced in the other body by Congresswoman Tammy Baldwin that will name the post office at 215 Martin Luther King, Jr., Boulevard in Madison in La Follette's honor. I commend Congresswomen Baldwin for her efforts to pass this bill. The Library of Congress recognized La Follette in 1985 by naming the Congressional Research Service reading room in the Madison Building in honor of both Fighting Bob and his son, Robert M. La Follette, Jr., for their shared commitment to the development of a legislative research service to support the United States Congress. In his autobiography, Fighting Bob noted that, as governor of Wisconsin, he ``made it a . . . policy to bring all the reserves of knowledge and inspiration of the university more fully to the service of the people. . . . Many of the university staff are now in state service, and a bureau of investigation and research established as a legislative reference library . . . has proved of the greatest assistance to the legislature in furnishing the latest and best thought of the advanced students of government in this and other countries.'' He went on to call this service ``a model which the federal government and ultimately every state in the union will follow.'' Thus, the legislative reference service that La Follette created in Madison served as the basis for his work to create the Congressional Research Service at the Library of Congress. The La Follette Reading Room was dedicated on March 5, 1985, the 100th anniversary of Fighting Bob being sworn in for his first term as a Member of Congress. Across this magnificent Capitol in National Statuary Hall, Fighting Bob is forever immortalized in white marble, still proudly representing the State of Wisconsin. His statue resides in the Old House Chamber, now known as National Statuary Hall, among those of other notable figures who have made their marks in American history. One of the few seated statues is that of Fighting Bob. Though he is sitting, he is shown with one foot forward, and one hand on the arm of his chair, as if he is about to leap to his feet and begin a robust speech. When then-Senator John F. Kennedy's five-member Special Committee on the Senate Reception Room chose La Follette as one of the ``Five Outstanding Senators'' whose portraits would hang outside of this chamber in the Senate reception room, he was described as being a ``ceaseless battler for the underprivileged'' and a ``courageous independent.'' Today, his painting still hangs just outside this chamber, where it bears witness to the proceedings of this body--and, perhaps, challenges his successors here to continue fighting for the social and government reforms he championed. To honor Robert M. La Follette, Sr., on the sesquicentennial of his birth, today I am introducing three pieces of legislation. I am pleased to be joined in this effort by the senior Senator from Wisconsin, Senator Kohl. The first is a resolution celebrating this event and recognizing the importance of La Follette's important contributions to the Progressive movement, the State of Wisconsin, and the United States of America. I am also introducing a bill that would direct the Secretary of the Treasury to mint coins to commemorate Fighting Bob's life and legacy. The third bill that I am introducing today would authorize the President to posthumously award a gold medal on behalf of Congress to Robert M. La Follette, Sr. The minting of a commemorative coin and the awarding of the Congressional Gold Medal would be fitting tributes to the memory of Robert M. La Follette, Sr., and to his deeply held beliefs and long record of service to his State and to his country. I hope that my colleagues will support all three of these proposals. Let us never forget Robert M. La Follette, Sr.'s character, his integrity, his deep commitment to Progressive causes, and his unwillingness to waver from doing what he thought was right. The Senate has known no greater champion of the common man and woman, no greater enemy of corruption and cronyism, than ``Fighting Bob'' La Follette, and it is an honor to speak in the same chamber, and serve the same great State, as he did.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am pleased today to introduce the Federal Agency Data-Mining Reporting Act of 2005. I want to thank Senator Sununu for cosponsoring this bill. He has consistently been a leader on privacy issues, and I am very pleased to work with him on this effort. I also want to thank Senators Leahy, Akaka, Jeffords and Wyden for their support of the bill. The controversial data analysis technology known as data-mining is capable of reviewing millions of both public and private records on each and every American. The possibility of government law enforcement or intelligence agencies fishing for patterns of criminal or terrorist activity in these vast quantities of digital data raises serious privacy and civil liberties issues--not to mention questions about the effectiveness of these types of searches. But more than two years after Congress first learned about the Defense Department's program called Total Information Awareness, there is still much we do not know about the Federal government's other work on data-mining., We found out last year from a GAO report that there are 199 Federal data-mining programs, 122 of which rely on personal information and 29 of which are for the purpose of investigating terrorists or criminals, but we don't know the details of those programs. This is information we need to have. Congress should not be learning the details about data-mining programs after millions of dollars are spent testing or using data-mining against unsuspect- ing Americans. Coupled with the expanded domestic surveillance already undertaken by this Administration, the unchecked, secret use of data-mining technology threatens one of the most important values that we are fighting for as we combat terrorism--freedom. My bill would require all Federal agencies to report to Congress within 90 days and every year thereafter data-mining programs developed or used to find a pattern indicating terrorist or other criminal activity and how these programs implicate the civil liberties and privacy of all Americans. If necessary, information in the various reports could be classified. Let me clarify what this bill does not do. It does not have any effect on the government's use of commercial data to conduct individualized searches on people who are already suspects. It does not end funding for any program, determine the rules for use of data-mining technology, or threaten any ongoing investigation that uses data-mining technology. My bill would simply provide Congress with information about the nature of the technology and the data that will be used. The Federal Agency Data-Mining Reporting Act would require all government agencies to assess the efficacy of the data-mining technology and whether the technology can deliver on the promises of each program. In addition, my bill would make sure that Congress knows whether the Federal agencies using data-mining technology have considered and developed policies to protect the privacy and due process rights of individuals. With complete information about the current data-mining plans and practices of the Federal government, Congress will be able to conduct a thorough review of the costs and benefits of the practice of data- mining on a program-by-program basis and make considered judgments about which programs should go forward and which should not. Congress will also be able to evaluate whether new privacy rules are necessary. Data-mining could rely on a combination of intelligence data and personal information like individuals' traffic violations, credit card purchases, travel records, medical records, communications records, and virtually any information contained in commercial or public databases. Congress must conduct oversight to make sure that government agencies like the Department of Homeland Security, the Department of Justice, and the Department of Defense use these types of sensitive personal information appropriately. Furthermore, data-mining is unproven in this area. The government argues that data-mining can help locate potential terrorists before they strike. But we do not, today, have evidence that data-mining will prevent terrorism. In fact, some technology experts have warned that data-mining is not the right approach for the terrorism problem. The financial world has successfully used data-mining to identify people committing fraud because it has data on literally millions, if not billions, of historical financial transactions. And the banks and credit card companies know, in large part, which of those past transactions have turned out to be fraudulent. So when they apply sophisticated statistical algorithms to that massive amount of historical data, they are able to make a pretty good guess about what a fraudulent transaction might look like in the future. We do not have that kind of historical data about terrorists and sleeper cells. We have just a handful of individuals whose past actions can be analyzed, which makes it virtually impossible to apply the kind of advanced statistical analysis required to use data-mining in this way. That doesn't mean we should stop the Federal government from attempting to solve that problem, but it raises serious questions about whether data-mining will ever be able to locate an actual terrorist. Before the government starts reviewing personal information about every man, woman and child in this country, we should learn what data-mining can and can't do--and what limits and protections are needed. We must also bear in mind that there will inevitably be errors in the underlying data. Everyone knows people who have had errors on their credit reports--and that is the one area of commercial data where the law already imposes strict accuracy requirements. Other types of commercial data are likely to be even more inaccurate. Even if the technology itself were effective, I am very concerned that innocent people could be ensnared because of mistakes in the data that make them look suspicious. The recent rise in identity theft, which creates even more data accuracy problems, makes it even more important that we address this issue. Most Americans believe that their private lives should remain private. Data-mining programs run the risk of intruding into the lives of individuals who have nothing to do with terrorism or other criminal activity and understandably do not want their credit reports, shopping habits and doctor visits to become a part of a gigantic computerized search engine operating without any controls or oversight. The Administration should be required to report to Congress about the impact of the various data-mining programs now underway or being studied, and the impact those programs may have on our privacy and civil liberties, so that Congress can determine whether the proposed benefits of this practice come at too high a price to our privacy and personal liberties. I urge my colleagues to support this bill. All it asks for is information to which Congress and the American people are entitled. I ask unanimous consent that the text of this bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am pleased today to introduce the Federal Agency Data-Mining Reporting Act of 2005. I want to thank Senator Sununu for cosponsoring this bill. He has consistently been a leader on privacy issues, and I am very pleased to work with him on this effort. I also want to thank Senators Leahy, Akaka, Jeffords and Wyden for their support of the bill. The controversial data analysis technology known as data-mining is capable of reviewing millions of both public and private records on each and every American. The possibility of government law enforcement or intelligence agencies fishing for patterns of criminal or terrorist activity in these vast quantities of digital data raises serious privacy and civil liberties issues--not to mention questions about the effectiveness of these types of searches. But more than two years after Congress first learned about the Defense Department's program called Total Information Awareness, there is still much we do not know about the Federal government's other work on data-mining., We found out last year from a GAO report that there are 199 Federal data-mining programs, 122 of which rely on personal information and 29 of which are for the purpose of investigating terrorists or criminals, but we don't know the details of those programs. This is information we need to have. Congress should not be learning the details about data-mining programs after millions of dollars are spent testing or using data-mining against unsuspect- ing Americans. Coupled with the expanded domestic surveillance already undertaken by this Administration, the unchecked, secret use of data-mining technology threatens one of the most important values that we are fighting for as we combat terrorism--freedom. My bill would require all Federal agencies to report to Congress within 90 days and every year thereafter data-mining programs developed or used to find a pattern indicating terrorist or other criminal activity and how these programs implicate the civil liberties and privacy of all Americans. If necessary, information in the various reports could be classified. Let me clarify what this bill does not do. It does not have any effect on the government's use of commercial data to conduct individualized searches on people who are already suspects. It does not end funding for any program, determine the rules for use of data-mining technology, or threaten any ongoing investigation that uses data-mining technology. My bill would simply provide Congress with information about the nature of the technology and the data that will be used. The Federal Agency Data-Mining Reporting Act would require all government agencies to assess the efficacy of the data-mining technology and whether the technology can deliver on the promises of each program. In addition, my bill would make sure that Congress knows whether the Federal agencies using data-mining technology have considered and developed policies to protect the privacy and due process rights of individuals. With complete information about the current data-mining plans and practices of the Federal government, Congress will be able to conduct a thorough review of the costs and benefits of the practice of data- mining on a program-by-program basis and make considered judgments about which programs should go forward and which should not. Congress will also be able to evaluate whether new privacy rules are necessary. Data-mining could rely on a combination of intelligence data and personal information like individuals' traffic violations, credit card purchases, travel records, medical records, communications records, and virtually any information contained in commercial or public databases. Congress must conduct oversight to make sure that government agencies like the Department of Homeland Security, the Department of Justice, and the Department of Defense use these types of sensitive personal information appropriately. Furthermore, data-mining is unproven in this area. The government argues that data-mining can help locate potential terrorists before they strike. But we do not, today, have evidence that data-mining will prevent terrorism. In fact, some technology experts have warned that data-mining is not the right approach for the terrorism problem. The financial world has successfully used data-mining to identify people committing fraud because it has data on literally millions, if not billions, of historical financial transactions. And the banks and credit card companies know, in large part, which of those past transactions have turned out to be fraudulent. So when they apply sophisticated statistical algorithms to that massive amount of historical data, they are able to make a pretty good guess about what a fraudulent transaction might look like in the future. We do not have that kind of historical data about terrorists and sleeper cells. We have just a handful of individuals whose past actions can be analyzed, which makes it virtually impossible to apply the kind of advanced statistical analysis required to use data-mining in this way. That doesn't mean we should stop the Federal government from attempting to solve that problem, but it raises serious questions about whether data-mining will ever be able to locate an actual terrorist. Before the government starts reviewing personal information about every man, woman and child in this country, we should learn what data-mining can and can't do--and what limits and protections are needed. We must also bear in mind that there will inevitably be errors in the underlying data. Everyone knows people who have had errors on their credit reports--and that is the one area of commercial data where the law already imposes strict accuracy requirements. Other types of commercial data are likely to be even more inaccurate. Even if the technology itself were effective, I am very concerned that innocent people could be ensnared because of mistakes in the data that make them look suspicious. The recent rise in identity theft, which creates even more data accuracy problems, makes it even more important that we address this issue. Most Americans believe that their private lives should remain private. Data-mining programs run the risk of intruding into the lives of individuals who have nothing to do with terrorism or other criminal activity and understandably do not want their credit reports, shopping habits and doctor visits to become a part of a gigantic computerized search engine operating without any controls or oversight. The Administration should be required to report to Congress about the impact of the various data-mining programs now underway or being studied, and the impact those programs may have on our privacy and civil liberties, so that Congress can determine whether the proposed benefits of this practice come at too high a price to our privacy and personal liberties. I urge my colleagues to support this bill. All it asks for is information to which Congress and the American people are entitled. I ask unanimous consent that the text of this bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise to oppose the confirmation of John Bolton to be the next U.S. ambassador to the United Nations. I do not take this decision lightly. As the Senator from Virginia just pointed out, when Mr. Bolton's nomination was first announced, my vote was by no means a foregone conclusion. In fact, in 2001, when the Senate Foreign Relations Committee considered the nomination of Mr. Bolton to be the Under Secretary of State for Arms Control and International Security, I parted company from my Democratic colleagues on the committee to vote in favor of his nomination both in committee and on the floor. I did so because I generally believed, as the Senator from Virginia said, that the President has the right to choose executive branch nominees who share his overall world view, even when I do not share that world view. Barring serious ethical lapses or a clear lack of appropriate qualifications for a given job, I tend to give the President a great deal of latitude in making these appointments. But after examining the record, I have concluded that Mr. Bolton is fundamentally unsuited for the job to which he has been nominated. His blatant hostility toward the institution at which he would serve and his history of pursuing his personal policy agenda while holding public office lead me to question whether Mr. Bolton's appointment as our ambassador to the United Nations would serve the interests of the United States. I share the views of many who are insisting on reform at the U.N. The U.N. must become more effective and more accountable and, as stewards of the American taxpayers' dollars, we must insist on this point. But Mr. Bolton's record suggests that his personal animosity toward the United Nations is so great that he cannot effectively lead the charge for reforms that can make this vital, but deeply flawed, institution stronger and more effective. He seems to view the U.N. as an instrument to be used when it suits only our immediate interests but one best ignored or even undermined the rest of the time. His failure to grasp the give and take required for effective multilateralism makes him a real obstacle to any hope of pursuing vital long-term U.S. interests and increasing burden sharing and marshaling a global force strong enough to defeat the terrorist networks that seek to do us harm. Mr. Bolton's record also reveals many instances of intemperance and rash decisionmaking. At least two senior intelligence officials told committee staff that Bolton's draft testimony prepared for a House hearing on Syria in 2003 went well beyond what the intelligence community would clear or could clear. This wasn't a case in which State Department intelligence analysts alone had concerns about Bolton's proposed language. The CIA, the Department of Energy, and the Defense Intelligence Agency all objected. According to interviews conducted by the committee staff, Bolton's office pushed back, resisting the intelligence community's efforts to alter problematic provisions. Bolton was determined to be such a loose cannon that the Deputy Secretary of State instituted an extraordinary policy to address the problem, requiring all of Mr. Bolton's public presentations to be cleared by Larry Wilkerson, Secretary Powell's Chief of Staff, or Deputy Secretary Armitage himself. Regrettably, I do not have confidence that his personal agenda would always, as it must be, subordinated to that of the Secretary of State who, in testimony before this committee in her first days in office, has placed such a premium on restoring frayed diplomatic ties. In addition, information that came to light during the Senate Foreign Relation Committee's consideration of this nomination indicates that John Bolton has sought to punish intelligence analysts whose assessments did not support what Mr. Bolton wanted to say or wished to say. After all that has happened to our country's reputation and credibility in recent years, we cannot afford to tolerate, let alone promote, a policymaker who seeks to silence dissent from the intelligence community. What the committee found was not that Mr. Bolton made careless remarks in the heat of a tough bureaucratic dispute; the evidence shows that over a period of many months, Mr. Bolton repeatedly sought the removal of a respected intelligence analyst at the State Department who had raised concerns about language Mr. Bolton wished to use publicly, in the course of the standard clearance process, a process that is there to protect against misleading or inaccurate public characterizations of important security issues. And Mr. Bolton repeatedly sought the removal of the National Intelligence Officer for Latin America, again pursuing this vendetta for months, not heated minutes, and going so far as to consider blocking country clearance for Mr. Smith to travel abroad. In both cases, the offense that so incensed Mr. Bolton appears to be that the analysts did their jobs--they presented the facts as they saw them, and declined to keep silent when the facts did not support what Mr. Bolton wished to say. And in both cases, senior officials with decades of experience in government who were involved in these episodes told committee staff that Bolton's actions--his attempts to retaliate against these analysts--were absolutely extraordinary. In addition to these disturbing incidents, other interviews conducted by committee staff revealed a broader pattern of attempting to simply cut those who disagreed with his policy views, or those who he believed disagreed with his policy views, out of the policy-making process entirely. John Wolf, the former Assistant Secretary of State for Non- Proliferation, told committee staff that Bolton attempted to retaliate against at least two public servants in the non-proliferation bureau because of differences in their policy views. Mr. Bolton tried to remove a State Department attorney from a case relating to a sanctions issue because of perceived policy disagreements--the record suggests that Mr. Bolton actually misunderstood where the lawyer in question stood--and went so far as to suggest that he would not work with the State Department's entire legal bureau on the matter from that point on--a declaration quickly negated by Deputy Secretary Armitage, who felt compelled to remind Bolton that as a State Department official, he would indeed be working with the State Department's lawyers. This kind of tunnel-vision, everyone-else-out-of-the-room approach was summed up by Secretary of State Powell's Chief of Staff Larry Wilkerson, who told the committee staff, ``when people ignore diplomacy that is aimed at dealing with [North Korea's nuclear weapons development] in order to push their pet rocks in other areas, it bothers me, as a diplomat, and as a citizen of this country.'' When asked specifically if he thought that Mr. Bolton had done that, Wilkerson said, ``Absolutely.'' Mr. Wilkerson ended his interview with the committee with the following: I would like to make just one statement. I don't have a large problem with Under Secretary Bolton serving our country. My objections to what we've been talking about here--that is, him being our ambassador at the United Nations--stem from two basic things. One, I think he's a lousy leader. And there are 100 to 150 people up there that have to be led; they have to be led well, and they have to be led properly. And I think, in that capacity, if he goes up there, you'll see the proof of the pudding in a year. Second, I differ from a lot of people in Washington, both friend and foe of Under Secretary Bolton, as to his, ``brilliance''. I didn't see it. I saw a man who counted beans, who said, ``98 today, 99 tomorrow, 100 the next day,'' and had no willingness--and, in many cases, no capacity--to understand the other things that were happening around those beans. And that is just a recipe for problems at the United Nations. And that's the only reason that I said anything. Some have suggested that, because Mr. Bolton did not succeed in his attempts to end the careers of analysts whose dissenting views angered him, and because he did not succeed in his attempts to manipulate the government's processes to shut out voices of disagreement, caution, or dissent, there is no problem here. I cannot believe that any of my colleagues actually believes that is true--not after all that we have learned about the vital importance of dissent in the intelligence community from the 9/11 Commission, the Silberman-Robb Commission, and numerous other investigations into the major intelligence failures that have gravely harmed our credibility and our security over the past years. Why would we choose to promote to a position of prominence and trust an individual who has repeatedly tried to suppress inconvenient analysis? As the former Chairman of the National Intelligence Council told the committee staff, politicization ``even when it's successfully resisted, it doesn't mean that there hasn't been an effect, because it creates a climate of intimidation and a culture of conformity that is damaging.'' Carl Ford told this committee about his concerns of a ``chilling effect'' that Bolton's actions with regard to Mr. Westermann could have on all of the analysts in the department's intelligence analysis bureau. And Mr. Westermann told the committee staff that in the wake of his run in with Mr. Bolton, ``I was concerned that I had to spend time thinking about how I was approaching issues so that I didn't step on a landmine.'' Attempting to undermine important clearance processes, attempting to run roughshod over the safeguards in place to protect U.S. credibility, is an awfully big problem, whether or not the attempt was successful. It is, in my view, a disqualifying problem. Finally, Mr. President, I urge my colleagues to examine the record of the Foreign Relations Committee's consideration of this nomination. It raises very serious concerns regarding Mr. Bolton's understanding of his obligations to be forthcoming with this committee. Several of Mr. Bolton's answers to Senators' questions were misleading at best, and several were quite blatantly non-responsive. A number of these instances relate to Mr. Bolton's efforts to retaliate against intelligence analysts, and these are detailed in the minority report on this nominee. But others relate to more general foreign policy issues. The Bush administration's first Ambassador to South Korea, Tom Hubbard, was so troubled by Mr. Bolton's misleading characterization of Mr. Hubbard's role in approving a controversial speech that Mr. Bolton gave in Seoul that he felt obligated to contact the committee to correct the record. In light of the evidence this committee has seen in recent weeks, most of us can probably agree that if Mr. Bolton does end up being our next Ambassador to the UN, extremely careful oversight will be required. But our oversight responsibilities depend, in many instances, on the executive branch officials who come before us understanding that they have a constitutional obligation to be forthcoming with Congress. The record that he has amassed during this confirmation process gives me no confidence that Mr. Bolton intends to adhere to this obligation. Mr. Bolton's nomination raises fundamental questions regarding both credibility and accountability. The credibility of our representation at the UN, the credibility of intelligence, the credibility of the oversight process are at stake. And the question of whether or not this committee will hold officials who seek to suppress dissent accountable for their actions is before us today as well. I deeply appreciate the extraordinary courage of the many people who came forward to share with the Foreign Relations Committee their own concerns about Mr. Bolton's fitness for the UN post or to correct inaccuracies in the record--in some cases at real risk to their own careers. I am grateful for their efforts, and deeply appreciate their honesty. I hope that my colleagues will consider their words carefully. Their statements came at a price to them, and they should not be ignored. In contrast to these admirable public servants--many of whom, by the way, I would likely disagree with on any number of important policy issues--the administration has failed to be forthcoming in this process. Mr. President, I share the concerns that have been expressed by some of my colleagues on the Committee regarding the administration's failure to respond satisfactorily to requests for documents and information relating to this confirmation. The administration declined to produce requested documents and information, apparently because they do not believe the requested information is relevant. Quite frankly, that is not for the administration to determine. Not only does the administration's rationale fail to respect the Congress as a co-equal branch of Government, it also speaks of bad faith and contempt for the role of Congress in the confirmation process. Finally, Mr. President, during the committee's consideration of this nomination, Senator Sarbanes reminded all of us of the history of the position of the United States Ambassador to the United Nations. He listed the names of all 24 public servants who have held the office. Twenty-two of those twenty four were confirmed by unanimous consent, or with unanimous votes, or with voice votes. One was confirmed by a vote of 89 to 3. The most controversial Ambassador in our history was confirmed by a vote of 81-16. We have been represented by some very direct, opinionated, colorful characters at the United Nations. But we have never sent a figure so polarizing, or one with credibility so tattered, as the nominee before us today. John Bolton does not have the support of a single Democrat on the Senate Foreign Relations Committee. He does not have the support of a majority of that committee. I do not understand why the administration is insisting upon thrusting such a troubled nominee into such a sensitive and important post. From achieving real reform of the UN to rebuilding US credibility to creating a solid global coalition to combat terrorism, the stakes at the UN are as high as they have ever been. If the President had chosen a public servant of impeccable judgment, the committee and the Senate would have rallied around that selection, eager to work in partnership with a nominee capable of, and committed to, mending frayed relationships, encouraging real burden-sharing, and nurturing a strong international coalition to fight terrorism and the proliferation of weapons of mass destruction. John Bolton is not that nominee. I urge my colleagues to reject this nomination, and let us work together to quickly confirm a different nominee--one who represents the President's views but also has the skills, the record, and the confidence of the Senate required to be an effective ambassador. We can do, and we should do, much better than John Bolton. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I am introducing a measure aimed at curbing wasteful spending. In the face of our ever growing Federal deficit, we must prioritize and eliminate programs that can no longer be sustained with limited Federal dollars, or where a more cost- effective means of fulfilling those functions can be substituted. The measure that I introduce today establishes a means test for large agribusinesses receiving subsidized water from the Bureau of Reclamation. The irrigation means test provision is drawn from legislation that I have sponsored in previous Congresses to reduce the amount of Federal irrigation subsidies received by large agribusiness interests. I believe that reforming Federal water pricing policy by reducing subsidies is important as a means to achieve our broader objectives of achieving a truly balanced budget. This legislation is also needed to curb fundamental abuses of reclamation law that cost the taxpayer millions of dollars every year. In 1901, President Theodore Roosevelt proposed legislation, which came to be known as the Reclamation Act of 1902, to encourage development of family farms throughout the western United States. The idea was to provide needed water for areas that were otherwise dry and give small farms, those no larger than 160 acres, a chance, with a helping hand from the Federal Government, to establish themselves. According to a 1996 General Accounting Office report, since the passage of the Reclamation Act, the Federal Government has spent $21.8 billion to construct 133 water projects in the west to provide water for irrigation. Agribusinesses, and other project beneficiaries, are required under the law to repay to the Federal Government their allocated share of the costs of constructing these projects. As a result of the subsidized financing provided by the Federal Government, however, some of the beneficiaries of Federal water projects repay considerably less than their full share of these costs. According to the 1996 GAO report, agribusinesses generally receive the largest amount of federal financial assistance. Since the initiation of the irrigation program in 1902, construction costs associated with irrigation have been repaid without interest. The GAO further found, in reviewing the Bureau of Reclamation's financial reports, that $16.9 billion, or 78 percent, of the $21.8 billion of Federal investment in water projects is considered to be reimbursable. Of the reimbursable costs, the largest share, $7.1 billion, is allocated to irrigation interests. GAO also found that the Bureau of Reclamation will likely shift $3.4 billion of the debt owed by agribusinesses to other users of the water projects for repayment. There are several reasons why large agribusinesses continue to receive such significant subsidies. Under the Reclamation Reform Act of 1982, Congress acted to expand the size of the farms that could receive subsidized water from 160 acres to 960 acres. The RRA of 1982 expressly prohibits farms that exceed 960 acres in size from receiving federally subsidized water. These restrictions were added to the Reclamation law to close loopholes through which Federal subsidies were flowing to large agribusinesses rather than the small family farmers that Reclamation projects were designed to serve. Agribusinesses were expected to pay full cost for all water received on land in excess of their 960 acre entitlement. Despite the express mandate of Congress, regulations promulgated under the Reclamation Reform Act of 1982 have failed to keep big agricultural water users from receiving Federal subsidies. The General Accounting Office and the Inspector General of the Department of the Interior continue to find that the acreage limits established in law are circumvented through the creation of arrangements such as farming trusts. These trusts, which in total acreage well exceed the 960 acre limit, are comprised of smaller units that are not subject to the reclamation acreage cap. These smaller units are farmed under a single management agreement often through a combination of leasing and ownership. The Department of the Interior has acknowledged that these trusts exist. Interior published a final rulemaking in 1998 to require farm operators who provide services to more than 960 nonexempt acres westwide, held by a single trust or legal entity or any combination of trusts and legal entities, to submit RRA forms to the district(s) where such land is located. Water districts are now required to provide specific information about farm operators to Interior annually. This information is an important step toward enforcing the legislation that I am reintroducing today. A recent report by the Environmental Working Group examined water subsidies in the Central Valley Project (CVP) of California and it provides further evidence that this legislation is long overdue. According to EWG, in 2002, the largest 10 percent of the farms in the area got 67 percent of the water, for an average subsidy worth up to $349,000 each at market rates for replacement water. Twenty-seven large farms received subsidies each worth $1 million or more at market rates. Yet, the median subsidy for a Central Valley farmer in 2002 was $7,076 a year, almost 50 times less than the largest 10 percent of farms. One farm in Fresno County received more water by itself than 70 CVP water user districts. Its subsidy alone was worth $4.2 million a year at market rates. This analysis is significant because the Bureau of Reclamation program is supposed to help small farmers, not large agribusinesses. The CVP analysis is also important because CVP farmers get about one- fifth of all the water used in California, at rates that by any measure are far below market value. In 2002, for example, the average price for irrigation water from the CVP was less than 2 percent what Los Angeles residents pay for drinking water, one-tenth the estimated cost of replacement water supplies, and about one-eighth what the public pays to buy its own water back to restore the San Francisco Bay and Delta. Meanwhile, many citizens in living in the CVP do not have access to clean, safe drinking water. Unfortunately, this situation is pervasive in many other Western communities. My legislation combines various elements of proposals introduced by other members of Congress to close loopholes in the 1982 legislation and to impose a $500,000 means test. This new approach limits the amount of subsidized irrigation water delivered to any operation in excess of the 960 acre limit that claimed $500,000 or more in gross income, as reported on its most recent IRS tax form. If the $500,000 threshold were exceeded, an income ratio would be used to determine how much of the water should be delivered to the user at the full-cost rate, and how much at the below-cost rate. For example, if a 961 acre operation earned $1 million, a ratio of $500,000, the means-test value, divided by its gross income would determine the full cost rate. Thus the water user would pay the full cost rate on half of their acreage and the below-cost rate on the remaining half. This means-testing proposal was featured in the 2000 Green Scissors report. This report is compiled annually by Friends of the Earth and Taxpayers for Common Sense and supported by a number of environmental, consumer and taxpayer groups. The premise of the report is that there are a number of subsidies and projects that could be cut to both reduce the deficit and benefit the environment. The Green Scissors recommendation on means-testing water subsidies indicates that if a test is successful in reducing subsidy payments to the highest grossing 10 percent of farms, then the federal government would recover between $440 million and $1.1 billion per year, or at least $2.2 billion over 5 years. When countless Federal programs are subjected to various types of means tests to limit benefits to those who truly need assistance, it makes little sense to continue to allow large business interests to dip into a program intended to help small entities struggling to survive. Taxpayers have legitimate concerns when they learn that their hard- earned tax dollars are being expended to assist large corporate interests in select regions of the country, particularly in tight budgetary times. I urge Congress to act swiftly to save money for the taxpayers.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I am introducing a measure aimed at curbing wasteful spending. In the face of our ever growing Federal deficit, we must prioritize and eliminate programs that can no longer be sustained with limited Federal dollars, or where a more cost- effective means of fulfilling those functions can be substituted. The measure that I introduce today establishes a means test for large agribusinesses receiving subsidized water from the Bureau of Reclamation. The irrigation means test provision is drawn from legislation that I have sponsored in previous Congresses to reduce the amount of Federal irrigation subsidies received by large agribusiness interests. I believe that reforming Federal water pricing policy by reducing subsidies is important as a means to achieve our broader objectives of achieving a truly balanced budget. This legislation is also needed to curb fundamental abuses of reclamation law that cost the taxpayer millions of dollars every year. In 1901, President Theodore Roosevelt proposed legislation, which came to be known as the Reclamation Act of 1902, to encourage development of family farms throughout the western United States. The idea was to provide needed water for areas that were otherwise dry and give small farms, those no larger than 160 acres, a chance, with a helping hand from the Federal Government, to establish themselves. According to a 1996 General Accounting Office report, since the passage of the Reclamation Act, the Federal Government has spent $21.8 billion to construct 133 water projects in the west to provide water for irrigation. Agribusinesses, and other project beneficiaries, are required under the law to repay to the Federal Government their allocated share of the costs of constructing these projects. As a result of the subsidized financing provided by the Federal Government, however, some of the beneficiaries of Federal water projects repay considerably less than their full share of these costs. According to the 1996 GAO report, agribusinesses generally receive the largest amount of federal financial assistance. Since the initiation of the irrigation program in 1902, construction costs associated with irrigation have been repaid without interest. The GAO further found, in reviewing the Bureau of Reclamation's financial reports, that $16.9 billion, or 78 percent, of the $21.8 billion of Federal investment in water projects is considered to be reimbursable. Of the reimbursable costs, the largest share, $7.1 billion, is allocated to irrigation interests. GAO also found that the Bureau of Reclamation will likely shift $3.4 billion of the debt owed by agribusinesses to other users of the water projects for repayment. There are several reasons why large agribusinesses continue to receive such significant subsidies. Under the Reclamation Reform Act of 1982, Congress acted to expand the size of the farms that could receive subsidized water from 160 acres to 960 acres. The RRA of 1982 expressly prohibits farms that exceed 960 acres in size from receiving federally subsidized water. These restrictions were added to the Reclamation law to close loopholes through which Federal subsidies were flowing to large agribusinesses rather than the small family farmers that Reclamation projects were designed to serve. Agribusinesses were expected to pay full cost for all water received on land in excess of their 960 acre entitlement. Despite the express mandate of Congress, regulations promulgated under the Reclamation Reform Act of 1982 have failed to keep big agricultural water users from receiving Federal subsidies. The General Accounting Office and the Inspector General of the Department of the Interior continue to find that the acreage limits established in law are circumvented through the creation of arrangements such as farming trusts. These trusts, which in total acreage well exceed the 960 acre limit, are comprised of smaller units that are not subject to the reclamation acreage cap. These smaller units are farmed under a single management agreement often through a combination of leasing and ownership. The Department of the Interior has acknowledged that these trusts exist. Interior published a final rulemaking in 1998 to require farm operators who provide services to more than 960 nonexempt acres westwide, held by a single trust or legal entity or any combination of trusts and legal entities, to submit RRA forms to the district(s) where such land is located. Water districts are now required to provide specific information about farm operators to Interior annually. This information is an important step toward enforcing the legislation that I am reintroducing today. A recent report by the Environmental Working Group examined water subsidies in the Central Valley Project (CVP) of California and it provides further evidence that this legislation is long overdue. According to EWG, in 2002, the largest 10 percent of the farms in the area got 67 percent of the water, for an average subsidy worth up to $349,000 each at market rates for replacement water. Twenty-seven large farms received subsidies each worth $1 million or more at market rates. Yet, the median subsidy for a Central Valley farmer in 2002 was $7,076 a year, almost 50 times less than the largest 10 percent of farms. One farm in Fresno County received more water by itself than 70 CVP water user districts. Its subsidy alone was worth $4.2 million a year at market rates. This analysis is significant because the Bureau of Reclamation program is supposed to help small farmers, not large agribusinesses. The CVP analysis is also important because CVP farmers get about one- fifth of all the water used in California, at rates that by any measure are far below market value. In 2002, for example, the average price for irrigation water from the CVP was less than 2 percent what Los Angeles residents pay for drinking water, one-tenth the estimated cost of replacement water supplies, and about one-eighth what the public pays to buy its own water back to restore the San Francisco Bay and Delta. Meanwhile, many citizens in living in the CVP do not have access to clean, safe drinking water. Unfortunately, this situation is pervasive in many other Western communities. My legislation combines various elements of proposals introduced by other members of Congress to close loopholes in the 1982 legislation and to impose a $500,000 means test. This new approach limits the amount of subsidized irrigation water delivered to any operation in excess of the 960 acre limit that claimed $500,000 or more in gross income, as reported on its most recent IRS tax form. If the $500,000 threshold were exceeded, an income ratio would be used to determine how much of the water should be delivered to the user at the full-cost rate, and how much at the below-cost rate. For example, if a 961 acre operation earned $1 million, a ratio of $500,000, the means-test value, divided by its gross income would determine the full cost rate. Thus the water user would pay the full cost rate on half of their acreage and the below-cost rate on the remaining half. This means-testing proposal was featured in the 2000 Green Scissors report. This report is compiled annually by Friends of the Earth and Taxpayers for Common Sense and supported by a number of environmental, consumer and taxpayer groups. The premise of the report is that there are a number of subsidies and projects that could be cut to both reduce the deficit and benefit the environment. The Green Scissors recommendation on means-testing water subsidies indicates that if a test is successful in reducing subsidy payments to the highest grossing 10 percent of farms, then the federal government would recover between $440 million and $1.1 billion per year, or at least $2.2 billion over 5 years. When countless Federal programs are subjected to various types of means tests to limit benefits to those who truly need assistance, it makes little sense to continue to allow large business interests to dip into a program intended to help small entities struggling to survive. Taxpayers have legitimate concerns when they learn that their hard- earned tax dollars are being expended to assist large corporate interests in select regions of the country, particularly in tight budgetary times. I urge Congress to act swiftly to save money for the taxpayers.

Mr. FEINGOLD

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

Mr. FEINGOLD. Mr. President, I voted no on cloture, and I will vote no on the nomination of Priscilla Owen to be a judge on the U.S. Circuit Court of Appeals for the Fifth Circuit Court. I would like to take a few minutes today to explain my votes. I also would like to make a few comments on the events that led up to these votes. I strongly oppose the threat of the nuclear option. I believe this was an illegitimate tactic, a partisan abuse of power that was a threat to the Senate as an institution and to the country. Attempting to blackmail the minority into giving up their rights that have been part of the Senate's traditions and practices for centuries was a new low for a majority that has repeatedly been willing to put party over principle. Unfortunately, the blackmail was partially successful. While I do applaud the efforts of the Senators who worked hard to broker an agreement, the end result is that three nominees who do not deserve lifetime appointments to the judiciary will now be confirmed. The agreement reached by our colleagues states that filibusters should be reserved for extraordinary circumstances. For me, that has always been the test. I think Democrats have stuck to that standard in blocking just 10--just 10--out of the 218 nominations of President Bush that have been brought to the floor. A number of very conservative and very controversial nominees have been confirmed by the Senate. Jeffrey Sutton, now a judge on the Sixth Circuit, was confirmed by a vote of 52 to 41. No filibuster was used there. Jay Bybee, the author of the infamous torture memo, now sits on the Ninth Circuit. He was not filibustered. Michael McConnell, a very conservative and anti-choice law professor, often mentioned as a possible Supreme Court nominee, was confirmed for the Tenth Circuit. He was not filibustered. Dennis Shedd was confirmed to the Fourth Circuit by a vote of 55 to 44. He could have been filibustered, but he was not filibustered. The idea that the filibuster has been used over the past several years as a tool to block all the nominees that the minority opposed is ludicrous. There were, and there continue to be, very good reasons to block a certain small number of nominees. Nothing that occurred last night changed that one iota. I will continue to vote against cloture only in extraordinary circumstances. I did that when we voted on cloture on the Owen nomination in 2003 and each subsequent time, and I have done that again today. For the majority to have created this constitutional crisis over what came down to five nominees was wrong, was an abuse of power. The American people did not support it, and I do not think they will support it in the future. With respect to the Owen nomination, there are a number of factors that I believe require us to give this nomination very careful consideration. First, we should consider that judges on our courts of appeal have an enormous influence on the law. Whereas, decisions of the district courts are always subject to appellate review, the decisions of the courts of appeals are only subject to discretionary review by the Supreme Court. The decisions of the courts of appeal are, in almost all cases, final, as the Supreme Court agrees to hear only a very small percentage of the cases on which its views are sought. That means that the scrutiny we give to circuit court nominees must be greater than that we give to district court nominees. And then, of course, the scrutiny we give to Supreme Court nominees will even be greater. Another important consideration is the ideological balance of the Fifth Circuit. The Fifth Circuit is comprised of Texas, Louisiana, and Mississippi. The Fifth Circuit contains the highest percentage of minority residents, over 40 percent of any circuit other than the DC Circuit. It is a court that, during the civil rights era, issued some of the most significant decisions supporting the rights of African- American citizens to participate as full members of our society. As someone who believes strongly in freedom, liberty, and equal justice under law and the important role of the Federal courts to defend these fundamental American principles, I am especially concerned about the makeup of our circuit courts and their approaches to civil rights issues. Even after 8 years of a Democratic President, the Fifth Circuit had twice as many Republican appointees as Democratic appointees. That is because during the last 6 years of the Clinton administration, the Judiciary Committee did not report out a single judge to the Fifth Circuit Court of Appeals. As we all know, that was not for a lack of nominees to consider. President Clinton nominated three well-qualified lawyers to the Fifth Circuit--Jorge Rangel, Enrique Moreno, and Alston Johnson. None of these nominees even received a hearing before the committee. Then-Chairman Leahy held a hearing in July 2001 on the nomination of Judge Edith Brown Clement for a seat on the Fifth Circuit only a few months after she was nominated and less than 2 months after Democrats took control of the Senate. It was the first hearing in the Judiciary Committee for a Fifth Circuit nominee since September 1994. And Judge Clement, of course, was confirmed later in the year. The fact is, there is a history here and a special burden on President Bush to consult with our side on nominees for this circuit; otherwise, we will be simply rewarding the obstructionism that the President's party engaged in over the last 6 years of the Clinton administration by allowing him to fill, with his choices, seats that his party held open for years, even when qualified nominees were advanced by President Clinton. I say, once again, my colleagues on the Republican side bear some responsibility for this situation. There was a time when I thought they might help resolve it by urging the administration to address the Senate's failure to take up Clinton nominees. This entire controversy over judges that has come to a head over the last several weeks could have been avoided if our Republican colleagues had convinced the President to renominate even a few of those Clinton nominees who never received a hearing or vote in the committee, including nominees to the Fifth Circuit. But, of course, that did not happen. There was no effort to reach a real compromise to take into account the concerns of all parties. A compromise at the point of a gun is not a compromise. That, I'm afraid, is what we had last night. With that background, let me outline the concerns that have caused me to reach the conclusion that Justice Owen should not be confirmed. Justice Owen has had a successful legal career. She graduated at the top of her class from Baylor University Law School, worked as an associate and partner at the law firm of Andrews and Kurth in Houston, and has served on the Texas Supreme Court since January 1995. These are great accomplishments. But Justice Owen's record as a member of the Texas Supreme Court leads me to conclude that she is not the right person for a position on the Fifth Circuit. I am not convinced that Justice Owen will put aside her personal views and ensure that all litigants before her on the Fifth Circuit received a fair hearing. Her decisions in cases involving consumers' rights, worker's rights, and reproductive rights suggest that she would be unable to maintain an open mind and provide all litigants a fair and impartial hearing. Justice Owen has a disturbing record of consistently siding against consumers or victims of personal injury and in favor of business and insurance companies. When the Texas Supreme Court, which is a very conservative and pro- business court, rules in favor of consumers or victims of personal injury, Justice Owen frequently dissents. According to Texas Watch, during the period 1999 to 2002, Justice Owen dissented almost 40 percent of the time in cases in which a consumer prevailed. But in cases where the consumer position did not succeed, Justice Owen never dissented. At her first hearing, Senator Kennedy and then-Senator Edwards asked Justice Owen to cite cases in which she dissented from the majority and sided in favor of consumers. Justice Owen could cite only one case, Saenz v. Fidelity Guaranty Insurance Underwriters. But Justice Owen's opinion in this case hardly took a pro-consumer position since it still would have deprived the plaintiff of the entire jury verdict. She did not join Justice Spector's dissent, which would have upheld the jury verdict in favor of Ms. Saenz. Also during that first hearing, Senators Feinstein and Durbin questioned Justice Owen about Provident American Ins. Co. v. Castaneda. In that case, the plaintiff sought damages against a health insurer for denying health care benefits, after the insurer had already provided pre-operative approval for the surgery. Justice Owen, writing for the majority, reversed the jury's verdict in favor of the plaintiff and rejected the plaintiff's claim that the health insurer violated the Texas Insurance Code and the Deceptive Trade Practices Act. At the hearing, Justice Owen defended her opinion by saying that she believed that the plaintiff was seeking extra-contractual damages and that the plaintiff had already received full coverage under the policy and statutory penalties. But, in the words of her colleague, Justice Raul Gonzalez, who wrote a dissent, Justice Owen's opinion ``may very well eviscerate the bad-faith tort as a viable case of action in Texas.'' The cause of action for bad faith is designed to deter insurers from engaging in bad faith practices like denying coverage in the first place. In addition, with respect to several decisions involving interpretation and application of the Texas parental notification law, I am deeply troubled by Justice Owen's apparently ignoring the plain meaning of the statute and injecting her personal beliefs concerning abortion that have no basis in Texas or U.S. Supreme Court law. In 2000, the Texas legislature enacted a parental notification law that allows a minor to obtain an abortion without notification of her parents if she demonstrates to a court that she has complied with one of three ``judicial bypass'' provisions: (1) that she is ``mature and sufficiently well informed'' to make the decision without notification to either of her parents; (2) that notification would not be in her best interest; or (3) that notification may lead to her physical, sexual, or emotional abuse. During Justice Owen's first confirmation hearing, Senator Cantwell questioned Justice Owen about her positions in cases interpreting this law, focusing on Justice Owen's insistence in In re Jane Doe. In that case, a teenager is required to consider ``philosophic, social, moral, and religious'' arguments before seeking an abortion. In her opinion, Justice Owen cited the Supreme Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey to support her contention that States can require minors to consider religious views in their decision to have an abortion. But, as Senator Cantwell noted, Casey in no way authorizes States to require minors to consider religious arguments in their decision on whether to have an abortion. Upon this further questioning, Justice Owen then said that she was referring to another Supreme Court case, H.L. v. Matheson, even though her opinion only cited Casey for this proposition. And even Matheson does not say that minors can be required by State law to consider religious arguments. It is my view that Justice Owen was going beyond not only a plain reading of the Texas statute, but Supreme Court case law, and inappropriately injecting her own personal views to make it more difficult for a minor to comply with the statute and obtain an abortion. I was also not satisfied with Justice Owen's responses to my questions about bonuses to Texas Supreme Court law clerks. I asked her at the hearing whether she saw any ethical concerns with allowing law clerks to receive bonuses from their prospective employers during their clerkships. I also explored the topic further with her in followup written questions. Justice Owen stated repeatedly in her written responses to my questions that she is not aware of law clerks actually receiving bonuses while they were employed by the court. She reaffirmed that testimony in her second hearing. This seems implausble given the great amount of publicity given to Ian investigation pursued by the Travis County attorney of exactly that practice and the well publicized modifications to the Texas Supreme Court's rules that resulted from that investigation and the accompanying controversy. Even more disturbing, Justice Owen took the position, both at the first hearing and in her responses to written questions, that because the Texas Supreme Court Code of Conduct requires law clerks to recuse themselves from matters involving their prospective employers, there really is no ethical concern raised by law clerks accepting bonuses while employed with the court. I disagree. It is not sufficient for law clerks to recuse themselves from matters involving their prospective employers if they have received thousands of dollars in bonuses while they are working for the court. The appearance of impropriety and unfairness that such a situation creates is untenable. As I understand it, the Federal courts have long prohibited Federal law clerks both from receiving bonuses during their clerkships and from working on cases involving their prospective employers. I am pleased that the Texas Supreme Court finally recognized this ethical problem and changed its code of conduct for clerks. Justice Owen, in contrast, seems intent on defending the prior, indefensible, practice. Finally, I want to note the unusual nature of this particular nomination. Unlike so many nominees during the Clinton years, Justice Owen was considered in the Judiciary Committee under Senator Leahy's leadership in 2002. She had a hearing, and she had a vote. Her nomination was rejected. This has been the first time in history that a circuit nominee who was formally rejected by the committee, or the full Senate for that matter, has been renominated by the same President to the same position. I do not believe that defeated judicial nominations should be reconsidered like legislation that is not enacted. After all, legislation can be revisited after it is enacted. If Congress makes a mistake when it passes a law, it can fix that mistake in subsequent legislation. Let us all remember that judicial appointments are for life. Confirmations cannot be taken back or fixed. A vote to confirm a nominee is final. A vote to reject that nominee should be final as well. For the President to renominate a defeated nominee and the Senate to reconsider her simply because of the change of a few seats in an election cheapens the nomination process and the Senate's constitutional role in that process. I believe Justice Owen is bright and accomplished, but I sincerely believe that based on her judicial record, Justice Owen is not the right choice for this position.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent that Avery Wentzel, a legal intern on my Senate Judiciary Committee staff, be granted the privilege of the floor during the debate on Justice Owen.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent to speak such time as I may require.