Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I would like to call attention to a disease that currently affects the memories and functioning capacity of almost five million Americans, and that is Alzheimer's disease. In the next 50 years, it is estimated that over 16 million Americans will be diagnosed with Alzheimer's. I believe that we need to do more to understand this disease so that we can bring about effective treatments and preventive measures, and so that we can provide relief to those who care for individuals with Alzheimer's. Alzheimer's not only affects our Nation's physical health, it also negatively impacts family resources and our country's overall economic health. According to the Alzheimer's Association, our country spends over $100 billion annually in direct and indirect costs on caring for those with Alzheimer's. As our population ages, more and more Americans will suffer from this terrible disease. It is urgent that we bring more resources to bear to find effective treatments and, most of all, to find a cure. In recent years, medical researchers have made critical strides in Alzheimer's research. I believe that we need to continue to make biomedical research into Alzheimer's a national priority, and because of this I support the efforts of Senators Mikulski and Bond to provide $1.4 billion in Federal funding for Alzheimer's research. I have long advocated for more resources both for research into Alzheimer's and to help those who care for loved ones afflicted with the disease. I support S. 2533, the Ronald Reagan Alzheimer's Breakthrough Act, not only because it provides those resources, but because it provides hope to families that someday we will bring an end to this debilitating disease. The research currently being conducted at the National Institutes of Health holds much promise for identifying potential treatments and eventually, I hope, a cure for Alzheimer's. However we will not make the progress necessary to truly make breakthroughs with Alzheimer's unless we provide sufficient Federal funding for the research underway at NIH. As a strong proponent of fiscal discipline, I understand the current constraints on the Federal budget. However, I believe that providing resources to increase our Federal investment in Alzheimer's research and to offer caregiver support are critical budget priorities. It is my sincere hope that Congress passes the Ronald Reagan Alzheimer's Breakthrough Act before this session of Congress is over.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I want to add my thoughts to the debate on the Department of Homeland Security appropriations bill for fiscal year 2005. First, I want to preface my remarks by thanking the chairman and ranking member of the Homeland Security Appropriations Subcommittee for working so diligently on this bill despite the constraints they have faced. The fight against terrorism is our number one priority, and this appropriations bill is a key component in that fight. I also thank the Nation's first responders and the employees of the Department of Homeland Security, DHS, who work daily to protect this Nation. They are on the front lines of the fight against terrorism. They are the ones who are called on to stop and respond to any future attack upon our Nation. This bill includes important resources these brave men and women need to perform their critical tasks. The Senate bill is a vast improvement over the President's proposed budget. It increases funding for such important things as port security, FIRE Act grants, Federal air marshals, Emergency Management Performance Grants, and the SAFER program. The Senate bill also includes funding for research and development on next generation explosive detection equipment, a priority identified by the 9/11 Commission. These are just a few examples of the many areas where the Senate bill is far superior to the administration's request. I was also pleased that the Senate bill includes a number of amendments I sponsored. The Senate adopted my amendment requiring DHS to create a strategic transportation security plan and to base future transportation security budgets on that plan. This amendment will make sure that taxpayer dollars are spent efficiently and effectively to meet our Nation's most pressing transportation security needs, rather than the current well-intended but ad hoc method of spending. This amendment was based on one of the recommendations of the 9/11 Commission and, it is one of the first of the Commission's recommendations to be adopted by the Senate. The Senate also adopted my amendment to extend to the Department of Homeland Security for fiscal year 2005 a provision included in the fiscal year 2004 omnibus appropriations law that requires all departments and agencies to report to Congress on purchases of foreign- made goods. It is important that the government make every effort to purchase American-made goods and that it explain to the public whenever it fails to do so. I was also pleased that the Senate adopted my amendment requiring the Department of Homeland Security to report to Congress on its use of data-mining in fiscal year 2005. This amendment will provide the American people with critical information about the use of data-mining technology and the way highly personal information, like credit reports, travel records and other personal information, is obtained and used by our government. Periodically, after millions of dollars have been spent, we learn about a new data-mining program under development by the Federal Government. This amendment will not stop any data- mining. It simply requires the Department of Homeland Security to report to Congress on any data-mining programs it is using or developing and how these programs implicate the civil liberties and privacy of all Americans. With complete information, the American people will be able to make considered judgments about which programs should and should not go forward. Although this bill does a lot to help protect this Nation, including providing much-needed resources for our first responders, it does not do enough. I was disappointed that many good amendments were not adopted by the Senate. For example, an amendment offered by Senator Byrd, which I cosponsored, would have canceled purchases of oil to the Strategic Petroleum Reserve and directed the $470 million in savings to critical homeland security needs. Yet the Senate rejected this amendment even though it would have helped to ease gas prices by freeing more oil for the market and provided important funding for our homeland security programs. I also regret that this bill was so severely limited by a budget allocation that did not provide adequate funding for homeland security, choosing instead to make tax cuts its highest priority. That is why I supported several amendments that would have added funding for critical security needs. I want to point out to my colleagues that I do not take lightly my decision to vote in favor of spending more money. Fiscal responsibility is one of my highest priorities and I constantly look for ways to limit government spending. I am honored that the Concord Coalition and others have recognized me for my efforts in this regard. Although fiscal responsibility remains one of my top priorities, it is imperative that we provide the resources needed to combat terrorism. I voted for this bill because it provides necessary funding. However, our Nation's vulnerabilities demand more, and I will continue to work to ensure that our vital homeland security needs are met. intelligence reform

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, the amendment that I am offering today would require the Secretary of Homeland Security to submit to Congress a report on the amount of goods acquired by the Department during fiscal year 2005 that were made overseas. I want to thank the chairman and the ranking member of the subcommittee for working with me to include this important provision in the bill. My amendment would extend for another year with respect to the Department of Homeland Security a provision that was enacted as part of the fiscal year 2004 omnibus spending bill requiring all Federal departments and agencies to submit to Congress a report about goods that they purchase that are made outside of the United States. These reports will improve the disclosure of the amount of foreign-made goods purchased by the federal government. My amendment, like current law, requires that this report include the following information: (a) the dollar value of any articles, materials, or supplies purchased that are manufactured outside of the United States; (b) an itemized list of all waivers of the Buy American Act granted with respect to such articles, materials, or supplies, and (c) a summary of total procurement funds spent on goods manufactured in the United States versus funds spent on goods manufactured outside of the United States. The amendment also requires that the report be made publicly available to the maximum extent practicable. Prior to the enactment earlier this year of the Government-wide Buy American reporting requirement that I authored, only the Department of Defense was required to report annually on its use of waivers of domestic procurement laws. Last year, I introduced legislation to strengthen the Buy American Act of 1933, the statute that governs procurement by the Federal Government. The name of the Act accurately and succinctly describes its purpose: to ensure that the Federal Government supports domestic companies and domestic workers by buying American-made goods. One part of my bill would require that all Federal departments and agencies submit annual reports on their purchases. The amendment that I am offering today is based on that provision in my bill. The Buy American Act requires that the Federal Government support domestic businesses and domestic workers by buying American-made goods. I am pleased to note that the underlying bill includes language that states that none of the funds appropriated to the Department of Homeland Security may be used in contravention of the applicable provisions of the Buy American Act. It only makes sense that Federal departments and agencies be required to report to Congress on their compliance with Federal law and with congressional intent regarding this important matter. The American people deserve to know how their tax dollars are being spent, and to what extent these dollars are being used to support foreign jobs. I look forward to reviewing the fiscal year 2004 versions of these reports, and I am pleased that the managers have worked with me to extend the requirement for the Department of Homeland Security for fiscal year 2005. I will continue my efforts to ensure that this simple reporting requirement is made permanent for all Federal departments and agencies. Again, I thank the chairman and ranking member of the subcommittee for agreeing to accept my amendment, and I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I cannot let September 11 pass without reflecting on this painful anniversary, and heralding the strength of our Nation in the three years that have passed since that terrible day. Three years ago, a global network of terrorists attacked our country, taking the lives of nearly three thousand innocent men, women, and children. Today, we are still angered by the cruelty of these attacks. We are still awed by the courage of our first responders, and of the everyday Americans who were heroes on that day, whose acts of bravery and kindness were a source of solace for the Nation in the days after the attacks. Their strength became our strength, and with each passing day, and each passing year, our resolve to stop the forces of terror has only deepened. This month, as the Senate moves forward to address the critically important recommendations made by the 9/11 Commission, we mark the third year that has passed since the attacks. But this anniversary is not simply about the events of a single day. It is about our continued sadness and grief, and our overwhelming pride in the way our Nation responded to the tragic events of that day. It is also about the abiding strength of our convictions; our deep and profound commitment to fighting the forces of terror, to making our families safer, and to preserving the freedoms at the heart of our national character. We remember September 11 every day. On this anniversary, we simply share in that remembrance--both with other Americans, and with people around the world who stand with us in the fight against terrorism. Today I pay tribute to the lives we lost, and I honor the men and women across this country who give this Nation its greatest source of strength: our faith in our country, in our communities, and in each other.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, as the Senate returns from its August recess this week, students, teachers, and school personnel across Wisconsin and around the country are settling in for a new school year. Each new school year brings with it the promise of things to come. Students will embark on new educational paths, with new subjects and teachers and, in some instances, new classmates. Some students are entering school for the first time, while others are beginning their middle or high school careers. And some are embarking on their senior years in high school and are preparing to make the transition into the next phase of their lives. All of these students, and their parents, are facing new challenges and new opportunities. We owe it to them to provide the resources promised by the Federal Government to support our States and local school districts. Throughout our Nation's history, the education of our children has been viewed as a largely local and State responsibility, and the Federal Government has wisely left decisions affecting our children's day-to-day classroom experiences up to the schools, districts, school boards, and State education agencies that bear the responsibility for-- and most of the cost of--educating our children. Historically, when the Federal Government has stepped in, it has been to ensure that children receive an equal opportunity for a good education by protecting the rights of all children and by providing additional resources for schools and for such related activities as teacher training. Impact Aid, which was enacted in 1950 and is one of the oldest Federal education programs, helps local school districts to defray the costs of educating ``federally connected'' students, such as those who live on Federal land, which is not included in the local property tax base that funds elementary and secondary education. The National Defense Education Act of 1958, which was enacted in response to the Soviet launch of the Sputnik satellite, provided funding to improve math, science, and foreign language instruction in our elementary and secondary schools. The landmark Elementary and Secondary Education Act of 1965, of which the No Child Left Behind Act is the most recent reauthorization, provided funding to support the education of disadvantaged students. That same year, Congress enacted the Higher Education Act, which has helped to provide millions of Americans with the assistance they need to pursue post-secondary education. Also in 1965, the Office of Economic Opportunity created ``Project Head Start,'' the predecessor of the current Head Start program, which is administered by the Department of Health and Human Services. Since its inception, Head Start has improved opportunities for low-income preschool children and their families by providing a comprehensive approach to addressing the educational, nutritional, psychological, and other needs of these children and their families. The Individuals with Disabilities Education Act of 1975 mandates that a free appropriate public education be provided to all children and promises that the Federal Government will pay 40 percent of the cost of educating children with special needs. Our public schools' efforts to serve students with disabilities are a hallmark of our national commitment to a free public education for all children. Since IDEA was enacted, public schools have helped students with disabilities to become more self-sufficient, to prepare for employment, and to learn the skills they will need to lead productive lives. America's public schools have led the way toward the full integration of individuals with disabilities into our national life. The Federal Government has a long history of supporting local and State governments in their effort to provide a high quality public education for each child. I support these efforts, which rightly respect the importance of maintaining local control of education. For that reason, I opposed the No Child Left Behind Act, NCLB, which the President touts as one of his top domestic achievements. While I think we all agree that schools should be held accountable for results, I and many Wisconsinites oppose the testing-centered mandates in the NCLB. I support some aspects of this law, such as funding for reading education and after-school programs. I opposed this legislation, however, because it takes decisions regarding the frequency of testing out of the hands of local school districts and states and mandates that students be tested in reading and math in grades 3-8 beginning with the 2005-2006 school year. This top-down, one-size-fits-all approach to testing is not good for Wisconsin students or schools. Washington does not know best when it comes to making decisions such as this. And it is troubling that the results of these tests are central to determining whether a school, district, or State is considered to be ``in need of improvement'' or ``failing'' academically. It is also troubling that the corresponding Federal sanctions for schools deemed to be ``in need of improvement'' or ``failing'' will actually take badly needed money from those very schools. And these sanctions are being imposed despite the fact that the Federal Government has not provided the resources to help these school succeed that were promised by the No Child Left Behind Act. The President has called the No Child Left Behind Act ``the most important Federal education reform in history.'' I respectfully disagree with the President's assessment of this law, the effects of which are beginning to reverberate throughout Wisconsin and throughout the country. As I travel around Wisconsin each year to host listening sessions in each of our 72 counties, I hear time and again from frustrated teachers, administrators, parents, and others about the negative effect that NCLB is having on education in Wisconsin. I began to hear such comments more than three years ago when the President first proposed his education initiative, and this drumbeat of concern has increased as my constituents continue to learn first-hand what this new law means for them and for their students and children. While Wisconsinites support holding schools accountable for results, they are concerned about the focus on testing that is the centerpiece of the President's approach. In response to these concerns, I introduced with Senator Jeffords and others the Student Testing Flexibility Act, which would allow States and school districts that are meeting their adequate yearly progress, AYP, goals to waive the additional layer of testing required by NCLB, thus allowing them to maintain their existing testing programs. In addition, this bill would allow States to keep the Federal money allocated for developing and administering these new tests and to use that money to help those schools and districts that are not meeting their AYP goals. I am pleased that this legislation is supported by a wide range of Wisconsin and national education groups. In addition, earlier this year I sent with some of my colleagues a letter to the chairman and ranking member of the Health, Education, Labor, and Pensions Committee requesting that the committee have a series of hearings on how the ongoing implementation of the NCLB is affecting schools and districts. We asked that these hearings focus on issues that are being raised by our constituents, including: the unique circumstances of rural and smaller school districts; the long-term effects that meeting the one-size-fits-all AYP provisions will have on students, schools, and school districts; the concern and likelihood that nearly all public schools may not be able to meet the goal of 100 percent proficient scores on reading and math tests by the 2013-2014 school year, even if those schools show a steady increase in student achievement each year; the NCLB sanctions structure; the effect that Federal funding that is well below the agreed-upon authorization levels for crucial programs such as Title I and special education is having on schools' ability to meet NCLB and State standards; the need for additional Federal funding for professional development, recruitment and retention, and for additional training for paraprofessionals, so that States and school districts can comply with requirements for having highly qualified teachers and paraprofessionals; the toll that preparation for the new federally mandated tests is having on, and will have on, the ability of teachers to spend time on innovative and exciting approaches to instruction and assessment, the instruction time available for non-tested subjects, such as social studies, art, music, and physical education, the strength of State academic standards, and the morale of students and educators; the ongoing efforts to align the NCLB and IDEA; the unique challenges that the accountability provisions pose for students with limited English proficiency; and the implementation of the supplemental services provisions, including implications for Federal civil rights law. It is critically important that we understand the practical effect of the NCLB on the everyday classroom experiences of students and teachers. I have heard from many educators who are already seeing a narrowing of curricula and increased teaching to the test in preparation for the federally mandated tests in reading and math. One of the purposes of public education is to ensure that students have a well-rounded curriculum that gives them the skills that they need to succeed in life. I remain concerned that the approach encapsulated in the NCLB will produce a generation of students who know how to take tests, but who don't have the skills necessary to become successful adults. Test-taking has a place in public education, but it should not be the role of the Federal Government to tell schools how and when to require tests. As an editorial that appeared earlier this week in the Appleton Post- Crescent so correctly points out, ``the more testing schools must do, the more time is taken from education that doesn't involve passing a test. And the more testing schools have to do--in the name of no child being left behind--the greater the chance that your child could be left with a less complete education.'' And, I am particularly disturbed that this appears to be only the tip of the testing iceberg. The President has said that he plans to propose even more federally mandated testing if he is reelected. Specifically, the President said, ``[a]s we make progress, we will require a rigorous exam before graduation.'' If this proposal were to be enacted, it would mean that students would be taking federally mandated tests in 8 of their 13 years of their elementary and secondary years. And that's not just 8 tests. Beginning next year, students in grades 3-8 will take annual reading and math exams, which totals 12 tests over a student's career. In addition, the Federal Government requires that students be tested in reading and math in one high school grade, which is two more tests, for a total of 14. Beginning in the 2007-2008 school year, NCLB also requires that students be tested in science three times during their school careers (once in each of grades 3-5, 6-9, and 10- 12). That's three more tests, for a new total of 17 federally mandated tests. And if the President's new plan for a mandatory high school exit exam is enacted, you can add one more test, bringing the total to 18 federally mandated tests over 13 years of school. And this total does not include testing programs already in place at the State level, many of which have been thrown into disarray as States struggle to amend their existing tests to comply with the new NCLB requirements. Wisconsin currently tests students in reading in grade three through the Wisconsin Reading Comprehension Test, and in reading/ language arts, math, science, and social studies in grades four, eight, and ten with the Wisconsin Knowledge and Concepts Examinations. And this is in addition to regular classroom tests and quizzes and tests given at the district level by many of the 426 school districts in my state. And then, for those students hoping to go to college, there is the pre-SAT, the SAT, the ACT, and on and on. The Wisconsin Legislature enacted a requirement for a high school graduation test in 1997. But that test, which was to be required of all students beginning with those in the graduating class of 2003, was delayed for one year due to State budget constraints, and was subsequently delayed for an additional 2 years for that same reason, pushing the requirement from the class of 2003 to the class of 2006. Last year, as part of the State's 2004-2005 budget, the Wisconsin Legislature repealed the State graduation test, which many parents and educators in my State opposed and vigorously fought against for many years. Now it appears that the President wants to reinstate this requirement on the students of my State--and to impose it on the other 24 States that don't currently have such a test--over the will of the Wisconsin Legislature. And with States still unsure of the actual cost of the NCLB-mandated testing and little in the way of Federal funds to develop and implement it, another Federal testing requirement could bend the already dire budget situations in many States and school districts to the breaking point. According to a new report from the Center on Education Policy, CEP, 20 States now require high school exit exams, and another five will require such tests by 2009. I support the right of State legislatures and local school districts to determine the frequency with which students are tested, including whether to require a high school exit exam. When I was a member of the Wisconsin legislature, I supported legislation that created statewide tests for the students of my State. But I opposed the extra layer of federally mandated tests piled onto students and teachers with the enactment of the No Child Left Behind Act, and I will oppose any proposal for a federally mandated high school exit exam. Students, teachers, and schools are more than a test score, and education should be a well-rounded experience that is not narrowly focused on students passing a test to help their schools avoid being sanctioned by the Federal Government. Standardized tests measure where a particular student is at a particular day and time. These tests do not make allowances for outside factors such as test anxiety, illness, worry about a troubled home situation, or the fact that the child taking the test may not have eaten that day. To measure the performance of a school and its teachers and students on two test scores per grade does a disservice to these same students, teachers, and schools. I will continue to monitor the effect of the No Child Left Behind Act on Wisconsin students, and I hope that the debate on this law, both in my State and nationally, will result in meaningful changes to this deeply flawed law that will ensure that each child is given the opportunity to succeed and that each school has the resources necessary to give these students that opportunity. I ask unanimous consent to print the above-referenced editorial in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am pleased to introduce the Computer Trespass Clarification Act of 2004, which would amend and clarify section 217 of the USA-PATRIOT Act. Section 217 addresses the interception of computer trespass communications. This bill would modify existing law to more accurately reflect the intent of the provision, and also protect against invasions of privacy. Section 217 was designed to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking. The original Department of Justice draft of the bill that later became the PATRIOT Act included this provision. A section-by- section analysis provided by the Department on September 19, 2001, stated the following: Current law may not allow victims of computer trespassing to request law enforcement assistance in monitoring unauthorized attacks as they occur. Because service providers often lack the expertise, equipment, or financial resources required to monitor attacks themselves as permitted under current law, they often have no way to exercise their rights to protect themselves from unauthorized attackers. Moreover, such attackers can target critical infrastructures and engage in cyberterrorism. To correct this problem, and help to protect national security, the proposed amendments to the wiretap statute would allow victims of computer attacks to authorize persons ``acting under color of law'' to monitor trespassers on their computer systems in a narrow class of cases. I strongly supported the goal of giving computer system owners the ability to call in law enforcement to help defend themselves against hacking. Including such a provision in the PATRIOT Act made a lot of sense. Unfortunately, the drafters of the provision made it much broader than necessary, and refused to amend it at the time we debated the bill in 2001. As a result, the law now gives the government the authority to intercept communications by people using computers owned by others as long as they have allegedly engaged in some unauthorized activity on the computer, and the owner gives permission for the computer to be monitored. Only people who have a ``contractual relationship'' with the owner allowing the use of a computer are exempt from the definition of a computer trespasser under section 217 of the PATRIOT Act. Many people-- for example, college students, patrons of libraries, Internet cafes or airport business lounges, and guests at hotels--use computers owned by others with permission, but without a contractual relationship. They could end up being the subject of government snooping if the owner of the computer gives permission to law enforcement. My bill would clarify that someone who has been given permission to use a computer by the owner or operator of that computer is not a computer trespasser. It would bring the existing computer trespass provision in line with the purpose of section 217 as expressed in the Department of Justice's initial explanation of the provision. Section 217 was intended to target only a narrow class of people: unauthorized cyberhackers. It was not intended to give the government the opportunity to engage in widespread surveillance of computer users without a warrant. We don't know, of course, whether such surveillance is taking place. Unless criminal charges are brought against someone as a result of such surveillance, there would never be any notice at all that the surveillance has taken place. The computer owner authorizes the surveillance, and the FBI carries it out. There is no warrant, no court proceeding, no opportunity even for the subject of the surveillance to challenge the assertion of the computer owner that some unauthorized use of the computer has occurred. The Computer Trespass Clarification Act would modify the computer trespass provision to protect against abuse, while still maintaining its usefulness in cases of denial of service attacks and other forms of hacking. First, it would require that the owner or operator of the protected computer authorizing the interception has been subject to ``communications activity that threatens the integrity or operation of such computer.'' In other words, the owner has to be the target of some kind of hacking. Second, the bill would clarify that to be excluded from the definition of computer trespasser, a person who has permission to use a computer does not need to have a contractual relationship granting that permission. Third, the bill limits the length of warrant-less surveillance to 96 hours. This is twice as long as is allowed for an emergency wiretap. With four days of surveillance, it should not be difficult for the government to gather sufficient evidence of wrongdoing to obtain a warrant if continued surveillance is necessary. In addition, the bill would require the Attorney General to annually report on the use of Section 217 to the Senate and House Judiciary Committees. Section 217 is one of the provisions that is subject to the sunset provision in the PATRIOT Act and will expire at the end of 2005. We in the Congress need to do more oversight of the use of this and other provisions of the PATRIOT Act in order to evaluate their effectiveness. The computer trespass provision now in the law as a result of section 217 of the PATRIOT Act leaves open the possibility for significant and unnecessary invasions of privacy. The reasonable and modest changes to the provision contained in this bill preserve the usefulness of the provision for investigations of cyberhacking, but reduce the possibility of abuse. We must continually seek to balance the need for effective tools to fight crime and terrorism and the civil liberties of our citizens. The Computer Trespass Clarification Act strikes the right balance and I urge my colleagues to support it. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am pleased to introduce the Computer Trespass Clarification Act of 2004, which would amend and clarify section 217 of the USA-PATRIOT Act. Section 217 addresses the interception of computer trespass communications. This bill would modify existing law to more accurately reflect the intent of the provision, and also protect against invasions of privacy. Section 217 was designed to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking. The original Department of Justice draft of the bill that later became the PATRIOT Act included this provision. A section-by- section analysis provided by the Department on September 19, 2001, stated the following: Current law may not allow victims of computer trespassing to request law enforcement assistance in monitoring unauthorized attacks as they occur. Because service providers often lack the expertise, equipment, or financial resources required to monitor attacks themselves as permitted under current law, they often have no way to exercise their rights to protect themselves from unauthorized attackers. Moreover, such attackers can target critical infrastructures and engage in cyberterrorism. To correct this problem, and help to protect national security, the proposed amendments to the wiretap statute would allow victims of computer attacks to authorize persons ``acting under color of law'' to monitor trespassers on their computer systems in a narrow class of cases. I strongly supported the goal of giving computer system owners the ability to call in law enforcement to help defend themselves against hacking. Including such a provision in the PATRIOT Act made a lot of sense. Unfortunately, the drafters of the provision made it much broader than necessary, and refused to amend it at the time we debated the bill in 2001. As a result, the law now gives the government the authority to intercept communications by people using computers owned by others as long as they have allegedly engaged in some unauthorized activity on the computer, and the owner gives permission for the computer to be monitored. Only people who have a ``contractual relationship'' with the owner allowing the use of a computer are exempt from the definition of a computer trespasser under section 217 of the PATRIOT Act. Many people-- for example, college students, patrons of libraries, Internet cafes or airport business lounges, and guests at hotels--use computers owned by others with permission, but without a contractual relationship. They could end up being the subject of government snooping if the owner of the computer gives permission to law enforcement. My bill would clarify that someone who has been given permission to use a computer by the owner or operator of that computer is not a computer trespasser. It would bring the existing computer trespass provision in line with the purpose of section 217 as expressed in the Department of Justice's initial explanation of the provision. Section 217 was intended to target only a narrow class of people: unauthorized cyberhackers. It was not intended to give the government the opportunity to engage in widespread surveillance of computer users without a warrant. We don't know, of course, whether such surveillance is taking place. Unless criminal charges are brought against someone as a result of such surveillance, there would never be any notice at all that the surveillance has taken place. The computer owner authorizes the surveillance, and the FBI carries it out. There is no warrant, no court proceeding, no opportunity even for the subject of the surveillance to challenge the assertion of the computer owner that some unauthorized use of the computer has occurred. The Computer Trespass Clarification Act would modify the computer trespass provision to protect against abuse, while still maintaining its usefulness in cases of denial of service attacks and other forms of hacking. First, it would require that the owner or operator of the protected computer authorizing the interception has been subject to ``communications activity that threatens the integrity or operation of such computer.'' In other words, the owner has to be the target of some kind of hacking. Second, the bill would clarify that to be excluded from the definition of computer trespasser, a person who has permission to use a computer does not need to have a contractual relationship granting that permission. Third, the bill limits the length of warrant-less surveillance to 96 hours. This is twice as long as is allowed for an emergency wiretap. With four days of surveillance, it should not be difficult for the government to gather sufficient evidence of wrongdoing to obtain a warrant if continued surveillance is necessary. In addition, the bill would require the Attorney General to annually report on the use of Section 217 to the Senate and House Judiciary Committees. Section 217 is one of the provisions that is subject to the sunset provision in the PATRIOT Act and will expire at the end of 2005. We in the Congress need to do more oversight of the use of this and other provisions of the PATRIOT Act in order to evaluate their effectiveness. The computer trespass provision now in the law as a result of section 217 of the PATRIOT Act leaves open the possibility for significant and unnecessary invasions of privacy. The reasonable and modest changes to the provision contained in this bill preserve the usefulness of the provision for investigations of cyberhacking, but reduce the possibility of abuse. We must continually seek to balance the need for effective tools to fight crime and terrorism and the civil liberties of our citizens. The Computer Trespass Clarification Act strikes the right balance and I urge my colleagues to support it. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I am sure that my colleagues will join me in congratulating the American athletes who competed in the 2004 Olympic Games in Athens, Greece. The Olympics have a rich history, with records dating the first Olympic Games to 776 B.C. in Olympia, Greece. The early athletic contests allowed youths to highlight their physical prowess, with victory reflecting well upon the competitor's home city. The modern Olympic Games have endured for over a century, through times of war and peace, and this year, the Olympics returned to its origins. The symbols of the Games--the motto, the flames, the rings--carry important meanings. The Olympic motto ``citius--altius--fortius'', which is Latin for ``faster--higher--stronger'' encourages all to strive to achieve their personal best. The Olympic flame, lit by the sun's rays in Olympia and passed around the world, burns bright while the competitions continue. The five Olympic rings represent the five continents, interwoven to demonstrate the universality of the Games. Being an Olympian is a tremendous honor, and I commend the many athletes who represented our Nation well. America's 2004 Olympians are some of the finest athletes in the world. Dedicated to their sport, these individuals often devote years of their lives to training for the ultimate experience of competing in the Olympics. All competed well, and their hard efforts were rewarded as a remarkable 103 medals were earned by Americans in Athens. I would like to particularly recognize the Olympians from my home State of Wisconsin. Fifteen athletes competing in the 2004 Olympic games have ties to Wisconsin, and I am proud of their efforts. These 15 athletes traveled to Athens to compete in a variety of sporting events, events that ranged from rowing to gymnastics to the modern pentathlon. It is my honor to recognize these fine competitors from Wisconsin: Chris Ahrens. A graduate of Whitefish Bay High School and two-time Olympian, Chris earned a gold medal this year as a member of the men's eight rowing team. Deirdre Demet-Barry. A seven-time national cycling champion originally from Milwaukee, Deirdre competed in women's cycling while in Athens. Rebecca Giddens. A kayaker since age 10, this Green Bay native earned the bronze medal in the women's K1 flat kayak slalom. James Gruenwald. Originally hailing from Greendale, James competed in his second Olympics in the men's Greco-Roman wrestling competition. Dennis Hall. A proud cheesehead and Plover resident, Dennis competed in the men's Greco-Roman wrestling for his third Olympics. Paul Hamm. A native of Waukesha, Paul won gold and silver medals in men's gymnastics events in his second Olympic Games. Morgan Hamm. As a member of the U.S. men's gymnastics team, this Waukesha native helped lead the team to a silver medal. Ben Holbrook. Ben is originally from Hartland and competed in the Men's quadruple sculls rowing competition in Athens. Beau Hoopman. Raised in Plymouth, Beau rowed at the University of Wisconsin and won a gold medal in Athens with the men's eight rowing team.. Mary Beth Larsen-Iagorashvili. A graduate of Mukwonago High School who attended Marquette University, Mary Beth competed in the women's modern pentathlon. Garrett Lowney. Athens was the second Olympic Games at which this Freedom resident competed in men's Greco-Roman wrestling. Erin Mirabella. Erin, a native of Racine and former student at UW- Parkside, won the bronze medal for her performance in women's track cycling. Jeff Nygaard. Jeff showed his Wisconsin roots when he named Brett Favre as a favorite athlete. From Madison, Jeff competed in men's beach volleyball. Andrew Rock. A student at UW-La Crosse, Andrew won a gold medal as a member of the men's 1,600 meter relay in Athens. Matt Smith. A graduate of the University of Wisconsin, Matt currently serves our country as an infantry captain for the U.S. Army. He competed as a rower in the men's lightweight four. Neil Walker. A swimmer originally from Verona, Neil earned two Olympic medals--a bronze in the men's 4 x 100 freestyle relay and a gold medal in the men's 4 x 100 medley relay. Mike Wherley. A Sun Prairie High School graduate, Mike rowed in his first Olympics with the men's four in Athens. I offer my congratulations to these athletes. They demonstrated great passion and dedication to their sport and to the spirit of the Olympics. They made Wisconsin proud.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise to join my colleagues in expressing my continued grave concern about the situation in Darfur, Sudan. For months now, Members of Congress have come to the floor to express their outrage at the situation in Darfur. All credible evidence indicates that what is unfolding in Darfur is genocide. Already, an estimated 30,000 civilians have been killed. More than 130,000 refugees have fled to Chad, and more than 1 million people have been displaced. Numerous credible reports document the widespread use of rape as a weapon against female civilians. Entire communities have been razed, mosques destroyed, and wells poisoned, guaranteeing that a grave humanitarian crisis will continue to unfold for many months or even years. And now reports indicate that terrified survivors are being forced to return to their homes, which have been utterly destroyed, in a context of serious insecurity by Government officials who apparently view their own suffering citizens as something like a source of embarrassment. Those of us who have followed developments in Sudan for many years see a horrifying familiarity in this crisis. The Government of Sudan has deliberately provoked a humanitarian catastrophe before in an attempt to repress dissent, and so for months now Members have come to the floor to speak out about this crisis. I have written and spoken to administration officials, to U.N. officials, and to European officials to call for action and a firm unified message to Khartoum. I have raised the issue, as have many colleagues, in numerous Senate Foreign Relations Committee hearings. This April, my colleague, Senator Brownback, and I introduced S. Con. Res. 99 condemning the actions of the Sudanese Government. I have joined many of my colleagues in supporting Senator DeWine's effort to direct urgently needed funds to Darfur for humanitarian relief, and I am a cosponsor of S. Con. Res. 124 acknowledging the genocide that is unfolding in Darfur, and I commend the leadership of Senators Corzine and Brownback, the sponsors of this legislation. This is a tremendously difficult and complex situation. I commend the Secretary of State for traveling to Darfur to raise the profile on this issue. I commend the efforts of the USAID to respond to the urgent humanitarian needs in CHAD and IDPs in Darfur. The administration can and must do more. First, the President needs to put in charge a senior official who can speak authoritatively to Khartoum and to key regional players, someone who is focused on Sudan exclusively each and every day. It is almost inexplicable that this has not been done to date. Since our former colleague, Senator Jack Danforth, left his post as the President's special envoy for Sudan to serve as U.S. Ambassador to the United Nations, it appears that no one has been in charge of this issue on a day-to-day basis while this genocide unfolds. What kind of signal does this send about our seriousness? We need someone senior, with knowledge of the African and Arab worlds, put in place today to coordinate U.S. policy and deliver authoritative U.S. messages on a daily basis, to seize on fleeting opportunities, eliminate any confusion, match available resources with urgent needs, and constantly hold the Sudan Government's feet to the fire. We also need serious thinking today about how to improve the security situation in Darfur. To date, the Government of Sudan has utterly failed to honor its commitments to disarm the janjaweed and to stop their brutal campaign. Our strategy cannot simply consist of waiting for them to act. This is the same regime that orchestrated this misery in the first place. We cannot leave them in the driver's seat. So even as we push diplomatically for meaningful action from Khartoum, even as we do the hard work of building a strong, unified multilateral coalition to send a clear message about the serious consequences that will result from continued intransigence, we must develop plans to help people in spite of the Government of Sudan's policies. That means finding a way to provide security for Darfur's vulnerable populations and for the humanitarian organizations working to assist them. We need to be working now to collect testimony and evidence so that those responsible for atrocities in Darfur can be held accountable for their crimes. This must not be an afterthought. It is a central part of our obligation. And in addition to appropriately and sensitively collecting testimony, we should be making plans today to develop strategies to reach the survivors of rape in Darfur with medical assistance, counseling, and community-based support strategies to help address issues of stigma. Ultimately, we need to think about underlying issues of political disenfranchisement that stoked the initial conflict in Darfur. The North-South peace process made real progress, and I applaud the efforts of the many African, European, and American diplomats who worked so hard to help the parties come to agreement. But the process only created real political space for two entities, the Government of Sudan and the Sudanese People's Liberation Movement of the South. Neither the South nor the North are monolithic. We need to think today about political accommodations that can give the disenfranchised a voice in determining their own destiny. I share the outrage of my colleagues. But I know that the people of Darfur--the malnourished children, the victims of rape, the broken families struggling to survive--this people need more than our outrage. They need our action. I yield the floor. I suggest the absence of a quorum.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded and I be permitted to speak as in morning business.

Mr. FEINGOLD

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

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, when major and hard-fought legislation nears enactment, the rhetoric on this floor can get a little overheated. Supporters of the measure sometimes overstate the importance of the legislation or exaggerate its benefits. Opponents make doomsday predictions of what will happen if the bill becomes law. Only the passage of time can answer those arguments, but by the time that answers are available, the Senate has often has moved on to other battles. Today, I want to take a few minutes on the floor to call the attention of my colleagues and the American people to some promising indications that the doomsday predictions of opponents of the McCain- Feingold bill have not come to pass. As we told the Senate at the time, McCain-Feingold will not solve every problem in our campaign finance system, and it hasn't. Lately, there has been significant controversy over so-called ``527 organizations,'' which the FEC has permitted to operate in violation, I believe, of the Federal Election Campaign Act of 1974. Nonetheless, McCain-Feingold is working as it was intended to work. It closed the political party soft money loophole, and it has restored some sanity to a system that had truly spun out of control over the last several elections. While it is still too early to reach a final conclusion, it appears that the cynics and the doubters were wrong. And that is good news for the American people. When the Senate considered the McCain-Feingold bill in March 2001, we had just finished a hotly contested Presidential election in 2000. Nearly $500 million of soft money was raised in that election by the two political parties, almost double what was raised in the 1996 election. Nearly two-thirds of that total was given by just 800 donors, who contributed over $120,000 each to the parties. The biggest donors contributed far more than that. The most generous soft money donor, AFSCME, gave almost $6 million, all to the Democratic party. SEIU gave a total of $4.3 million, mostly to the Democrats. AT&T gave a total of $3.7 million to the parties, the Carpenters and Joiners Union $2.9 million, Freddie Mac and Philip Morris, $2.4 million. Then we had the ``double givers''--companies that gave money to both parties. In 2000, there were 146 donors that gave over $100,000 in soft money to both of the political parties. The appearance of corruption created by this avalanche of soft money was overwhelming. The public knew it; and we all knew it in our hearts. And the Supreme Court knew it when it upheld the McCain-Feingold bill against constitutional challenge in the case of McConnell v. FEC. The Court stated the following: As the record demonstrates, it is the manner in which parties have sold access to federal candidates and officeholders that has given rise to the appearance of undue influence. Implicit (and, as the record shows, sometimes explicit) in the sale of access is the suggestion that money buys influence. It is no surprise then that purchasers of such access unabashedly admit that they are seeking to purchase just such influence. It was not unwarranted for Congress to conclude that the selling of access gives rise to the appearance of corruption. In this election cycle, I am happy to report, political party soft money is no more. Not reduced, not held in check, not capped--it is just gone. I consider this one of the most significant developments in American politics in the last 50 years. In 2002, a colleague told me on this floor that he had just finished making an hour of calls asking for large soft money contributions. He said he felt like taking a shower. Now, many of my colleagues, including some who did not support our bill, tell me how happy they are to not have to make those calls any more. That's a huge change in how we spend our time, and how we relate to people who have a big stake in what we do on this floor. But what about the political parties? When we were debating McCain- Feingold, we had a real difference of opinion on how the bill would affect the parties. On one side were Senators who argued passionately that the bill would kill the political parties. One Senator said the following during our debate: This legislation seeks, quite literally, to eliminate any prominence for the role of political parties in American elections. This legislation favors special interests over parties and favors some special interests over other special interests. Equally remarkable is the patchwork manner in which this legislation achieves its virtual elimination of political parties from the electoral process. The same Senator claimed: But under this bill, I promise you, if McCain-Feingold becomes law, there won't be one penny less spent on politics--not a penny less. In fact, a good deal more will be spent on politics. It just won't be spent by the parties. Even with the increase in hard money, which I think is a good idea and I voted for, there is no way that will ever make up for the soft dollars lost. There isn't any way, he said, that they will ever make up for the soft dollars lost. Twenty months after the McCain-Feingold bill went into effect as the law of the land, our two great political parties are alive and well. Apparently they do have something to offer to the American people other than fundraisers for lobbyists. A new study by Anthony Corrado and Tom Mann of the Brookings Institution reports that through the first 18 months of the 2004 election cycle, the national party committees raised $615 million in hard money alone, which was more than the $540 million that they had raised in hard and soft money combined at a comparable point in the 2000 election cycle. Let me say that again. As of June 30, the parties had raised more in hard money in this election cycle than they had raised in hard and soft money combined at a similar point in the 2000 cycle. Remember the Senator who said there was ``no way'' that the parties could make up for the soft money they would lose under the McCain- Feingold bill. Well it turns out that Senator was wrong. The parties are not just surviving, they are thriving. And they are doing this not just by taking advantage of the increased contribution limits instituted by McCain-Feingold. Corrado and Mann state the following: While these increases in the contribution limits have provided the parties with millions of additional dollars, the growth in party funding in 2004 is largely the result of a remarkable surge in the number of party donors. Both parties have added hundreds of thousands of new small donors to their rolls. The numbers are truly astonishing. The Republican National Committee has added a million new donors. The NRCC added 400,000 new contributors in 2003. The DNC has recruited more than 800,000 new small donors through direct mail alone. And these numbers don't include any new online contributions in 2004. And, of course, they don't include the hundreds of millions of dollars in hard money raised by the two major party presidential candidates. The parties are stronger than they were before not just because they have raised more money than in 2000. Small contributors are a much better indicator of strength than big contributors. Small contributors volunteer, they are involved, they vote, and they inspire others to contribute and vote. I believe McCain-Feingold saved the political parties from the oblivion to which they were sending themselves with their reliance on the easy fix of soft money. The argument over the effect of the bill on the political parties was just one of the disagreements we had when the bill was considered back in 2001. Another dispute concerned what would happen to all that soft money that had previously been contributed to the parties. Opponents of the bill expressed absolute certainty that the money contributed to the parties would simply migrate to less accountable outside groups. One Senator said the following during our debate: Why do we want to ban soft money to political parties, that funding which is now accountable and reportable? This ban would weaken the parties and put more money and control in the hands of wealthy individuals and independent groups who are accountable to no one. Another Senator quoted a prominent Republican lawyer who said: ``The world under McCain-Feingold is a world where the loudest voices in the process are third-party groups.'' Those of us who supported the bill certainly recognized that some donors would look for alternative ways to influence the political process. But we also thought that much of the money that was being given to the political parties was being given under duress. We argued that if Members of Congress and other public officials weren't asking for the money, much of it wouldn't be given at all. We had heard from countless corporate executives that the soft money system, which many had called legalized bribery, was really more like legalized extortion. I will never forget the words of Ed Kangas the former CEO of Deloitte Touche Tohmatsu. He said: Businesses should not have to pay a toll to have their case heard in Washington. There are many times when CEOs feel like the pressure to contribute soft money is nothing less than a shakedown. In 1999, on this floor, I said the following in a debate with another Senator who actually supported the soft money ban, but asserted that soft money would simply flow to outside groups: I have this chart. It is a list of all the soft money double givers. These are corporations that have given over $150,000 to both sides. Under the Senator's logic, these very same corporations--Philip Morris, Joseph Seagram, RJR Nabisco, BankAmerica Corporation--each of these would continue making the same amount of contributions; they would take the chance of violating the law by doing this in coordination with or at the suggestion of the parties, and they would calmly turn over the same kind of cash to others, be it left-wing or right-wing independent groups? I have to say . . . I am skeptical that if they cannot hand the check directly to the political party leaders, they will take those chances. On this dispute, with 3\1/2\ months to go before the election, the jury is still out. But once again, the early indications are that the doomsday predictions of opponents of the bill will not come to pass. Not long ago, the Wall Street Journal reported that it surveyed the 20 top corporate donors in the 2002 election cycle and more than half, including Microsoft, Citigroup, and Pfizer, are resisting giving large contributions to the outside groups, the 527s, that are trying to raise unlimited contributions since the parties can no longer accept them. As the article noted: The reticence illustrates an uneasiness on the part of some of the corporations to get sucked back into the world of unlimited political contributions that they thought campaign reform had left behind. According to a Washington Post article in June: [E]lection law lawyers said corporations are showing significant reluctance to get back into making ``soft money'' donations after passage of the McCain-Feingold law. According to the Center for Public Integrity, which maintains the most complete database of information on 527s using the reports required by the disclosure bill we passed in 2000, 527s that focus on federal elections along with labor-funded 527s have raised approximately $150 million as of June 30. This is far less than the $254 million that had been raised in soft money by the parties at a similar point in the 2000 election cycle and less than half of the $308 million raised in the first 18 months of the 2002 cycle. It is, of course, possible that 527 fundraising will pick up significantly in the wake of the FEC's determination in May that it will likely not regulate these groups as political committees in this election cycle. But the underlying problem with raising money for these organizations remain. That is very simple. It is central to this whole issue. They cannot offer the kind of access and influence that made the parties such effective soft money seekers prior to the enactment of McCain-Feingold. There is no doubt that ideologically motivated wealthy individuals will continue to seek ways to influence elections. Most of the money being donated to the 527s is coming from such people. I continue to believe that many of these groups, since their stated goal is to influence federal elections, should be required to register as federal PACs, which can accept contributions of only $5,000 per year from individuals. But even if they continue to operate outside the law, they are not going to replace the political parties. Without significant corporate support, they simply cannot raise the kind of money that the parties raised in 2000, much less the amounts that would have been raised under the old system in this election cycle. So to those who forecast or believed the doomsday scenarios back in 2001 and 2002 when we considered the bill, or who continue to believe them today, I suggest you look at the numbers. McCain-Feingold is working, and the Senate should be proud that it passed. As we approach the 2004 elections, and the airwaves become saturated with political advertising, note the difference. Party ads are paid for with the contributions of millions of hardworking Americans proud to participate in the political process and looking to parties and to their government to represent them, not the special interests that used to write the big checks. I yield the floor. I suggest the absence of a quorum. The PRESIDENT OFFICER. The clerk will call the roll.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I opposed the Morocco free-trade agreement. Unfortunately, it is one more in what has become an increasing number of deeply flawed trade agreements. These agreements continue to jeopardize U.S. jobs and businesses. They undermine environmental, health, and safety protections. They hinder our ability to loosen restrictions on reimportation of FDA-approved prescription drugs. They limit our ability to use our tax dollars to help our own businesses and workers through buy American policies, and to discourage corporations from reincorporating overseas, and they limit the ability of our democratic institutions to regulate essential services. But though I opposed this trade agreement, I want to underscore my firm belief that our bilateral relationship with Morocco is extremely important. We need our Moroccan partners if we are to succeed in pursuing our first foreign policy priority: the fight against al-Qaida and associated global terrorist organizations. The United States cannot afford to ignore this critical North African ally which has suffered, as we have, brutal terrorist attacks. We cannot fight terrorists without a strong international coalition sharing crucial intelligence, drying up sources of financial and political support for terrorism, and tracking down terrorist leaders. In order to have a strong partner to count on, the U.S. must support the Moroccan people in their fight for basic human rights, their efforts to combat corruption, and their work to create the kinds of economic opportunities that the country's large population of youth need. Without these efforts, this population will stagnate and resentment will grow. The U.S. should be cultivating future partners in Morocco, not future antagonists.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I discuss a very important issue to my home State of Wisconsin, and that is the time limits placed on Supplemental Security Income, SSI, benefits for refugees and other humanitarian immigrants.- Due to a provision included in the 1996 welfare reform law, some refugees and other humanitarian immigrants legally residing in the United States, including many members of the Hmong ethnic group, are beginning to lose their eligibility for SSI. The provision states that refugees and other humanitarian immigrants are only eligible for SSI for 7 years. Some of these legal immigrants have already lost their benefits, and for others the 7-year deadline is quickly approaching. Many of the Hmong who currently reside in Wisconsin and throughout the U.S. provided invaluable assistance to the U.S. military during the Vietnam War. The Hmong made great sacrifices in fighting against communists in Laos and providing intelligence to the CIA, and could no longer stay in the region out of fear for their safety. In return for their sacrifices for our Nation, we relocated them to the United States, along with their families, to live under refugee or humanitarian immigrant status. The refugees and other humanitarian immigrants who depend on SSI are elderly or disabled and often lack any other financial resources. Many Hmong currently have applications for citizenship pending, and have been waiting for over 2 years for their applications to be processed by the Immigration and Naturalization Service and now the Department of Homeland Security. Others are suffering from serious mental or physical disabilities that prevent them from completing the requirements necessary to obtain citizenship. Losing their SSI eligibility will cause significant strain to those Hmong who rely on SSI as their only financial means. I am proud to cosponsor S. 2623, the SSI Extension for Elderly and Disabled Refugees Act, which was introduced by Senator Smith. This bill would extend the 7-year deadline by 2 years, giving those refugees who depend on SSI some additional time to navigate the naturalization process. It is my sincere hope that this bill will be taken up and passed quickly, since time is of the essence for this population. Many of the Hmong risked their lives to help the United States and I believe that the U.S. Government should do all it can to provide for them in their time of need.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I oppose the nomination of William G. Myers to the Ninth Circuit Court of Appeals. After attending the hearing on his nomination, listening to his testimony, and reviewing his responses to my written questions, I am not persuaded that Mr. Myers can set aside his personal views and objectively evaluate cases that come before him. Many times during the nomination hearing, Mr. Myers simply evaded or refused to answer questions that were posed to him, claiming that he could not comment on an issue that could come before him if he is confirmed. This was not the approach taken by at least some of President Bush's nominees. Then-Professor, now-Judge Michael McConnell, for example, was forthcoming in his testimony and answers to written questions. He convinced me in his hearing that he would put aside his personal views if he were confirmed to the bench. Mr. Myers did not. Since Mr. Myers has never served as a judge, his published articles, his past legal work, his legal opinions at the Department of the Interior, and his testimony before the Judiciary Committee are all we have to assess his legal philosophy and views. This nominee did not simply make a stray comment that can be interpreted as indicating strong personal disagreement with our nation's environmental laws; he has a long record of extreme views on the topic. Mr. Myers has called the Clean Water Act an example of ``regulatory excess.'' He has stated that critics of the administration's policies are the ``environmental conflict industry.'' He has stated that conservationists are ``mountain biking to the courthouse as never before, bent on stopping human activity wherever it may promote health, safety, and welfare.'' He even compared the management of public lands to King George's ``tyrannical'' rule over American colonies. Over 175 environmental, Native American, labor, civil rights, women's rights, disability rights, and other organizations oppose the nomination of Mr. Myers. This opposition speaks volumes about the concern that many potential litigants have about his views on a diverse range of issues that would come before his court. Rather than explaining what his views were during the nomination hearing or in responses to follow-up questions, Mr. Myers repeatedly ducked questions posed by me and my colleagues. For example, during the hearing Mr. Myers was asked to identify which regulations he considered to be ``tyrannical.'' After pointing out that he wasn't criticizing Government employees, which obviously wasn't the question, Mr. Myers finally identified a previous Federal rangeland policy. Yet, when pressed, Mr. Myers would not say that he personally believed these regulations were unneeded, but that he was merely ``advocating on behalf of my clients.'' This is what all nominees say, of course, when challenged about past statements made on behalf of clients, but since Mr. Myers has never been a judge or a law professor, we have no other record to evaluate. And since he was repeatedly unwilling to tell us about his personal views in his hearing, we certainly cannot ignore his previous published statements on important legal issues that he will be called upon to decide. Mr. Myers's views on the jurisdiction of Federal environmental laws, which he has called ``top down coercion,'' also concern me. Mr. Myers authored a Supreme Court amicus brief on behalf of the National Cattlemen's Beef Association and others in an important case dealing with the jurisdiction of the Clean Water Act, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. The SWANCC case involved a challenge to the Federal Government's authority to prevent waste disposal facilities from harming waters and wetlands that serve as vital habitats for migratory birds. Mr. Myers argued in this brief that the commerce clause does not grant the Federal Government authority to prevent the destruction and pollution of isolated interstate waters and wetlands. The Department of Justice, on behalf of the Army Corps and EPA, has filed approximately 2 dozen briefs in Federal court since the SWANCC decision. DOJ has consistently argued that the Clean Water Act (CWA) does not limit coverage of the Clean Water Act to navigable-in-fact waters. When I asked Mr. Myers about his view of the Clean Water Act, Mr. Myers would not say whether he agrees with this administration's consistent interpretation of the SWANCC case. He would not provide any information on how he reads the Supreme Court's SWANCC decision other than saying that it is ``binding precedent'', nor would he state what waters, if any, should not receive Federal Clean Water Act protection post-SWANCC. His refusal to respond to these questions gives me pause because of a recent Ninth Circuit decision that ruled that the SWANCC decision should be read narrowly and that wetlands, streams and other small waters remain protected by the statute and implicitly that the rules protecting those waters are constitutional. While Mr. Myers indicated that he would follow this Ninth Circuit precedent, he refused to elaborate on his views on this crucial issue. In follow-up questions, I also asked Mr. Myers about a 1994 article he wrote for the National Cattlemen Beef's Association, which he also represented in the SWANCC case. Myers wrote that environmental organizations have: aggressively pursued their goals before friendly judges who have been willing to take activist positions and essentially legislate from the bench. No better example can be found than that of wetlands regulation. Mr. Myers argued: The word ``wetlands'' cannot be found in the Clean Water Act. Only through expansive interpretation from activist courts has it come to be such a drain on the productivity of American agriculture. Mr. Myers' answers to my questions about this article were not forthcoming. Mr. Myers would not list any of the cases he was referring to in that article or any cases of which he had subsequently become aware in which there has been an ``expansive interpretation from activist courts'' of ``wetlands regulation.'' Nor could he provide me with his analysis of United States v. Riverside Bayview Homes, Inc., the 1985 case in which the United States Supreme Court unanimously upheld the Reagan administration's application of the Clean Water Act to protect wetlands. Mr. Myers stated that he considered the case to be binding precedent, which of course it is, but that doesn't shed much light on his views on the Clean Water Act. I am also deeply troubled by Mr. Myers's record as Solicitor General at the Department of the Interior. During his tenure as the chief lawyer for the Department, Mr. Myers authored a very controversial Solicitor's opinion, and approved an equally controversial settlement. That Solicitor's opinion overturned a previous ruling regarding the approval of mining projects and greatly limited the authority of the Interior Department to deny mining permits under the Federal Land Policy Management Act--FLPMA. FLPMA amends the Mining Law of 1872 in part by requiring that: in managing public land the Secretary shall, by regulation or otherwise take any action necessary to prevent the unnecessary or undue degradation of public lands. In the Solicitor's opinion, Mr. Myers interpreted this law to mean that the Government could only deny a project to prevent unnecessary and undue degradation of public lands. Thus, if the proposed mining activity is ``necessary,'' then Mr. Myers declared that the Government would have no authority to prevent a mine from going forward, even if it would harm sacred Native American grounds, historic sites, or environmentally sensitive areas. This legal opinion interpreting DOI regulations is one of the only guides we have to evaluate how a Judge Myers would interpret statutes Last year, a Federal court found that Mr. Myers's opinion misconstrued the clear mandate of FLPMA, which by its plain terms vests the Secretary of the Interior with the authority--indeed the obligation--to disapprove mines that ``would unduly harm or degrade the public land.'' In response to questions posed about this opinion at the hearing, Mr. Myers could not adequately explain his statutory interpretation of ``unnecessary or undue,'' nor could he articulate his rationale for finding that the word ``or'' in the statute actually meant ``and.'' After Myers's opinion, Secretary Norton approved the mining permit for the 1600-acre cyanide heap-leaching Glamis gold mine located on sacred tribal lands. Tribal leaders have called the Myers' legal opinion and the resulting decision to approve the Glamis mine ``an affront to all American Indians.'' The National Congress of American Indians, which includes more than 250 American Indian and Alaska Native tribal governments, formally opposes the Myers nomination. I have discussed my concerns about this nominee at some length because I wanted to show that my opposition to Mr. Myers is not based on a single intemperate remark he has made as an advocate. I simply am not convinced that Mr. Myers will put aside his personal policy views and fairly interpret and apply the law as passed by Congress. He has shown a willingness to disregard clear statutory language as Solicitor General of the Department of the Interior. It is not enough for Mr. Myers to pledge that he will follow Supreme Court precedent. As we all know, the Supreme Court has not answered every legal question. Circuit court judges are routinely in the position of having to address novel legal issues. Mr. Myers's writings and speeches raise the question of whether he has prejudged many important legal questions. His answers to committee questions did not satisfy me that he has not. I will vote ``No'' on the nomination. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I will support the amendment offered by the Senator from Ohio, Mr. DeWine, and the Senator from Massachusetts, Mr. Kennedy, but in doing so I also want to note my concern about the potential for unconstitutional infringement on commercial speech that the amendment may engender in the regulations it directs to be promulgated to regulate tobacco advertising. There is little doubt that the health of our citizens, and in particular the health of our children, are a substantial governmental interest. And given that substantial interest, some regulation of tobacco advertising may be appropriate. Further, the amendment appropriately sets forth some safeguards that strive to prevent unconstitutional infringement on commercial speech, and I commend the authors for including that sensible protection. Moreover, in the wake of the Lorillard case in 2001, we now have a somewhat clearer legal standard in this area that can guide these proposed regulations. But the rights spelled out in the first amendment of our Constitution are so fundamental to our liberties that we must be especially sensitive to the potential for Government overreaching. For that reason, while I will support the amendment, I will also be monitoring this aspect of the amendment closely as regulations of tobacco advertising are developed and implemented.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I thank the Senator from North Dakota for his courtesy in letting me make a brief statement before he makes his statement. I rise today to express my strong opposition to the United States- Australia Free Trade Agreement and the legislation that has been introduced to implement it. This is the latest in a string of deeply flawed trade agreements. It is a bad deal for dairy farmers, it is a bad deal for consumers, and it is a bad deal for Wisconsin. The agreement undermines our dairy industry by displacing the domestic milk supply. It proposes to increase quota access to the U.S. market for Australia's dairy producers, while failing to address the flood of milk protein concentrate imports that is entering the country through a tariff loophole and that has been harming U.S. dairy farmers for some time. There can be no doubt that this agreement will put downward pressure on dairy prices and will further accelerate the loss of dairy farms in Wisconsin and across the Nation, which is something I have been working hard to stop. Wisconsin is still the No. 1 producer of cheese in the United States. But this agreement will hurt Wisconsin cheesemakers as they attempt to compete against the ever-rising flood of Australian imports. By signing this agreement without addressing MPCs, the administration turned a blind eye to the concerns of the Wisconsin dairy industry. The adverse effects of the agreement are not limited to our dairy farmers. During the informal mock markup, a majority of the Senate Finance Committee expressed concerns about safeguards to protect American ranchers and cattle producers from unfair imports of beef products. Those concerns underscore the importance of the administration consulting and working with Senators in the drafting of the implementing legislation. Instead of honoring the informal process set forward in the trade promotion authority, the administration and the Senate leadership ignored these concerns. The result is to further undermine the ability of the Senate to weigh in on trade agreements, which was already greatly weakened by the passage of fast-track authority. This is not the only problem with the trade agreement between the United States and Australia. As an original cosponsor of bipartisan legislation that would allow Americans to safely purchase prescription drugs from countries including Australia, I am particularly troubled by reports that this agreement would effectively ban reimportation of prescription drugs from Australia. In February, I wrote to the Senate Finance Committee and urged them to address this issue before the unamendable legislation implementing the trade agreement was brought to the Senate floor for a vote. Now, reports raise real questions about whether Congress can repeal the trade agreement's ban on reimportation of prescription drugs from Australia, even if it later passed legislation permitting reimportation. I do not see why we should be voting now on a trade agreement that would potentially tie the hands of both Australia and the United States on this vitally important issue. This legislation may well be a template for future trade agreements to include similar provisions that restrict the safe reimportation of drugs. I strongly disagree with efforts by trade negotiators to address an issue that Congress is currently actively considering. Congress should be setting policy on an issue as important as the importation and the reimportation of prescription drugs, not our trade negotiators. There continue to be many concerns about the impact of this agreement on the U.S. health care system, particularly the Federal programs aimed at helping our veterans, our seniors, and our neediest citizens. These questions need to be resolved to ensure access to safe and affordable prescription drugs. I have introduced a bill, S. 1994, which would address what I believe is one of the biggest flaws of the new Medicare prescription drug benefit. My bill would allow Medicare to negotiate the prices of prescription drugs offered under this new benefit. There is widespread support for giving Medicare this authority. It only makes sense we let Medicare use its considerable leverage to help lower the cost of prescription medicines for seniors. But there are questions about how this agreement would impact Medicare's ability to negotiate drug prices, should legislation such as mine be passed by Congress. We need more time to answer these questions and to fully understand the possible interaction of this agreement with legislation to allow the safe reimportation of prescription drugs. Trade promotion authority provides expedited consideration of trade agreements, but we are well ahead of any deadlines imposed. This Chamber could easily have waited until next week or even into September to consider this measure. With only 20 hours of debate allowed, the Senate should not have rushed headlong into this debate today. There is simply no excuse for Congress hastily taking up the Australia Free Trade Agreement before resolving these questions. The administration presented a bad deal to Congress and the American people. Not only will this agreement hurt Wisconsin's dairy industry, but the whole process has undermined Congress's constitutional authority over trade policy and it has weakened our ability to make policy. For those reasons, I will oppose the United States-Australia Free Trade Agreement implementing legislation, and I urge my colleagues to vote against this measure. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent that my staff member, Nancy Mitchell, be granted floor privileges during the consideration of this legislation.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I supported passage of this year's defense authorization bill because it contains many provisions that our brave men and women in uniform need and deserve. But before I go into the details of why I support this legislation, I must first thank the members of the United States Armed Forces for their service to our country. They are performing admirably under difficult circumstances all over the world. Our soldiers, sailors, airmen, and Marines, along with their families, are making great sacrifices in service to our country. I am voting for this legislation to support these people who are serving the country with such courage. I strongly support the 3.5 percent across-the-board pay raise for military personnel that this bill provides. We must make sure that our professional military is paid a fair wage. This bill also makes permanent the increase in family separation allowance and imminent danger pay, another important policy for our men and women in uniform. Once again, I was proud to support the expansion of full-time TRICARE health insurance for our National Guard and Reserve. The reserve component is being used more than at any other time since World War II. Forty percent of our troops in Iraq are reserve component troops. These citizen soldiers face additional burdens when they transition in and out of their civilian life and providing them and their families with TRICARE is one way we can ease those burdens. Another aspect of this bill that I strongly support is the increased funding for force protection equipment. Last year, concerned Wisconsinites contacted my office telling me that they or their deployed loved ones were fighting for their country in Iraq without the equipment they needed. This situation is unconscionable. I have repeatedly pressed the Pentagon to fix this situation and I and my colleagues went a long way in addressing these shortages in the supplemental spending bill for Iraq and Afghanistan. The $925 million for additional up-armored HUMVEES and other ballistic protection as well as the $600 million in force protection gear and combat clothing in this bill above what was in the President's proposed budget further ensures that our troops have the equipment they need to perform their duties on the ground. I am pleased that the Senate approved my amendment to ensure that the Inspector General for the Coalition Provisional Authority will continue to oversee U.S. reconstruction efforts in Iraq after June 30 of this year as the Special Inspector General for Iraq Reconstruction. The American taxpayers have been asked to shoulder a tremendous burden in Iraq, and we must ensure that their dollars are spent wisely and efficiently. Today, the CPA is phasing out, but the reconstruction effort has only just begun. As of mid-May, only $4.2 billion of the $18.4 billion that Congress appropriated for reconstruction in November had even been obligated. With multiple agencies involved and a budget that exceeds the entire foreign operations appropriation for this fiscal year, U.S. taxpayer-funded reconstruction efforts should have a focused oversight effort. My amendment will ensure that the Inspector General's office can continue its important work even after June 30, rather than being compelled to start wrapping up and shutting down while so much remains to be done. This is good news for the reconstruction effort, and good news for American taxpayers. I also want to thank the chairman and the ranking member of the Armed Services Committee for working with me to accept the amendment that I offered with the Senator from Maine, Ms. Snowe, which represents a first step toward enhancing and strengthening transition services that are provided to our military personnel. This amendment will require the General Accounting Office, GAO, to undertake a comprehensive analysis of existing transition services for our military personnel that are administered by the Departments of Defense, Veterans Affairs, and Labor and to make recommendations to Congress on how these programs can be improved. This study will focus on two issues: how to achieve the uniform provision of appropriate transition services to all military personnel, and the role of post-deployment and pre-discharge health assessments as part of the larger transition program. I very much look forward to reviewing the results of this study. The Senate version of the defense authorization bill also includes a provision finally fulfilling a goal for which I have been fighting for years--making sure that every state and territory has at least one Weapons of Mass Destruction Civil Support Team, WMD-CST. I was delighted earlier this year when Wisconsin was chosen as one of 12 States to receive a WMD-CST authorized and appropriated for in FY2004 but I was also disappointed that the President's proposed budget for FY2005 included funding for only 4 of the 11 outstanding teams. I along with 28 of my colleagues, wrote the Senate Armed Services Committee chairman and ranking member asking them to fully fund all 11 remaining teams. The chairman and ranking member have been very supportive of my efforts in this area over the years and I thank them again this year for funding all 11 remaining WMD-CSTs. This authorization bill addresses the grave threat our nation faces from unsecured nuclear materials. It includes $409 million for the Cooperative Threat Reduction program and $1.3 billion for the Department of Energy nonproliferation programs. I was also proud to cosponsor the amendment offered by Senator Domenici and Senator Feinstein that authorizes the Department of Energy to secure the tons of fissile material scattered around the world. This bipartisan initiative aims to dramatically accelerate current efforts to secure this dangerous material so that it cannot fall into the hands of those who aim to harm us. Time is of the essence and I was pleased to hear that the administration is fully supportive of this effort through the Global Threat Reduction Initiative. I also voted for an amendment offered by Senator Reed that boosts the Army's end strength by 20,000. Mr. President I did so because it has become clear that the Army is currently overstretched, and I believe that we need to ensure readiness to handle threats in the future. A recent Brookings Institution report says that the military is being stretched so thin that if we don't expand its size, it could break the back of our all-volunteer Army. One does not have to support all of the deployment decisions that brought us to this point today to see that we need to have the capacity to handle multiple crises with sufficient manpower and strength. I do not take lightly the decision to lock in a significant increase in spending. The need is great, however, and the deliberative defense authorization process, not the emergency supplemental process, is the place to do it. I must note that, unfortunately, this bill has many of the same problems that I've been fighting to fix for years. Once again, we are spending billions upon billions of dollars for weapons systems more suited for the Cold War than the fight against terrorism. I was very disappointed that the Senate did not agree to Senator Levin's amendment that would have used a small percentage of the over $10 billion authorized for missile defense for critical unfunded homeland defense needs. This amendment, which I cosponsored, would have used $515.5 million now slated for additional untested interceptors and spent it instead on the top unfunded Department of Defense homeland defense priorities, research and development programs, radiation detection equipment at seaports, and other important defenses against terrorism. Budgeting is about setting priorities and I am sad to say that when the Senate failed to adopt Senator Levin's amendment, it missed a golden opportunity to adjust its priorities in order to face our country's most pressing threat--the threat of terrorism. I was disappointed that the Senate failed to reduce the retirement age for those in the National Guard and Reserve from 60 to 55. Our country has placed unprecedented demands upon the Guard and Reserve since September 11, 2001, and will continue to do so for the foreseeable future. Considering the demands we are placing on them, it is time that we lower the Guard and Reserve's retirement age to the same level as civilian federal employees. Although my support for reducing the reserve component retirement age has been unwavering, because of the significant budgetary impact of this measure I had hoped that Congress would first receive reviews of reserve compensation providing all of the information that we need to address this issue responsibly. I patiently waited for several studies on the issue, including by the Defense Department, but when the studies came out they called for further study. This matter cannot continue to languish unaddressed indefinitely. As retired U.S. Air Force Colonel Steve Strobridge, government relations director for the Military Officers Association of America, MOAA, put it, ``It is time to fish or cut bait.'' I agree with MOAA's analysis that, ``Further delay on this important practical and emotional issue poses significant risks to long-term (Guard and Reserve) retention'' and I was proud to vote for the amendment offered by the Senator from New Jersey, Mr. Corzine. I also believe that the Senate missed an opportunity to provide a small but needed measure of relief to military families when it failed to adopt my Military Family Leave Act amendment. This amendment would have allowed a spouse, child, or parent who already qualifies for Family and Medical Leave Act, FMLA, benefits--unpaid leave--to use those existing benefits for issues directly arising from the deployment of a family member. The Senate adopted a similar amendment by unanimous consent when I offered it to the Iraq supplemental spending bill. This amendment has the support of the Military Officers Association of America, the Enlisted Association of the National Guard of the United States, the Reserve Officers Association, the National Guard Association of the United States, the National Military Family Association, and the National Partnership for Women and Families. I regret that a harmful second degree amendment was offered to my amendment and that I was not given the opportunity to have a straight up or down vote. Rather than taking up the Senate's time in a protracted debate about the second degree amendment, I withdrew my amendment so that this important defense authorization bill could move forward. However, the need addressed by my amendment remains and I will continue to fight to bring some relief to military families that sacrifice so much for all of us. I want to bring attention to another element of the Defense Authorization bill that raises concerns for me. The Defense Authorization bill includes language that raises troop caps in Colombia from 400 to 800 military personnel and from 400 civilian contractors to 600. I am disappointed that Senator Byrd's amendment was not approved by the Senate, which would have limited the increases in these caps to 500 military personnel and 500 civilian contractors. I have serious concerns about the increase in these caps to the levels established by the bill. Most importantly, I worry about placing more Americans in harm's way in Colombia. Further deployments bring greater risks to an already overstretched military. We do not want to risk being drawn further into Colombia's civil war--certainly not without a thorough debate that the American people can follow. In addition, many of my constituents and I remain concerned that by raising these caps, the U.S. devotes greater resources to the military side of the equation in Colombia without balancing our approach through greater support for democratic institutions, increasing economic development, and supporting human rights. There are other provisions in this bill with which I disagree and the Senate rejected a number of amendments that would have made this bill better. However, on balance this legislation contains many good provisions for our men and women in uniform and their families and that is why I will vote for it.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, as founder of the Senate Wilderness Caucus, I introduced a Senate resolution to commemorate the 40th anniversary of the Wilderness Act of 1964, which was signed into law on September 3, 1964, by President Lyndon B. Johnson. I thank the following colleagues for their support as cosponsors: Senator Sununu, Senator Hagel, Senator Durbin, Senator Boxer, Senator McCain, Senator Murray, Senator Lugar, Senator Warner, Senator Chafee, Senator Snowe, and Senator Collins. The Wilderness Act became law seven years after the first wilderness bill was introduced by Senator Hubert H. Humphrey of Minnesota. The final bill, sponsored by Senator Clinton Anderson of New Mexico, passed the Senate by a vote of 73-12 on April 9, 1963, and passed the House of Representatives by a vote of 373-1 on July 30, 1964. The Wilderness Act of 1964 established a National Wilderness Preservation System ``to secure for the American people of present and future generations the benefits of an enduring resource of wilderness.'' The law gives Congress the authority to designate wilderness areas, and directs the Federal land management agencies to review the lands under their responsibility for their wilderness potential. Under the Wilderness Act, wilderness is defined as ``an area of undeveloped federal land retaining its primeval character and influence which generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable.'' The creation of a national wilderness system marked an innovation in the American conservation movement--wilderness would be a place where our ``management strategy'' would be to leave lands essentially undeveloped. The original Wilderness Act established 9.1 million acres of Forest Service land in 54 wilderness areas. Now, after passage of 102 pieces of legislation, the wilderness system is comprised of over 104 million acres in 625 wilderness areas, across 44 States, and administered by four Federal agencies: the Forest Service in the U.S. Department of Agriculture, and the Bureau of Land Management, the Fish and Wildlife Service, and the National Park Service in the Department of the Interior. As we in this body know well, the passage and enactment of the Wilderness Act was a remarkable accomplishment that required steady, bipartisan commitment, institutional support, and strong leadership. The U.S. Senate was instrumental in shaping this very important law, and this anniversary gives us the opportunity to recognize this role. As a Senator from Wisconsin, I feel a special bond with this issue. The concept of wilderness is inextricably linked with Wisconsin. Wisconsin has produced great wilderness thinkers and leaders in the wilderness movement such as Senator Gaylord Nelson and the writer and conservationist Aldo Leopold, whose A Sand County Almanac helped to galvanize the environmental movement. Also notable is Sierra Club founder John Muir, whose birthday is the day before Earth Day. Wisconsin also produced Sigurd Olson, one of the founders of the Wilderness Society. I am privileged to hold the Senate seat held by Gaylord Nelson, a man for whom I have the greatest admiration and respect. Though he is a well-known and widely respected former Senator and former two-term Governor of Wisconsin, and the founder of Earth Day, some may not be aware that he is currently devoting his time to the protection of wilderness by serving as a counselor to the Wilderness Society--an activity which is quite appropriate for someone who was also a co- sponsor, along with former Senator Proxmire, of the bill that became the Wilderness Act. The testimony at congressional hearings and the discussion of the bill in the press of the day reveals Wisconsin's crucial role in the long and continuing American debate about our wild places, and in the development of the Wilderness Act. The names and ideas of John Muir, Sigurd Olson, and, especially, Aldo Leopold, appear time and time again in the legislative history. Senator Clinton Anderson of New Mexico, chairman of what was then called the Committee on Interior and Insular Affairs, stated his support of the wilderness system was the direct result of discussions he had held almost 40 years before with Leopold, who was then in the Southwest with the Forest Service. It was Leopold who, while with the Forest Service, advocated the creation of a primitive area in the Gila National Forest in New Mexico in 1923. The Gila Primitive Area formally became part of the wilderness system when the Wilderness Act became law. In a statement in favor of the Wilderness Act in the New York Times, then-Secretary of the Interior Stewart Udall discussed ecology and what he called ``a land ethic'' and referred to Leopold as the instigator of the modern wilderness movement. At a Senate hearing in 1961, David Brower of the Sierra Club went so far as to claim that ``no man who reads Leopold with an open mind will ever again, with a clear conscience, be able to step up and testify against the wilderness bill.'' For others, the ideas of Olson and Muir--particularly the idea that preserving wilderness is a way for us to better understand our country's history and the frontier experience--provided a justification for the wilderness system. In closing, I would like to remind colleagues of the words of Aldo Leopold in his 1949 book, A Sand County Almanac. He said, ``The outstanding scientific discovery of the twentieth century is not the television, or radio, but rather the complexity of the land organism. Only those who know the most about it can appreciate how little is known about it.'' We still have much to learn, but this anniversary of the Wilderness Act reminds us how far we have come and how the commitment to public lands that the Senate and the Congress demonstrated 40 years ago continues to benefit all Americans.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, the Constitution of the United States is a historic guarantee of individual freedom. It has served as a beacon of hope, an example to people around the world who yearn to be free and to live their lives without government interference with their most basic human decisions. I took an oath when I joined this body to support and defend the Constitution. I am saddened, therefore, to be standing on the floor today debating a constitutional amendment that is inconsistent with our Nation's history of expanding freedom and liberty. It is all the more unfortunate because it has become all too clear that having this debate at this time is aimed at scoring points in an election year. Even a leading proponent of this amendment admits that we are engaged in a political exercise, pure and simple. Paul Weyrich, president of the Free Congress Foundation, recently stated: The President has bet the farm on Iraq. So the proper solution, according to Mr. Weyrich, is to ``change the subject'' from Iraq to the Federal marriage amendment. Mr. Weyrich also recently stated: If [President Bush] wishes to be reelected then he had better be up front on this issue, because if the election is solely on Iraq, we're talking about President Kerry. I am loathe to come to that kind of conclusion. But I believe it to be the truth. There we have it. This proposed constitutional amendment is a poorly disguised diversionary tactic that is essentially a political stunt. Will this proposed constitutional amendment create jobs for mothers and fathers, husbands and wives, and stop the flow of American jobs overseas? Will this proposed constitutional amendment secure a good education for our children? Will this proposed constitutional amendment improve the lives of American families on any of these issues? Obviously not. Instead of Congress and the President getting to work on issues that would help American families, we are spending time--in fact a lot of time--on the Senate floor on a poorly thought out, divisive, and politically motivated constitutional amendment that everyone knows has no chance of success in this Chamber. What is even more troubling is that this effort risks stoking fear and encouraging bigotry toward one group of Americans. So here we are, debating a constitutional amendment in search of a justification. This debate is not really about supporting marriage. We all agree that good and strong marriages should be supported and celebrated. The debate on this floor today is about whether we should amend the U.S. Constitution to define marriage. The answer to that question has to be no. We do not need Congress to legislate for all States, for all time, on a matter that has been traditionally handled by the States and religious institutions since the founding of our Nation. For that reason alone, this amendment should be defeated. At the outset, let me state in the strongest terms I can that I object to the Senate discussing and debating this proposed constitutional amendment without it first going through the Senate Judiciary Committee. We are here today debating a proposed amendment to our Nation's governing charter. In fact, this is the very first time this particular amendment has even been brought before the Senate, and neither the Judiciary Committee nor the Constitution Subcommittee has debated and marked up this proposal. One might ask why the supporters of this proposed amendment feel the need to rush to the floor and bypass the committee process. I suspect it is because they fear they do not have enough votes on the committee to approve the amendment and report it to the floor. It may also be that the time it would have taken to examine the amendment and debate it in committee would have interfered with the predetermined political schedule for considering it on the Senate floor. Or perhaps that committee consideration would expose the weaknesses in the amendment and reduce support in the Senate. But in any event, the decision to bypass the committee process is highly unusual and very much to be regretted. Senate leadership has not previously made a habit of bypassing the committee process when it considers a constitutional amendment. In fact, in this session of Congress alone, the Constitution Subcommittee has held markups on three proposed constitutional amendments: the victims' rights amendment, the continuity of government amendment, and, most recently, the flag amendment. The Judiciary Committee should be allowed to serve its proper role in marking up proposed constitutional amendments before they are brought to the Senate floor. Respecting the committee process for any piece of legislation is important. But it is absolutely necessary for proposed amendments to the Nation's Constitution. Amending the Constitution should not be taken lightly. A rush to debate and pass this amendment--particularly since it raises so many questions--is not in the best interests of this body or of this country. I might add that in the past quarter century, only two constitutional amendments were considered by the full Senate without committee consideration. One of these amendments, involving campaign finance restrictions, was discharged from committee by unanimous consent so it could be debated at the same time as campaign finance reform legislation. The other amendment to be brought directly to the Senate floor was an amendment to abolish the Electoral College and provide for the direct election of the President. What happened on the Senate floor to that amendment is very instructive. In 1979, the current chairman of the Judiciary Committee, the Senator from Utah, was serving in the position that I hold today, the ranking member of the Constitution Subcommittee. He strongly objected to allowing a constitutional amendment to be brought to the Senate floor without first going through the Constitution Subcommittee and the Judiciary Committee. Senator Hatch stated the following during the debate in 1979: As the ranking minority member of the Committee on the Judiciary, Subcommittee on the Constitution, I feel very strongly that there are ways to propose constitutional amendments and there are ways not to propose constitutional amendments. In this particular case, I think this is not the way to propose a constitutional amendment, and especially one that has the potential of altering the basic democratic federalism of the American political structure. He went on to say: To bypass the committee is, I think, to denigrate the committee process, especially when an amendment to the Constitution of the United States of America, the most important document in the history of the Nation, is involved. I could not agree more with the words of a then somewhat junior Senator who is now the distinguished chairman of the Judiciary Committee. His view then is exactly my view now, and I think the whole Senate should take his position very seriously. His position was supported by another distinguished Republican member of the Judiciary Committee, Senator Alan Simpson of Wyoming, who said the following: We are talking about amending the fundamental law of the land--the law that controls the creation and enforcement of all other laws, the law that embodies the procedural consensus and most basic values of all Americans, that gives our nation much of its unity and our government its legitimacy. We should consider proposals to amend the Constitution more carefully than any other measure that comes before us. Senator Simpson continued: I think the American people would strongly disapprove of what is being attempted here. This kind of procedure should not be used for a constitutional amendment. It is bound to adversely affect--to some degree the legitimacy of the process. I know it will affect us all greatly if this amendment is passed without adequate consideration by the present Senate. And he added the following, and having served with Senator Simpson, I can imagine the gentle irony in his voice: Perhaps I will eventually learn that Senators do not have time to make considered decisions even on amendments to the Constitution. . . . However, I am not at that point yet. I trust it will never be bad form in the U.S. Senate to demand respect for the legislative process. Finally, let me quote the then-ranking member of the Judiciary Committee, Senator Strom Thurmond, who served in this body for nearly a half century and as Chairman of the Judiciary Committee for 6 years. Senator Thurmond strongly supported his colleague, the Senator from Utah. He said: The best place to study these issues is before the full Judiciary Committee of the U.S. Senate. I see no reason why this committee should be short circuited by this bill not being referred here. If a bill of this nature is not going to be referred to a committee to consider it, I do not know why we need Committees in the U.S. Senate. Senator Thurmond concluded: The Judiciary Committee is the proper machinery for referral of this resolution. It is set up under our rules for considering a measure of this kind. It should be utilized and should not be sidestepped as is attempted to do here with this procedure. This debate, which took place just over 25 years ago, had a good outcome. The Senate voted to send the constitutional amendment back to the Judiciary Committee. Those Senators who urged the Senate not to bypass the committee process prevailed. Now, a quarter of a century later, we are in a similar situation. All of the Democrats on the Judiciary Committee sent a letter to the Committee Chairman a few weeks ago, urging him to follow regular order on this amendment and let the full Committee and Subcommittee on the Constitution debate and mark up this constitutional amendment. I ask that our letter be printed in the Record.

Mr. FEINGOLD. Unfortunately, our pleas have fallen on deaf ears. The Judiciary Committee, which in the last decade has considered and reported to the floor constitutional amendments dealing with a balanced budget, term limits, flag desecration, and victims' rights has been bypassed for this Federal marriage amendment. I have not heard a compelling argument explaining why the committee process should be ignored in this case. In fact, I have not heard even a remotely persuasive argument of any kind why the committee process should be bypassed. The committee process is even more important for this amendment than for some of the amendments we have considered recently. This amendment is being considered for the first time in the Senate. Changes have been made to the language of the amendment within the past few months. Just yesterday, we heard that further changes are being contemplated by some supporters of the amendment. There is significant doubt about how this amendment will be interpreted and what effect it will have on a whole variety of state and local laws and ordinances. It is exactly in this situation that the committee process can be very helpful. Issues can be explored in depth and modifications can be offered to clarify the meaning and effect of the amendment. It is not clear what would happen in our committee if we were given the opportunity to mark up this amendment. But I know we would have a much better idea of what the amendment does and doesn't do than we have today. The Framers of the Constitution deliberately put into place a difficult process for amending the Constitution to prevent the Constitution from being used as a tool for enacting policies better left to the legislative process. A proposed amendment must pass both houses of Congress by a two-thirds majority, not a simple majority. After a proposed amendment has passed both Houses, it must be ratified by three-fourths of the states. Citizens for the Constitution, a bipartisan blue-ribbon committee of former public officials, journalists, professors, and others, has suggested a set of guidelines for evaluating proposed amendments to the Constitution. The members of this committee are people who do not necessarily agree with each other on the substantive merits of proposed amendments, but they do agree that a deliberative, respectful process should be followed. Citizens for the Constitution reports that in the history of our nation, more than 11,000 proposed constitutional amendments have been introduced in Congress, but only 33 have received the needed congressional supermajorities and only 27 of those have been ratified by three-fourths of the States. The bar for amending our Constitution is very high indeed. One guideline from Citizens for the Constitution, is particularly relevant to our discussion today. The guidelines ask, ``has there been a full and fair debate on the merits of the proposed amendment?'' In this case, the answer is no. There has not been a full debate. We have had four hearings in the Judiciary Committee but there are still unanswered questions about this amendment. This is especially troubling because the sponsors of the amendment have changed its text during the course of our hearings and even stated conflicting interpretations of their amendment. The committee process could help us sort these issues out and narrow them for the floor. But the committee process has been abandoned for this amendment. That is a real shame. The current procedural situation highlights the problem with bypassing the Judiciary Committee. The Senator from Colorado introduced the first version of the Federal marriage amendment in November of last year. A revised version was then introduced the morning of a hearing in the Judiciary Committee in March of this year. Now, after bypassing the committee to bring the amendment to the floor of the Senate, we hear that supporters want a vote on yet another version of the amendment. We had four hearings in the Judiciary Committee on the issue of same sex marriage, but none of them concerned this new text that the leadership now wants to bring to a vote. That is why we needed a subcommittee and committee markup on this amendment. So alternative language could be considered and debated. That didn't happen here and that is why there is ``disarray'' among supporters of the amendment as one press report put it this morning. So instead of an up or down vote on the amendment before us, we will most likely have a procedural vote tomorrow. And the reason for that, make no mistake, is that this amendment simply was not ready for floor consideration. It wasn't ready. It should have gone through the Judiciary Committee. Aside from my objection to the failure to follow the proper process and allow committee consideration of this amendment, as was so eloquently argued 25 years ago by the Senator from Utah, Senator Simpson and Senator Thurmond, I also object to this amendment on the merits. There is no doubt that the proposed federal marriage amendment would alter the basic principles of federalism that have served our nation well for over 200 years. Our Constitution granted limited, enumerated powers to the Federal Government, while reserving the remaining issues of government, including family law, to State governments. Marriage has traditionally been regulated by the States. As Professor Dale Carpenter told the Constitution Subcommittee last September, ``never before have we adopted a constitutional amendment to limit the States' ability to control their own family law.'' Yet, that is exactly what this proposed amendment would do. It would limit the ability of states to make their own judgments as to how best to define and recognize marriage or any legally sanctioned unions. Surely both Republicans and Democrats can agree that marriage is best left to the States and religious institutions. One of our distinguished former colleagues, Republican Senator Alan Simpson, opposes an amendment to the Constitution on marriage. In an op-ed in the Washington Post last September, he stated: In our system of government, laws affecting family life are under the jurisdiction of the states, not the federal government. This is as it should be. . . . [Our Founders] saw that contentious social issues would be best handled in the legislatures of the states, where debates could be held closest to home. That's why we should let the states decide how best to define and recognize any legally sanctioned unions--marriage or otherwise. Columnist William Safire has also urged his conservative colleagues to refrain from amending the Constitution in this way. Commentator George Will takes the same position. I recognize that the current debate on same-sex marriage was hastened by a decision of the highest court in Massachusetts issued last fall. That decision, the Goodridge decision, said that the state must issue marriage licenses to same-sex couples. But the court did not say that other States must do so. And it did not say that churches, synagogues, mosques, or other religious institutions must recognize same-sex unions. Even Governor Romney, who testified before the committee at our last hearing, admitted that the court's decision in no way requires religious institutions to recognize same-sex unions. No religious institution is required to recognize same-sex unions in Massachusetts or elsewhere. That was true before the Goodridge decision, and it remains true today. I might add, that this Federal amendment would appear to interfere with the will of the people of Massachusetts who have already taken steps to respond to their court's decision. It would very likely nullify the state constitutional amendment that is currently pending in Massachusetts. Now, the supporters of the Federal marriage amendment would have Americans believe that if same-sex couples are allowed to marry in Massachusetts, we will soon see courts in other states requiring those States to recognize same-sex marriages, too. But this is a purely hypothetical concern, hardly a sound basis for amending our Nation's governing charter. As Professor Lea Brilmayer testified at a Constitution Subcommittee hearing, no court has required a State to recognize a same-sex marriage performed in another State. And as Professor Carpenter testified, ``the Full Faith and Credit Clause has never been understood to mean that every state must recognize every marriage performed in every other state. Each state may refuse to recognize a marriage performed in another state if that marriage would violate the public policy of that state.'' In fact, Congress and most States have already taken steps to reaffirm this principle. And these actions so far stand unchallenged. In 1996, Congress passed the Defense of Marriage Act, a bill I did not support, but it is now the law. DOMA is effectively a reaffirmation of the Full Faith and Credit Clause as applied to marriage. It states that no State shall be forced to recognize a same-sex marriage authorized by another state. In addition, 38 States have passed what have come to be called ``State DOMAs,'' declaring as a matter of public policy that they will not recognize same-sex marriages. There has not yet been a successful challenge to the Federal or State DOMAs. Of course, it is possible that the law could change. A case could be brought challenging the Federal DOMA or a State DOMA, and the Supreme Court could strike it down. But do we really want to amend the Constitution just in case the Supreme Court in the future reaches a particular result? We should all pause and think about the ramifications of our action before we launch a preemptive strike against the governing document of this Nation. Former Representative Bob Barr, the author of the Federal DOMA, strongly opposes amending the Constitution. He believes that amending the Constitution with publicly contested social policies would ``cheapen the sacrosanct nature of that document.'' He also warned: We meddle with the Constitution to our own peril. If we begin to treat the Constitution as our personal sandbox, in which to build and destroy castles as we please, we risk diluting the grandeur of having a Constitution in the first place. My colleagues, those are the words of the author of the Federal DOMA statute. That is what he said about the wisdom of trying to amend the Constitution in this manner. Concerns have also been raised that the Federal marriage amendment could prevent the people of a State from choosing to recognize civil unions or grant domestic partnership benefits at the State level. The proposed amendment could be construed to challenge already existing civil union and domestic partnership laws or to bar future attempts to enact such laws. Representative Barr also warned that the proposed marriage amendment could apply to not only States, but private sectors as well. Certainly, our hearings in the Judiciary Committee did not lay these concerns to rest. If anything, they made them stronger. We should not seek to amend the Constitution in a way that would reduce its grandeur. Under our longstanding system of federalism, we should leave the regulation of marriage to the States and religious institutions and get to work on the real issues that Americans are facing and deserve our attention and action. As I stand here, there are Americans across our country out of work, languishing in failing schools, struggling to pay the month's bills, or worrying about their lack of health insurance. Instead of spending our limited time this session on a proposal that is destined to fail and will only divide Americans from each other, we should be addressing the issues that will make our Nation more secure and the future of our families brighter. I urge my colleagues to oppose this ill-advised and divisive constitutional amendment. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent that Amanda Beaumont and Katie Kimpel on my Judiciary Committee staff be granted floor privileges during consideration of the federal marriage amendment.

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 speak in a moment about this class action bill and why I oppose it. I want to start by noting my strong disagreement with the procedural tactics used by the majority to block amendments to the bill. I have some familiarity with the strategy of filling the amendment tree. This was done time after time, year after year, when campaign finance reform legislation was brought to the Senate floor. This is the procedure that is used to block the Senate from working its will on a bill. The Senate has a long tradition of an open process for amendments. Any Senator has the right under our rules to offer any amendment to any bill. That is how the Senate works. It is amazing to me that the majority leader would engage in this tactic when he has not only majority support for the bill, but a supermajority in support. Democratic supporters of the bill thankfully are not prepared to block their colleagues from offering amendments. So I guess it appears that this bill is going to be sacrificed in order to prevent amendments from being offered. I commend my Democratic colleagues who support this bill for not being intimidated by the arguments made on the Senate floor that they somehow are breaking their agreement by standing up for the rights of their colleagues to offer amendments. From the very start, it was clear that these Senators had agreed to support the motion to proceed in order to get the bill to the floor of the Senate and to vote for cloture, if that motion was again filibustered. They never agreed to vote against all amendments or to block all amendments. Turning to the bill itself, I oppose the Class Action Fairness Act, S. 2062, and I will vote against the bill. The main reason for my opposition is that notwithstanding its title, I do not think this bill is fair. I do not think it is fair to citizens who are injured by corporate wrongdoers and are entitled to prompt and fair resolution of their claims in a court of law. I do not think it is fair to our State courts, which are treated by this bill as if they cannot be trusted to issue fair judgments in cases brought before them. I do not think it is fair to State legislatures, which are entitled to have the laws that they pass to protect their citizens interpreted and applied by their own courts. This bill is not only misnamed, it is bad policy. It should be defeated. Make no mistake, by loosening the requirements for Federal diversity jurisdiction over class actions, S. 2062 will result in nearly all class actions being removed to Federal court. This is a radical change in our Federal system of justice. We have 50 States in this country with their own laws and courts. State courts are an integral part of our system of justice. They have worked well for our entire history. It is hard to imagine why this Senate, which includes many professed defenders of federalism and the prerogatives of State courts and State lawmakers, would support such a wholesale stripping of jurisdiction from the States over class actions. By removing these actions to State court, Congress would shift adjudication away from State lawmakers and State judges towards Federal judges, who are often unfamiliar with the nuances of State law. In my opinion, the need for such a radical step has not been demonstrated. Class actions are an extremely important tool in our justice system. They allow plaintiffs with very small claims to band together to seek redress. Lawsuits are expensive. Without the opportunity to pursue a class action, an individual plaintiff often simply cannot afford his or her day in court. But through a class action, justice can be done and compensation for real injuries can be obtained. Yes, there are abuses in some class actions suits. Some of the most disturbing have to do with class action settlements that offer only discount coupons to the members of the class and a big payoff to the plaintiffs' lawyers. I am pleased that the issue of discount coupons is addressed in the bill, because the bill we considered in October 2003 did nothing about that problem. The bill now requires that contingency fees in coupon settlements will be based on coupons redeemed, not coupons issued. Attorney's fees will also be determined by reasonable time spent on a case and will be subject to court approval. The bill also allows a court to require that a portion of unclaimed coupons be given to one or more charitable organization agreed to by the parties. These are all good changes, but they do not change my view that the bill, as a whole, unfairly interferes with the States' administration of justice. There are three possible outcomes of this bill being enacted. Either the State courts will be deluged with individual claims, since class actions can no longer be maintained there, or there will be a huge increase in the workload of the Federal courts, resulting in delays and lengthy litigation over procedural issues rather than the substance of the claims, or many injured people will never get redress for their injuries. I don't believe any of these three choices is acceptable. I appreciate that the supporters of S. 2062 modified the new diversity jurisdiction rules for class actions in an effort to allow plaintiffs in class actions more opportunities to remain in State court. Under the new bill, a district court must decline jurisdiction if two-thirds of the plaintiffs and the primary defendants are from the state where the action was filed, there is at least one defendant who is a citizen of that State from whom significant relief is sought and whose alleged conduct forms a significant basis for the claims asserted by the proposed class. In addition, the principal injuries resulting from the alleged conduct of each defendant must have occurred in the State in which the action was originally filed. Finally, the new bill provides that district court can only decline jurisdiction if during the 3-year period preceding the filing of the action, no other similar class action has been filed against any of the defendants even if the case is filed on behalf of other plaintiffs. These criteria are an improvement on the underlying bill. But the jurisdictional requirements for class actions to remain in State courts are still too burdensome. Under the new language, for example, a class action brought by Wisconsin citizens against a Delaware-based company for selling a bad insurance policy would probably be removed to Federal court even if Wisconsin-based agents were involved in selling the policies. And the filing of a class action in one State court may lead to the successful removal of a similar case filed in another State on behalf of plaintiffs in that State. The bottom line is that this bill will continue to send the majority of class actions to Federal court. The proponents of this bill have chosen a remedy that goes far beyond the alleged problem. Furthermore, under S. 2062, many cases that are not class actions at all are included in the definition of ``mass action,'' a new term coined by this bill. S. 2062 simply requires that the plaintiff must be seeking damages of more than $75,000 for the case to be considered a mass action and removable to Federal court. This provision unfairly limits State court authority to manage its docket and to consolidate claims in order to more efficiently dispense justice. A particularly troubling result of this bill will be an increase in the workload of the Federal courts. These courts are already overloaded. The Congress has led the way in bringing more and more litigation to the Federal courts, particularly criminal cases. Criminal cases, of course, take precedence in the Federal courts because of the Speedy Trial Act. So the net result of removing virtually all class actions to Federal court will be to delay those cases. There is an old saying with which I'm sure we are all familiar: ``justice delayed is justice denied.'' I hope my colleagues will think about that aphorism before voting for this bill. Think about the real world of Federal court litigation and the very real possibilities that long procedural delays in overloaded Federal courts will mean that legitimate claims may never be heard. One little-noticed aspect of this bill illustrates the possibilities for delay that this bill provides, even to defendants who are not entitled to have a case removed to Federal court under the bill's relaxed diversity jurisdiction standards. Under current law, if a Federal court decides that a removed case should be remanded to State court, that decision is not appealable. The only exception is for civil rights cases removed under the special authority of 28 U.S.C. Sec. 1443. The original version of this bill allowed defendants to immediately appeal a decision by a Federal district court that a case does not qualify for removal. Fortunately, the revised bill now requires such appeals to be decided promptly. It does not, however, do anything about the fact that the lower court may take months or even years to make a decision on the motion to remand. That means that a plaintiff class that is entitled, even under this bill, to have a case heard by a State court may still have to endure years of delay while its remand motion is pending in the Federal district court. Where is the ``fairness'' in that? I plan to offer an amendment, if I even get the chance to address that problem and I hope the bill's sponsors and supporters will give it serious consideration. It is important to remember that this debate is not about resolving questions of Federal law in the Federal courts. Federal question jurisdiction already exists for that. Any case involving a Federal statute can be removed to Federal court under current law. This bill takes cases that are brought in State court solely under State laws passed by State legislatures and throws them into Federal court. This bill is about making it more time-consuming and more costly for citizens of a State to get the redress that their elected representatives have decided they are entitled to if the laws of their state are violated. Diversity jurisdiction in cases between citizens of different States has been with us for our entire history as a Nation. Article III, section 2 of the Constitution provides: ``The judicial Power shall extend . . . to Controversies between Citizens of different States.'' This is the constitutional basis for giving the Federal courts diversity jurisdiction over cases that involved only questions of State law. The very first Judiciary Act, passed in 1789, gave the Federal courts jurisdiction over civil suits between citizens of different States where over $500 was at issue. In 1806, in the case of Strawbridge v. Curtiss, the Supreme Court held that this act required complete diversity between the parties--in all other instances, the Court said, a case based on State law should be heard by the State courts. So this bill changes a nearly 200-year-old practice in this country of preserving the Federal courts for cases involving Federal law or where no defendant is from the State of any plaintiff in a case involving only State law. Why is such a drastic step necessary? Why do we need to prevent State courts from interpreting and applying their own State laws in cases of any size or significance? One argument we hear is that the trial lawyers are extracting huge and unjustified settlements in State courts, which has become a drag on the economy. We also hear that plaintiffs' lawyers are taking the lion's share of judgments or settlements to the detriment of consumers. But a recent empirical study contradicts these arguments. Theodore Eisenberg of Cornell Law School and Geoffrey Miller of NYU Law School recently published the first empirical study of class action settlements. Their conclusions, which are based on data from 1993-2002, may surprise some of the supporters of this bill. First, the study found that attorneys' fees in class action settlements are significantly below the standard 33 percent contingency fee charged in personal injury cases. The average class action attorney's fee is actually 21.9 percent. In addition, the attorneys' fees awarded in class action settlements in Federal court are actually higher than in State court settlements. Attorney fees as a percent of class recovery were found to be between 1 and 6 percentage points higher in Federal court class actions than in State court class actions. A final finding of the study is that there has been no appreciable increase in either the amount of settlements or the amount of attorneys' fees awarded in class actions over the past ten years. The study indicates that there is no crisis here. No explosion of huge judgments. No huge fleecing of consumers by their lawyers. This bill is a solution in search of a problem. It is a great piece of legislation for wrongdoers who would like to put off their day of reckoning by moving cases to courts that are less convenient, slower, and more expensive for those who have been wronged. It is a bad bill for consumers, for State legislatures, and for State courts. This bill seems not to be about class action abuses, but about getting cases into Federal court where it takes longer and is more expensive for plaintiffs to get a judgment. The cumulative effect of this bill is to severely limit State court authority and ultimately limit victims' access to prompt justice. Despite improvements made since the last time the Senate considered this bill, the bill will still place significant barriers for consumers who want to have their cases heard in State court. Remand orders are still appealable, and the mass tort definition does not protect State courts' authority to consolidate cases and manage their dockets more efficiently. All the elements outlined in the bill before us will result in the erosion of State court authority and the delay of justice for our citizens. Therefore, I cannot support this unfair ``Class Action Fairness Act'' bill, and I will vote no. I yield the floor and suggest the absence of a quorum.