Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, this amendment would simply require the Department of Justice to report to the Intelligence Committee and the Judiciary Committee about the use of this new lone-wolf exception to FISA. With this information, Congress will be better able to assess the need for reauthorization as the sunset provision in the bill approaches. I am pleased that the amendment has been agreed to by the sponsors of the bill. I ask unanimous consent that this amendment be agreed to under the previous order.

Mr. FEINGOLD. Thank you, Mr. President. I yield the floor.

Mr. FEINGOLD. Mr. President, I thank the Senator from Arizona for his cooperation in working together to provide this measure of accountability to this important piece of legislation. I yield the floor. I suggest the absence of a quorum.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask the Senator from California to yield me some time so I can speak in support of the amendment.

Mr. FEINGOLD. Mr. President, I agree with the Senator from California that S. 113 is the wrong way to fix the Foreign Intelligence Surveillance Act. The approach taken in S. 113 would eliminate the current requirement in FISA that the individual who is the target of a warrant must be an agent of a foreign power. This means that S. 113 may very well result in FISA serving as a substitute for some of the most important criminal laws we have in this country. Senator Feinstein's permissive presumption amendment would allow the Government to obtain FISA warrants against suspected lone wolf international terrorists without unnecessarily eliminating an essential element of FISA, and that is the agent of a foreign power requirement. FISA, as the Senator from California has very carefully and effectively pointed out, represents an important exception to traditional constitutional restraints on criminal investigations, allowing the Government to gather foreign intelligence information without having probable cause that a crime has been or is going to be committed. I will repeat that. This is something the Government can do without having probable cause that a crime has been or is going to be committed. That is a major exception to our normal understanding about how criminal proceedings should be conducted under our Constitution. The courts have permitted the Government to proceed with surveillance in this country under FISA's lesser standard of suspicion because the power is limited to investigations of foreign powers and their agents. Senator Feinstein ably pointed out the history behind this and the careful balance that Attorney General Griffin Bell discussed at the time, and how important that balance was for such an unusual exception to be made to our rules about criminal proceedings. S. 113 writes out of the statute a key requirement necessary to the lawfulness of intrusive surveillance powers that would otherwise simply be unconstitutional. FISA's own appellate court, the Foreign Intelligence Surveillance Court of Review, discussed in a November 2002 decision why a FISA warrant does not require a showing of probable cause of criminal activity. The court stated that FISA is constitutional in part because it provides ``another safeguard . . . that is, the requirement that there be probable cause to believe the target is acting `for or on behalf of a foreign power.' '' So this is supposed to be about people acting in connection with a foreign power. S. 113, as currently drafted, simply eliminates that safeguard. Even if S. 113 survived constitutional challenge, it would mean that non-U.S. persons could have either electronic surveillance and searches authorized against them using the lesser standards of FISA, even though there is no conceivable foreign intelligence aspect to their case. S. 113 will then likely result in a dramatic increase in the use of FISA warrants in situations that do not justify such extraordinary Government power. I think Senator Feinstein's amendment is a thoughtful and reasonable alternative to make sure that FISA can be used against a lone wolf terrorist, which I commend the Senator from Arizona and the Senator from New York for trying to address. But at the same time her amendment means we can do this without eliminating the important agent of a foreign power requirement. The amendment would create a permissive presumption that if there is probable cause to believe a non-U.S. person is engaged in or preparing to engage in international terrorism, the individual can be considered to be an agent of a foreign power even if the evidence of a connection to a foreign power is not clear. The use of a permissive presumption, rather than eliminating the foreign power requirement, maintains judicial oversight and review on a case- by-case basis on the question of whether the target of the surveillance is an agent of a foreign power. The permissive presumption would permit the FISA judge to decide, in a given case, if the Government has gone too far in requesting a FISA warrant. I want to be clear about one point that apparently came up this morning. I understand the Senator from Arizona argued this morning that this amendment would weaken or impact on the FISA law as a whole. That is just not true. This amendment applies only to the changes made in the bill to address the lone wolf problem. It is a narrow, carefully drafted, very important amendment to this bill. Any concern that the FISA judges would not use their discretion wisely is, I think--as the Senator from California pointed out-- misplaced. What is the reason for any concern whatsoever about the proper use of this provision by judges? In the 23 years that the FISA court has been reviewing FISA applications, they have only declined to issue the warrant on one occasion. In that case, the decision of the court was reversed on appeal. The FISA judges clearly take their responsibility seriously and execute it carefully. The experience of the last two decades shows we can trust them not to the deny FISA applications too hastily. We should also be able to trust them enough to maintain their power to serve as a reasonable check on Government overreaching. We are told that one of the inspirations for this bill was the case of Zacarias Moussaoui, the alleged 20th hijacker. One of the FBI's excuses for not seeking a warrant to search Mr. Moussaoui's computer prior to September 11 was that they could not identify a foreign power or group with which Moussaoui was associated. In other words, they could not meet the agent of a foreign power requirement to get a FISA warrant. In the case of Moussaoui, a warrant application was never even submitted to the FISA court. As Senator Specter pointed out, many legal observers think the FBI simply misread the law, and it could and should have obtained a FISA warrant against Mr. Moussaoui if it had tried. No matter, in any event, Senator Feinstein's amendment would fix the so-called Moussaoui problem just as well as the current bill. The permissive presumption would still ensure that future investigators do not need to show specific evidence of a particular foreign power or group for which the individual was an agent if they have other good evidence that the subject is preparing to engage in international terrorism, as they did in Moussaoui's case, but have not been able to identify the specific agent of a foreign power. At the same time, Senator Feinstein's formulation would put some limit on the Government's ability to use this new power to dramatically extend FISA's reach. If the Government comes to a conclusion that an individual is truly acting on his or her own, then our criminal laws concerning when electronic surveillance and searches can be used, in my view, and I think in the view of many, are more than sufficient. True lone wolves can and should be investigated and prosecuted in our criminal justice system. Under this amendment, the FISA court could presume that any non-U.S. person preparing to engage in international terrorism is an agent of a foreign power. At the time of the initial warrant application, and perhaps even later, this presumption makes sense. It is somewhat difficult to envision a foreigner in the United States planning an international terrorist attack who is not an agent of a foreign power, which includes a terrorist organization. But one can envision a situation where, at the time of a request for a reauthorization, a FISA warrant is made, the Government has now determined that the suspect is truly a lone wolf. In those situations where the person is simply a lone wolf in every sense of the word and is not connected with a foreign power or terrorist organization, FISA should not apply. The Government should then use all the tools of the criminal process because--and this is the key issue--in that circumstance, the foreign intelligence rationale, the entire basis for the creation of a FISA law, that entire rationale for FISA's lesser standard no longer exists. Senator Feinstein's amendment retains FISA's agent of a foreign power requirement, maintains the independence of the FISA court, and preserves judicial oversight of the abuse of the new power. It protects national security by addressing the lone wolf problem, and it does not threaten the constitutional freedoms we cherish. I am grateful to the Senator from California for her leadership role on this important amendment. I strongly urge my colleagues to support this reasonable amendment that will simply make this a much better bill and, frankly, a bill that would cause many of us to feel comfortable supporting the bill. I urge my colleagues who are proponents of this bill to consider how important it is that we have as many Senators as possible support such a bill. This goes right to the heart of the question of whether in times of crisis this Nation is going to get the balance right between civil liberties and our Constitution and the important paramount issue of fighting terrorism. We need as many people supporting this to send a message to the American people that we are getting this right. The Feinstein amendment is a reasonable, modest attempt to achieve that kind of consensus. I urge my colleagues to support it. I thank the Chair. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to call my colleagues' attention to the situation in the Central African country of Burundi, where a remarkable step has been taken to end that country's brutal civil war. Last week, President Pierre Buyoya voluntarily ceded power to Domitien Ndayizeye, who will now lead the country through the second half of a 3-year transitional power-sharing government. This orderly transfer of power, conducted in compliance with the Arusha Accords signed in 2000, is an important symbol of ethnic reconciliation, as a Tutsi President with a Hutu Vice President gives way to a Hutu head of state with a Tutsi Vice President. An African Union force is slated to help provide stability during this transitional period. This is a development to be celebrated, and the United Nations Security Council was right to praise this milestone achievement. But much more needs to be done. Rather than being satisfied with President Ndayizeye's inauguration, the people of Burundi and the international community should seize on this moment as a catalyst for more energetic and focused efforts to bring Burundi out of crisis. A comprehensive cease-fire among all parties to the conflict is still not in place. Little progress has been made to date toward comprehensively reforming the security services to reflect a multiethnic society. Burundi's future will also depend upon increasing respect for basic human rights, ending the climate of impunity in which these rights have been violated, and establishing viable mechanisms for holding those responsible for abuses accountable for their actions. The international community must maintain an engaged policy that both supports these reforms and pressures those who resist them. Most importantly, the international community and the Burundian leadership must take this opportunity to establish a firm relationship between positive developments in the political sphere and the conditions of the Burundian people, who languish, sometimes in grave and consistent insecurity, and often in desperate humanitarian crisis. Abject poverty, a dramatic decline in primary school enrollment, soaring infant mortality rates, and displacement on a massive scale characterize the situation of Burundian society. If we allow paper agreements and political milestones to remain disconnected from concrete improvements for the people of Burundi, we are only empowering the spoilers in this process, and only encouraging the kind of hideous violence that has become all too common in Central Africa. Nine years ago Burundi's neighbor erupted in genocide. Ongoing conflict in the Democratic Republic of the Congo has cost the lives of millions. Crises spill across borders, poisoning the prospects for progress throughout the region, and creating lucrative opportunities for international criminals. Burundi may be small, but its suffering is great, and its capacity to help or hinder efforts to stabilize a vast swathe of Africa should not be underestimated. We know what the consequences of indifference are; we have seen them in the millions dead, displaced, mourning and grieving. For a brief moment, Burundi has captured global attention. We should not look away again; the stakes are too high. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, at 3:45 p.m. on Friday afternoon, a three-judge panel of the United States District Court for the District of Columbia released a long-awaited decision in the case of McConnell v. FEC. That is the lawsuit challenging the constitutionality of the Bipartisan Campaign Reform Act of 2002, sometimes known as the McCain- Feingold bill. Over 80 different plaintiffs participated in the case, which was defended by the Department of Justice and the Federal Election Commission. Six congressional sponsors of the law, Senator John McCain, Senator Olympia Snowe, Senator James Jeffords, Representative Christopher Shays, Representative Marty Meehan, and I, intervened as defendants in the case. A number of commentators and lawyers for the parties have commented that the most important aspect of this decision is that it has finally come down. I agree with that. From the very beginning of our effort to reform the campaign laws over a period of 7 years, we knew that the Supreme Court of the United States would decide the fate of the law. We provided for expedited consideration of any challenge to the law's constitutionality by having a three-judge panel hear the case as the trial court with a direct appeal to the Supreme Court. Discovery and briefing in the case proceeded on a very fast track, and the court heard oral argument on December 4, 2002, an argument which I had a chance to attend in part. At that argument, the chief judge of the panel suggested that the panel would rule by the end of January. It took considerably longer than that, and now we know why. On Friday, the court released over 1,600 pages of opinions. A shifting majority among the three judges upheld some of the most important portions of the law while it struck down some others. Now that the three-judge panel has finally ruled, the Supreme Court can take the case and begin its consideration of the constitutional issues raised by the law. I hope the Court will act quickly, but I also hope it will act carefully and judiciously as, of course, we assume it will. The decision of the Court will shape the conduct of elections and fundraising in this country for many years to come. While the district court opinion will become a mere footnote to history once the Supreme Court rules, I believe it is useful to comment on the decision today because the press coverage of the details of the ruling has been sometimes contradictory, and unfortunately in a number of cases the press reports were simply inaccurate about what had happened with the court decision. This is not surprising given the complexity of the ruling and the length of the opinions. For the benefit of my colleagues, particularly those who supported our long effort to pass reform, I wanted to discuss today what the court did and did not do. The court's ruling was shaped by two different 2-1 majorities. U.S. Circuit Judge Karen Henderson would have struck down much of the law, while U.S. District Judge Colleen Kollar-Kotelly would have upheld most of it. The deciding vote in most cases was U.S. District Judge Richard Leon, who sided with Judge Henderson on some issues and with Judge Kollar-Kotelly on others. The three judges were unanimous on a handful of issues, mostly on some of the minor provisions in the bill, but also on one very significant portion of the soft money ban. Let me start with soft money, especially in light of the headlines that screamed ``soft money ban struck down.'' Those headlines were not correct. Let me start with soft money, which was the core of the reform effort and was dealt with in title I of the McCain-Feingold bill. The court struck down our prohibition on national parties raising soft money. Under this ruling, national party committees may again raise unlimited contributions from unions, corporations, and wealthy individuals. That, of course, assumes that the Supreme Court agrees with this point, which frankly I believe they will not. State parties were never prohibited from raising such money under McCain-Feingold. Each State's fundraising activities are governed by State law. That is quite key to understanding exactly what happened by the ruling. The court left intact, however, the prohibition on the national parties spending soft money on public communications, such as broadcast advertising, television ads, that promotes, supports, attacks, or opposes a Federal candidate. Over the past four election cycles, dating back to the 1996 campaign, both Federal and State parties have spent millions upon millions of dollars of soft money on television ads attacking candidates of the other party. Frankly, it was this practice, the use of soft money for television ads, that more than anything else drove Senator McCain and I, and the other authors and supporters of the bill, to work so hard for 7 years. This court, this district court, upheld the ban on ads being paid for by soft money. The so-called issue ads are the biggest end run around the campaign finance laws out there, and they were the core of what McCain-Feingold is trying to stop. I am pleased to say the district court upheld our efforts in that area. Under this ruling, party committees can raise soft money but they cannot spend it on all those phony issue ads you see on television all throughout the campaigns and about which so many people have complained. They can spend it, however, under this rule, on other activities that Congress determined in BCRA had a significant effect on Federal elections, such as voter registration drives conducted near in time to Federal elections and voter identification and voter registration efforts. In upholding the prohibitions on the parties spending soft money to finance election-related advertising, I firmly believe the basic principle of McCain-Feingold was upheld. The court recognized the corrupting effect of this money and the power of Congress to regulate it when it affects Federal elections. That is a significant finding. Note that the court did not find that the first amendment or free speech rulings or practices restrict or prevent a complete ban on ads paid for by soft money. That was the biggest issue out here in the debate over 7 years, and even this district court agreed with that fundamental principle of McCain-Feingold. When the case goes to the Supreme Court, congressional supporters of the law and the United States will urge the Court to recognize that the corrupting effect of soft money on our political process is not eliminated by simply restricting its use to so-called party-building activities. So there is no question, we hope for an even stronger ruling from the Supreme Court. Furthermore, there is ample evidence, we believe, that the kinds of activities the district court determined can still be financed with soft money do, in fact, have a major impact on Federal elections. The same 2-to-1 majority that struck down the ban on national parties raising soft money also held unconstitutional the prohibition of parties raising soft money for or transferring soft money to advocacy groups. The other 2-to-1 majority upheld the prohibition on State candidates spending money on advertisements that mention Federal candidates and promote, support, attack, or oppose these candidates. Again, not only did the court say that at the Federal level the parties could not buy soft money TV ads, but also the State parties cannot run ads on behalf of Federal candidates using soft money--again, very different from what you might have assumed had you been watching CNN late Friday afternoon. All three judges, however--and I think this is very significant-- uphold the crucial portion of the new law that simply prohibits Federal officeholders and candidates from raising and spending soft money. This is a significant blow to those who wanted to believe when they first heard about this decision that it had somehow restored the status quo of political fundraising and campaign spending in this country. Even Judge Henderson, who ruled against our side on virtually every other matter, rejected most of the new justifications of the new law offered by its proponents. Even she recognized the fact that there is an appearance of corruption created when Members of Congress or other Federal officials seek to raise huge donations from corporations, unions, or wealthy individuals. She upheld this provision under the highest standard of review, strict scrutiny. Today, just like last Thursday, it is still against the law--a criminal violation--for a Member of Congress to call up a union, an individual, or a corporate entity and ask for unlimited campaign contributions. It cannot be done today any more than it could have been done a few days ago. It is important to know that the provision of the law upheld in this part of the court's opinion includes a prohibition not only on Members themselves doing this, raising soft money for purposes of broadcast, but also on entities directly or indirectly established, financed, maintained, or controlled by Federal candidates or officeholders. As a matter of fact, this is a complete prohibition on soft money fundraising by these entities. I misspoke a minute ago saying it only related to broadcast. This prohibition on Federal officeholders and entities directly or indirectly established by them relates to any kind of fundraising for any kind of soft money whatever. Therefore, leadership PACs maintained by Members of Congress may still not raise soft money under this ruling; nor can the congressional campaign committees which are clearly established and controlled by Members of Congress to aid the reelection efforts of themselves and their colleagues. Now, unfortunately the former head of one such committee quickly announced he would begin raising soft money immediately anyway. He might want to get some legal advice first. Although the soft money portion of the court's ruling certainly changes much in the political fundraising landscape, it leaves one very important part of the new regime imposed by the McCain-Feingold bill: Members of Congress and the executive branch must stay out of the soft money game altogether. Especially in this period of uncertainty between now and when the Supreme Court issues its decision, the spectacle of Members of Congress getting out their old soft money Rolodexes and dialing for dollars again would be more than the American people would stand. So I am not only very pleased but relieved that the district court recognized the importance of stopping the part of the soft money system that some of us have referred to as legalized extortion or legalized bribery or, more directly, simply a shakedown. Title II of the McCain-Feingold bill dealt with what we called electioneering communications, the phony issue ads by outside groups that commanded so much attention during the last few election cycles. Here again, the court was divided. It did strike down the primary definition of electioneering communications we had referred to on the floor as the bright line test. Actually, we also referred to it as the Snowe-Jeffords provision. Under that formulation, an ad that ran within 60 days of a general election or 30 days of a primary could be financed only with hard money; that is, only through a PAC set up by the company, union, or group running the ad. Now, a majority of the district court panel believed this definition was overly broad because it would capture a substantial number of ``true issue ads'' as well as those aimed at electioneering. Again, despite the initial erroneous reports, there was more to the decision than that--quite dramatically more. The court upheld a fallback definition which was originally added on the floor by Senator Specter during the debate in 2001. That definition uses language similar to that which we employed in the soft money ban to address phony issue ads run by the parties. So if an ad promotes, supports, attacks, or opposes a candidate, it still must be paid for with hard money. The court also upheld the Wellstone amendment that applied this definition to ads run by advocacy groups in addition to labor unions and for-profit corporations and upheld the disclosure requirements in the law. The definition upheld by the district court actually is not limited to a 30- or 60-day window. So at any time during the election cycle, including today, groups may not use soft money to run ads attacking candidates in this manner. This is very significant. The definition is broader and will very likely cover many more ads in the primary definition of electioneering communications that we passed. The court even threw out a clause included by Senator Specter to attempt to narrow the definition, declaring it made the overall definition too vague. Frankly, I don't know whether this ruling will survive when the Supreme Court rules on the case. What is most interesting here is the majority of the court decided that Congress is not limited to regulating advertisements that use the so-called magic words of express advocacy. Year after year, opponents of McCain-Feingold said you could only limit this to the magic words, vote for or vote against. That is not true under this court's ruling, and that is a major step forward, potentially. It recognizes the Constitution is not a straitjacket leaving the Congress powerless to address clear efforts to evade the law through phony issue ads. In our appeal to the Supreme Court, we will argue that the 30/60 provision drafted by Senators Snowe and Jeffords is constitutionally defensible because it gives groups certainty over what ad is covered and what is not. But either definition is preferable to the current very narrow magic words test that allows a massive evasion of disclosure and source requirements for the attack ads that tend to dominate the airways in the weeks before an election. The court reached decisions on a number of other provisions of the bill. A number of these decisions were unanimous, and I will not take time right now to go through each of them. I ask unanimous consent that a summary of those rulings be printed in the Record at the end of my statement.

Mr. FEINGOLD. Mr. President, in the next few days a decision will be made whether to seek a stay of the district court's decision. I think the arguments for such a stay are strong. The parties have been working under the new campaign finance rules since November of last year. To shift to another system for a few months while the Supreme Court reviews the case only to shift again when the Supreme Court rules, whatever its decision might be, does not make much sense. It would be preferable for a variety of reasons to keep things the way they are now until the Supreme Court makes a final decision. That decision should come in plenty of time for the parties to prepare for the upcoming elections. One of the main arguments for a stay is that in order to put the district court's decision in place, the FEC would almost certainly have to undertake a whole new set of rulemaking proceedings. The FEC worked to put implementing regulations in place in a timely manner, as instructed by the new law. Many of those regulations are not particularly useful under the law established by the district court's decision. In any event, I call on the parties to act with restraint, especially until the courts rule on any requests for a stay. As I mentioned at the outset, we have always known that this case was headed to the Supreme Court. I am pleased that the decision of the three judge panel has come down and that the final stage of this legal process can now begin. I have great confidence in the Department of Justice and in the legal team that is representing the congressional sponsors. They did an extraordinary job in assembling a factual record and laying out the arguments for the law's constitutionality in the district court. These lawyers are acting to defend a legislative product that reflects not only political compromise, but also great care and attention to constitutional principles and the American people's desire for a political system that is based on ideas and not money. I am proud to continue the fight for campaign finance reform in the courts, and I again thank my colleagues for their support in this long effort. I chose to come to the floor because if anybody had read the news accounts on Friday and Saturday, frankly, they would not have any idea of what the actual effect of this ruling was which was, on balance, positive, in favor of campaign finance reform. But we do hope the U.S. Supreme Court will even go further and complete the job. Exhibit 1 Coordionation--A 2-1 majority of the court rejected challenges to the coordination provisions. It held that a challenge to the provision that requires the FEC to issue new regulations was premature. Independent/coordinated party expenditures--By a 3-0 vote, the court struck down the provision of the bill that requires parties to choose once a candidate had been nominated between making independent or 441a(d) expenditures. Millionaire provisions--By a 3-0 vote, the court decided that the plaintiffs lacked standing to challenge the millionaire amendments. Stand by your ad--By a 3-0 vote, the court determined that the candidate plaintiffs do not have standing to challenge the Wyden amendment requiring candidates to personally appear in ads that attack their opponents in order to get the lowest unit rate. Increased contribution limits--By a 3-0 vote, the court ruled that the Adams plaintiffs do not have standing to challenge the increased contributions limits. Minors' contributions--By a 3-0 vote, the court struck down the ban on contributions by minors. ID of sponsors--The court upheld the Durbin amendment requiring more identifying information on the identification of the sponsor or sponsors of a political ad. Disclosure of broadcasting records--By a 3-0 vote, but for differing reasons, the court struck down the Hagel amendment requiring broadcasting stations to maintain and make publicly available records of requests to purchase political advertising time.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask that I be allowed to use such time as I may consume as in morning business.

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

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I will vote no on the nomination of Priscilla Owen to be a judge on the U.S. Court of Appeals for the Fifth Circuit and no on cloture. I'd like to take a moment to explain my decision. There are a number of factors that I believe require us to give this nomination very careful consideration. First, we should consider that judges on our Courts of Appeals have an enormous influence on the law. Whereas decisions of the District Courts are always subject to appellate review, the decisions of the Courts of Appeals are subject only to discretionary review by the Supreme Court. The decisions of the Courts of Appeals are in almost all cases final, as the Supreme Court agrees to hear only a very small percentage of the cases on which its views are sought. that means that the scrutiny that we give to Circuit Court nominees must be greater than that we give to District Court nominees. Another important consideration is the ideological balance of the Fifth Circuit. The Fifth Circuit is comprised of Texas, Louisiana, and Mississippi. The Fifth Circuit contains the highest percentage of minority residents--over 40 percent--of any circuit other than the D.C. Circuit. It is a court that during the civil rights era issued some of the most significant decisions supporting the rights of African American citizens to participate as full members of our society. As someone who believes strongly in freedom, liberty, and equal justice under law, and the important role of the Federal courts to defend these fundamental American principles, I am especially concerned about the make-up of our circuit courts and their approaches to civil rights issues. Even after 8 years of a Democratic President, the Fifth Circuit had twice as many Republican appointees as Democratic appointees. that is because during the last 6 years of the Clinton administration, the Judiciary Committee did not report out a single judge to the Fifth Circuit. And as we all know, that was not for lack of nominees to consider. President Clinton nominated three well-qualified lawyers to the Fifth Circuit--Jorge Rangel, Enrique Moreno, and Alson Johnson. None of these nominees even received a hearing before this Committee. When then-Chairman Leahy held a hearing in July 2001 on the nomination of Judge Clement for a seat on the Fifth Circuit, only a few months after she was nominated, and less than 2 months after Democrats took control of the Senate, it was the first hearing in this committee for a Fifth Circuit nominee since September 1994. Judge Clement, of course, was confirmed later in the year. So, there's a history here, and a special burden on President Bush to consult with our side on nominees for this Circuit. Otherwise, we would simply be rewarding the obstructionism that the President's party engaged in over the last 6 years by allowing him to fill with his choices seats that his party held open for years, even when qualified nominees were advanced by President Clinton. And I say once again, my colleagues on the Republican side bear some responsibility for this situation, and they can help resolve it by urging the administration to address the injustices suffered by so many Clinton nominees. One step in the right direction would be for my Republican colleagues to urge the President to renominate some of those Clinton nominees that never received a hearing or vote in this committee. That includes Clinton nominees to the Fifth Circuit. With that background, let me outline the concerns that have caused me to reach the conclusion that Justice Owen should not be confirmed. Justice Owen has had a successful legal career. She graduated at the top of her class from Baylor University Law School, worked as an associate and partner at the law firm of Andrews and Kurth in Houston, and has served on the Texas Supreme Court since January 1995. These are great accomplishments. But Justice Owen's record as a member of the Texas Supreme Court leads me to conclude that she is not the right person for a position on the Fifth Circuit. I am not convinced that Justice Owen will put aside her personal views and ensure that all litigants before her on the Fifth Circuit received a fair hearing. Her decisions in cases involving consumers' rights, worker's rights, and reproductive rights suggest to me that she would be a judge who would be unable to maintain an open mind and provide all litigants a fair and impartial hearing. Justice Owen has a disturbing record of siding against consumers or victims of personal injury and in favor of business and insurance companies. When the Texas Supreme Court, which is a very conservative and pro-business court, rules in favor of consumers or victims of personal injury, Justice Owen frequently dissents. According to Texas Watch, during the period 1999-2002, Justice Owen dissented almost 40 percent of time in cases in which a consumer prevailed. But in cases where the consumer position has not succeeded, Justice Owen never dissented. At her first hearing, Senator Kennedy and Senator Edwards asked Justice Owen to cite cases in which she dissented from the majority and sided in favor of consumers. Justice Owen could cite only one case, Saenz v. Fidelity Guaranty Ins. Underwriters, 925 S.W. 2d 607, Tex. 1996. But Justice Owen's opinion in this case hardly took a pro- consumer position since it still would have deprived the plaintiff of the entire jury verdict. She did not join Justice Spector's dissent, which would have upheld the jury verdict in favor of Ms. Saenz. Also during that first hearing, Senators Feinstein and Durbin questioned Justice Owen about Provident American Ins. Co. v. Castaneda, 988 S.W. 2d 189, Tex. 1998. In that case, the plaintiff sought damages against a health insurer for denying health care benefits, after the insurer had already provided pre-operative approval for the surgery. Justice Owen, writing for the majority, reversed the jury's verdict in favor of the plaintiff and rejected the plaintiff's claim that the health insurer violated the Texas Insurance Code and the Deceptive Trade Practices Act. At the hearing, Justice Owen defended her opinion by saying that she believed that the plaintiff was seeking extra- contractual damages and that the plaintiff had already received full coverage under the policy and statutory penalties. But, in the words of her colleague, Justice Raul Gonzalez, who wrote a dissent, Justice Owen's opinion ``may very well eviscerate the bad-faith tort as a viable case of action in Texas.'' Id. at 212, Gonzalez, J., joined by Spector, J., dissenting. The cause of action for bad faith is designed to deter insurers from engaging in bad faith practices like denying coverage in the first place. In addition, with respect to several decisions involving interpretation and application of the Texas parental notification law, I am deeply troubled by Justice Owen's apparently ignoring the plain meaning of the statute and injecting her personal beliefs concerning abortion that have no basis in Texas or U.S. Supreme Court law. In 2000, the Texas legislature enacted a parental notification law that allows a minor to obtain an abortion without notification of her parents if she demonstrates to a court that she has complied with one of three ``judicial bypass'' provisions: (1) that she is ``mature and sufficiently well informed'' to make the decision without notification to either of her parents, (2) that notification would not be in her best interest, or (3) that notification may lead to her physical, sexual, or emotional abuse. During Justice Owen's first confirmation hearing, Senator Cantwell questioned Justice Owen about her positions in cases interpreting this law, focusing on Justice Owen's insistence in In re Jane Doe, 19 S.W. 3d 249, 264-65, 2000, Owen, J., concurring, Doe 1 (I)), that teenagers be required to consider ``philosophic, social, moral, and religious'' arguments before seeking an abortion. In her opinion, Justice Owen cited the Supreme Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 1992, to support her contention that states can require minors to consider religious views in their decision to have an abortion. But, as Senator Cantwell noted, Casey in no way authorizes States to require minors to consider religious arguments in their decision on whether to have an abortion. Upon this further questioning, Justice Owen then said that she was referring to another Supreme Court case, H.L. v. Matheson, 450 U.S. 398, 1981, even though her opinion only cited Casey for this proposition. And even Matheson does not say that minors can be required by state law to consider religious arguments. It is my view that Justice Owen was going beyond not only a plain reading of the Texas statute, but Supreme Court case law, and inappropriately injecting her own personal views to make it more difficult for a minor to comply with the statute and obtain an abortion. I was also not satisfied with Justice Owen's responses to my questions about bonuses to Texas Supreme Court law clerks. I asked her at the hearing whether she saw any ethical concerns with allowing law clerks to receive bonuses from their prospective employers during their clerkships. I also explored the topic further with her in followup written questions. Justice Owen stated repeatedly in her written responses to my questions that she is not aware of law clerks actually receiving bonuses while they were employed by the Court. She reaffirmed that testimony in her second hearing. This seems implausible given the great amount of publicity given to an investigation pursued by the Travis County Attorney of exactly that practice and the well publicized modifications to the Texas Supreme Court's rules that resulted from that investigation and the accompanying controversy. Even more disturbing, Justice Owen took the position, both at the first hearing and in her responses to written questions, that because the Texas Supreme Court Code of Conduct requires law clerks to recuse themselves from matters involving their prospective employers, there really is no ethical concern raised by law clerks accepting bonuses while employed with the Court. I disagree. It is not sufficient for law clerks to recuse themselves from matters involving their prospective employers if they have received thousands of dollars in bonuses while they are working for the court. The appearance of impropriety and unfairness that such a situation creates is untenable. As I understand it, the federal courts have long prohibited federal law clerks both from receiving bonuses during their clerkships and from working on cases involving their prospective employers. I'm pleased that the Texas Supreme Court finally recognized this ethical problem and changed its code of conduct for clerks. Justice Owen, in contrast, seems intent on defending the prior, indefensible, practice. Finally, I want to note the unusual nature of this particular nomination. Unlike so many nominees during the Clinton years, Justice Owen was considered in the Judiciary Committee under Senator Leahy's leadership last year. She had a hearing, and she had a vote. Her nomination was rejected. This is the first time in history that a Circuit nominee who was formally rejected by the Committee, or the full Senate for that matter, has been renominated by the same President to the same position. I do not believe that defeated judicial nominations should be reconsidered like legislation that is not enacted. After all, legislation can be revisited after it is enacted. If Congress makes a mistake when it passes a law, it can fix that mistake in subsequent legislation. Judicial appointments are for life. Confirmations cannot be taken back or fixed. A vote to confirm a nominee is final. A vote to reject that nominee should be final as well. For the President to renominate a defeated nominee and the Senate to reconsider her simply because of the change of a few seats in an election cheapens the nomination process and the Senate's constitutional role in that process. I believe Justice Owen is bright and accomplished. But I sincerely believe that based on her judicial record, Justice Owen is not the right choice for this position. I wish her well in her continued work on the Texas Supreme Court, and I hope the President will put forward a nominee for this circuit who the committee can have confidence will enforce the law fairly and impartially to all litigants.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I want to take a moment to comment on Governor Rod Blagojevich's recent decision to continue the moratorium on executions in Illinois initiated by former Governor George Ryan. The leadership we have now seen from two successive Illinois Governors--one Republican and one Democrat--sends the right message for the Nation. This is not a partisan issue. All Americans who value fairness and justice can agree that executions should not take place--in Illinois or elsewhere in the Nation--under a flawed death penalty system, a system that risks executing the innocent. Three years ago, Governor Ryan, a death penalty supporter, made national headlines when he was the first Governor in the Nation to place a moratorium on executions. He did so after considering irrefutable evidence that the system in Illinois risks executing the innocent. Since the death penalty was reinstated in Illinois in 1977, Illinois had executed 12 people. But, during this same time, another 13 death row inmates were found to be innocent and to have been wrongfully sentenced to death. Governor Ryan did not stop there. He created an independent, blue ribbon commission, including former U.S. Attorney Thomas Sullivan, one of our former colleagues, Senator Paul Simon, and lawyer and novelist Scott Turow. He instructed the commission, composed of death penalty proponents and opponents, to review the State's death penalty system and to advise him on how to reduce the risk of executing the innocent and to ensure fairness in the system. After an exhaustive 2-year study, the commission issued a comprehensive report and set forth 85 recommendations for reform of the Illinois death penalty system. These recommendations address difficult issues like inadequate defense counsel, executions of the mentally retarded, coerced confessions, and the problem of wrongful convictions based solely on the testimony of a jailhouse snitch or a single eyewitness. The commission's work is the first and, so far, only comprehensive review of a death penalty system undertaken by a State or Federal Government in the modern death penalty era. Earlier this year, the Illinois legislature responded with a bill that included some of the recommendations of the commission. Governor Blagojevich, however, rightly reviewed the legislation and determined that the bill did not go far enough. And last week, he concluded that executions should not resume. But, the series of mistakes that led to a moratorium are not unique to Illinois. Death penalty systems across the country are fraught with errors and the risk that an innocent person may be condemned to die. There have been over 800 executions in the United States in the modern death penalty era. During that same period, 107 people who were sentenced to death were later exonerated. That means that for approximately every eight persons executed, an innocent person has been wrongly condemned to die. Evidence that race plays a role in who is sentenced to death continues to mount. A recent report on race and the death penalty released last week by Amnesty International tells us that while African Americans comprise 12 percent of the U.S. population, they are more than 40 percent of the current death row population and one in three of those executed since 1977. The U.S. could soon carry out the 300th execution of an African American inmate since executions resumed in 1977. The report also highlighted that 80 percent of people executed in the modern death penalty era in the U.S. were executed for murders involving white victims, even though blacks and whites are murder victims in almost equal numbers in our society. We should all be startled by this statistic. There is something particularly insidious, particularly un-American about racial discrimination in the application of the death penalty. A system that treats people differently in administering the ultimate punishment based on their race or the race of the victim is immoral. In the face of these and other startling pieces of evidence that the death penalty is broken, our Nation is not, as it should be, ceasing or slowing the use of capital punishment. Instead, executions are being carried out at an alarming pace. Already this year, 28 people have been executed, and over the last 6 years, the average annual number of executions is well above that of previous years in the modern death penalty era. In 1999 alone, 99 people were executed in America. It is my hope that we do not break any records this year. With an eight-to-one executed-to-exonerated ratio, however, we are clearly in a race--a race against time. Because with 107 death row inmates exonerated to date, I do not think any American can be sure that an innocent person has not been executed in this country, and we most certainly cannot guarantee that it will never happen. We must suspend executions and study the flaws in the death penalty system. I have introduced the National Death Penalty Moratorium Act, which would place a moratorium on Federal executions and call on the States to do the same, while an independent, blue ribbon commission conducts a thorough study of the flaws in the system. As public concern about the accuracy and fairness of the use of the death penalty deepens, I commend Governor Blagojevich for taking this opportunity to continue Illinois' commitment to justice and fairness. Governor Blagojevich did the right thing last week when he decided to continue the death penalty moratorium in Illinois. We in the Senate have a unique opportunity to look to the State of Illinois as a model for the Nation in ensuring fairness in the Federal death penalty system. I urge my colleagues to co-sponsor the National Death Penalty Moratorium Act. The time for a moratorium is now.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, as millions of public school students and teachers around the country prepare to complete their first school year under the No Child Left Behind Act, NCLB, I am introducing a bill that would help to return a measure of local control that was taken from school districts and States by its enactment last year. I am pleased to be joined in this effort by Senators Jeffords, Dayton, and Leahy. I have heard a lot of concern from my constituents about various aspects of the President's education bill. Following the enactment of the bill last year, the drumbeat of concern has continued to reverberate throughout my State, and has gotten even louder, as students, teachers, parents, administrators, school counselors and social workers, and others are learning first-hand about the effect of the NCLB. I strongly support maintaining local control over decisions affecting our children's day-to-day classroom experiences. I also believe that the Federal Government has an important role to play in supporting our State educational agencies and local school districts as they carry out their most important responsibility--the education of our children. I voted against the President's education bill in large part because of the new annual testing mandate for students in grades 3-8. While I agree that there should be a strong accountability system in place to ensure that public school students are making progress, I strongly oppose over-testing students in our public schools. I agree that some tests are needed to ensure that our children are keeping pace, but taking time to test students has to take a back seat to taking the time to teach students in the first place. I have heard a lot about these new annual tests from the people of Wisconsin, and their response has been almost universally negative. My constituents are concerned about this additional layer of testing for many reasons, including the cost of developing and implementing these tests, the loss of teaching time every year to prepare for and take the tests, and the extra pressure that the tests will place on students, teachers, schools, and school districts. I share my constituents' concerns about this new Federal mandate. I find it interesting that proponents of the NCLB say that it will return more control to the States and local school districts. In my view, however, this massive new Federal testing mandate runs counter to the idea of local control. Many States and local school districts around the country, including Wisconsin, already have comprehensive testing programs in place. The Federal Government should leave decisions about the frequency of using high quality assessments to measure and increase student academic achievement up to the States and local school districts that bear the responsibility for educating our children. Every State and every school district is different. A uniform testing policy may not be the best approach. I have heard from many education professionals in my State that this new testing requirement is a waste of money and a waste of time. These people are dedicated professionals who are committed to educating Wisconsin's children, and they don't oppose testing. I think we can all agree that testing has its place. What they oppose is the magnitude of testing that is required by this law. Beginning in the 2005-2006 school year, the NCLB will pile more tests on our Nation's public school students. And of course, when those tests are piled on students, they burden our teachers as well, because teachers must spend more and more time preparing students to take these exams. This kind of teaching, sometimes called ``teaching to the test,'' is becoming more and more prevalent in our schools as testing has become increasingly common. The dedicated teachers in our classrooms will now be constrained by teaching to yet more tests, instead of being able to use their own judgment about what subject areas the class needs to spend extra time studying. This additional testing time could also reduce the opportunity for teachers to create and implement innovative learning experiences for their students. Teachers in my State are concerned about the amount of time that they will have to spend preparing their students to take the tests and administering the tests. They are concerned that these additional tests will disrupt the flow of education in their classrooms. One teacher said the preparation for the tests Wisconsin already requires in grades 3, 4, 8, and 10 can take up to a month, and the administration of the test takes another week. That is five weeks out of the school year. And now the Federal Government is requiring teachers to take a huge chunk out of instruction time each year in grades 3-8. In my view, and in the view of the people of my state, this time can be better spent on regular classroom instruction. The legislation that I am introducing today, the Student Testing Flexibility Act of 2003, would give States and local school districts that have demonstrated academic success the flexibility to apply to waive the new annual testing requirements in the NCLB. States and school districts with waivers would still be required to administer high quality tests to students in, at a minimum, reading or language arts and mathematics at least once in grades 3-5, 6-9, and 10-12 as required under the law. This bill would allow States and school districts that meet the same specific accountability criteria outlined for school-level excellence under the State Academic Achievement Award Program to apply to the Secretary of Education for a waiver from the new annual reading or language arts and mathematics tests for students in grades 3-8. The waiver would be for a period of three years and would be renewable, so long as the state or school district meets the criteria. To qualify for the waiver, the State or school district must have significantly closed the achievement gap among a number of subgroups of students as required under Title I, or must have exceeded their adequate yearly progress, AYP, goals for two or more consecutive years. The bill would require the Secretary to grant waivers to states or school districts that meet these criteria and apply for the waiver. Individual districts in states that have waivers would not be required to apply for a separate waiver. The Federal Government should not impose an additional layer of testing on states that are succeeding in meeting or exceeding their AYP goals or on closing the achievement gap. Instead, we should allow those States that have demonstrated academic success to use their share of Federal testing money to help those schools that need it the most. The bill I am introducing today would do just that by allowing states with waivers to retain their share of the Federal funding appropriated to develop and implement the new annual tests. These important dollars would be used for activities that these States deem appropriate for improving student achievement at individual public elementary and secondary schools that have failed to make AYP. I am pleased that this legislation is supported by the American Association of School Administrators, the National PTA, the National Association of Elementary School Principals, the National Association of Secondary School Principals, the School Social Work Association of America, the Wisconsin Department of Public Instruction, the Wisconsin Education Association Council, the Wisconsin Association of School Boards, the Milwaukee Teachers' Education Association, and the Wisconsin School Administrators Alliance, which includes the Association of Wisconsin School Administrators, the Wisconsin Association of School District Administrators, the Wisconsin Association of School Business Officials, and the Wisconsin Council for Administrators of Special Services. While this bill focuses on the over-testing of students in our public schools, I would like to note that my constituents have raised a number of other concerns about the NCLB that I hope will be addressed by Congress. My constituents are concerned about, among other things, the new AYP requirements, the effect that the Act will have on rural school districts, and about finding the funding necessary to implement all of these provisions of this new law. I share these concerns. I regret that, for the second year in a row, the President's budget request did not fully fund NCLB requirements and failed to provide any funding to crucial programs such as rural education and school counseling. If we are to truly leave no child behind, we must provide adequate funding for programs such as Title I, special education and professional development in order to ensure that all students have the means to succeed. To do less sets up some of our most vulnerable students for failure. I hope that my bill, the Student Testing Flexibility Act, will help to focus attention on the perhaps unintended consequences of the ongoing implementation of the President's education bill for states, school districts, and individual schools, teachers, and students. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, as millions of public school students and teachers around the country prepare to complete their first school year under the No Child Left Behind Act, NCLB, I am introducing a bill that would help to return a measure of local control that was taken from school districts and States by its enactment last year. I am pleased to be joined in this effort by Senators Jeffords, Dayton, and Leahy. I have heard a lot of concern from my constituents about various aspects of the President's education bill. Following the enactment of the bill last year, the drumbeat of concern has continued to reverberate throughout my State, and has gotten even louder, as students, teachers, parents, administrators, school counselors and social workers, and others are learning first-hand about the effect of the NCLB. I strongly support maintaining local control over decisions affecting our children's day-to-day classroom experiences. I also believe that the Federal Government has an important role to play in supporting our State educational agencies and local school districts as they carry out their most important responsibility--the education of our children. I voted against the President's education bill in large part because of the new annual testing mandate for students in grades 3-8. While I agree that there should be a strong accountability system in place to ensure that public school students are making progress, I strongly oppose over-testing students in our public schools. I agree that some tests are needed to ensure that our children are keeping pace, but taking time to test students has to take a back seat to taking the time to teach students in the first place. I have heard a lot about these new annual tests from the people of Wisconsin, and their response has been almost universally negative. My constituents are concerned about this additional layer of testing for many reasons, including the cost of developing and implementing these tests, the loss of teaching time every year to prepare for and take the tests, and the extra pressure that the tests will place on students, teachers, schools, and school districts. I share my constituents' concerns about this new Federal mandate. I find it interesting that proponents of the NCLB say that it will return more control to the States and local school districts. In my view, however, this massive new Federal testing mandate runs counter to the idea of local control. Many States and local school districts around the country, including Wisconsin, already have comprehensive testing programs in place. The Federal Government should leave decisions about the frequency of using high quality assessments to measure and increase student academic achievement up to the States and local school districts that bear the responsibility for educating our children. Every State and every school district is different. A uniform testing policy may not be the best approach. I have heard from many education professionals in my State that this new testing requirement is a waste of money and a waste of time. These people are dedicated professionals who are committed to educating Wisconsin's children, and they don't oppose testing. I think we can all agree that testing has its place. What they oppose is the magnitude of testing that is required by this law. Beginning in the 2005-2006 school year, the NCLB will pile more tests on our Nation's public school students. And of course, when those tests are piled on students, they burden our teachers as well, because teachers must spend more and more time preparing students to take these exams. This kind of teaching, sometimes called ``teaching to the test,'' is becoming more and more prevalent in our schools as testing has become increasingly common. The dedicated teachers in our classrooms will now be constrained by teaching to yet more tests, instead of being able to use their own judgment about what subject areas the class needs to spend extra time studying. This additional testing time could also reduce the opportunity for teachers to create and implement innovative learning experiences for their students. Teachers in my State are concerned about the amount of time that they will have to spend preparing their students to take the tests and administering the tests. They are concerned that these additional tests will disrupt the flow of education in their classrooms. One teacher said the preparation for the tests Wisconsin already requires in grades 3, 4, 8, and 10 can take up to a month, and the administration of the test takes another week. That is five weeks out of the school year. And now the Federal Government is requiring teachers to take a huge chunk out of instruction time each year in grades 3-8. In my view, and in the view of the people of my state, this time can be better spent on regular classroom instruction. The legislation that I am introducing today, the Student Testing Flexibility Act of 2003, would give States and local school districts that have demonstrated academic success the flexibility to apply to waive the new annual testing requirements in the NCLB. States and school districts with waivers would still be required to administer high quality tests to students in, at a minimum, reading or language arts and mathematics at least once in grades 3-5, 6-9, and 10-12 as required under the law. This bill would allow States and school districts that meet the same specific accountability criteria outlined for school-level excellence under the State Academic Achievement Award Program to apply to the Secretary of Education for a waiver from the new annual reading or language arts and mathematics tests for students in grades 3-8. The waiver would be for a period of three years and would be renewable, so long as the state or school district meets the criteria. To qualify for the waiver, the State or school district must have significantly closed the achievement gap among a number of subgroups of students as required under Title I, or must have exceeded their adequate yearly progress, AYP, goals for two or more consecutive years. The bill would require the Secretary to grant waivers to states or school districts that meet these criteria and apply for the waiver. Individual districts in states that have waivers would not be required to apply for a separate waiver. The Federal Government should not impose an additional layer of testing on states that are succeeding in meeting or exceeding their AYP goals or on closing the achievement gap. Instead, we should allow those States that have demonstrated academic success to use their share of Federal testing money to help those schools that need it the most. The bill I am introducing today would do just that by allowing states with waivers to retain their share of the Federal funding appropriated to develop and implement the new annual tests. These important dollars would be used for activities that these States deem appropriate for improving student achievement at individual public elementary and secondary schools that have failed to make AYP. I am pleased that this legislation is supported by the American Association of School Administrators, the National PTA, the National Association of Elementary School Principals, the National Association of Secondary School Principals, the School Social Work Association of America, the Wisconsin Department of Public Instruction, the Wisconsin Education Association Council, the Wisconsin Association of School Boards, the Milwaukee Teachers' Education Association, and the Wisconsin School Administrators Alliance, which includes the Association of Wisconsin School Administrators, the Wisconsin Association of School District Administrators, the Wisconsin Association of School Business Officials, and the Wisconsin Council for Administrators of Special Services. While this bill focuses on the over-testing of students in our public schools, I would like to note that my constituents have raised a number of other concerns about the NCLB that I hope will be addressed by Congress. My constituents are concerned about, among other things, the new AYP requirements, the effect that the Act will have on rural school districts, and about finding the funding necessary to implement all of these provisions of this new law. I share these concerns. I regret that, for the second year in a row, the President's budget request did not fully fund NCLB requirements and failed to provide any funding to crucial programs such as rural education and school counseling. If we are to truly leave no child behind, we must provide adequate funding for programs such as Title I, special education and professional development in order to ensure that all students have the means to succeed. To do less sets up some of our most vulnerable students for failure. I hope that my bill, the Student Testing Flexibility Act, will help to focus attention on the perhaps unintended consequences of the ongoing implementation of the President's education bill for states, school districts, and individual schools, teachers, and students. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I will vote no on the nomination of Jeffrey Sutton to be a judge on the U.S. Court of Appeals for the Sixth Circuit. I'd like to take a moment to explain my decision. I have concluded that I cannot support the nomination of Mr. Sutton because I am not convinced that he will give all those who appear before him a fair and impartial hearing. I am greatly troubled by Mr. Sutton's record of handling cases that have resulted in the curtailment of important civil rights, environmental, and other protections. Mr. Sutton has filed amicus briefs that argued for limiting Congress' authority to enact laws to protect the rights of the disabled, women, the elderly, the poor, and racial or ethnic minorities, as well as laws critical to protecting the environment. These cases resulted in some of the most notable Supreme Court decisions of the last decade that have restricted the ability of Congress to protect the rights of Americans and the environment. Now, at his confirmation hearing, Mr. Sutton repeatedly defended his involvement in these cases by stating that he was simply doing his job of zealously representing his client. I appreciate this argument to some extent, especially during his tenure as State Solicitor of Ohio. But my concerns remain because I know that once he went into private practice, he certainly had the ability to choose whether to accept clients and inject himself into cases. Moreover, the purpose of amicus briefs, which Mr. Sutton filed while in both the Solicitor's office and private practice, is not to defend a client against litigation or to seek redress on behalf of that client. It is, as we know, an opportunity for a third party to inject an opinion into a case for which the third party has no immediate interest. In significant states' rights case after case, Mr. Sutton consistently sought out cases in which he could argue for limiting the role of Congress in ensuring constitutional protections for Americans. Furthermore, it seems as though this is a personal crusade for Mr. Sutton. Outside of his role as a lawyer representing clients, he took time to articulate his personal view that Congress should be restrained in its effort to protect civil rights and the environment. Through his involvement with the Federalist Society, including serving as an officer of its Separation of Powers and Federalism practice group, and his writings and statements, Mr. Sutton has said that he ``believes in this stuff'' and is ``on the lookout'' for cases where he can raise federalism issues. I am concerned about this pattern of arguments, writings, and statements that challenge laws Congress has worked so hard to advance those that would safeguard our precious wetlands and natural habitats and fight discrimination of any and every kind. We cannot reasonably expect to one day eliminate discrimination in this country if we confirm nominees like Mr. Sutton, who seem to be ready to turn back the clock on civil rights through the application of a dry but extremely consequential federalism doctrine, to one of the most important courts in the nation. Finally, I want to add that I was troubled by Mr. Sutton's response to one of my questions. In answering to a question about congressional authority for enacting a Federal environmental law, he said that the case involved statutory interpretation and that he simply argued that the Court need not reach the constitutional question. I later reviewed the brief and confirmed that six out of ten pages of his brief, in fact, focused on the constitutionality of the Federal environmental regulation. I confronted him with this fact in a followup question, and he continued to insist that the argument he made was not unusual. I do not believe that is the case. Mr. Sutton himself filed an amicus brief in another case urging ``constitutional avoidance'' without making such an extensive argument against the constitutionality of the statute. I don't like voting against judicial nominees. This was a difficult decision for me because I do think that Mr. Sutton made an effort to address the Committee's concerns, in contrast to some other nominees who have come before us. I understand that President Bush has the right to nominate whomever he wants to the federal bench. But the Senate is not obligated to let the President's nominees sail through, as if there were no checks and balances, no constitutional requirement of advise and consent. As much as it is our duty to fill vacancies in the Federal judiciary, it is also our duty to give great and searching scrutiny to those nominees who have a record that calls into question their ability to give all those litigants who would appear before the nominees a fair and impartial hearing. I am more than pleased to vote to confirm judicial nominees that are fair-minded and supported by a consensus of members, and, once again, I urge the President to speed up the nominations process by sending such nominees to the Senate. I do not believe that Mr. Sutton is such nominee. He is a bright and accomplished attorney, but he is not the right person for this seat on the Sixth Circuit Court of Appeals.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, the tragic events of September 11, 2001, and the ongoing military action in Iraq have changed the way that our country thinks about defense policy, including about how we protect our citizens here at home. For that reason, it is vitally important that we fully implement section 1403 of Public Law 107-314, the Bob Stump National Authorization Act for Fiscal Year 2003, which requires the Secretary of Defense to establish an additional 23 Weapons of Mass Destruction Civil Support Teams, WMD-CSTs, and that at least one team be located in each State and territory of the United States. WMD-CSTs are made up of 22 full-time National Guard personnel who are specially trained and equipped to deploy and assess suspected nuclear, chemical, biological, or other threats in support of local first responders. There are currently 32 full-time and 23 part-time WMD-CSTs across the country. Chemical, biological, and other threats present new challenges to our military and to local responders. The WMD-CSTs play a vital role in assisting local first responders in investigating and combating these new threats. The September 11 terrorist attacks, and the terror alerts issued by the Department of Homeland Security, emphasize the need to have full-time WMD-CSTs in each State. As the events of September 11 so clearly and tragically demonstrated, local first responders are on the front lines of combating terrorism and responding to other large-scale incidents. As we rethink the security needs of our country, we should support the creation of an additional 23 full-time WMD-CSTs as soon as possible. Establishing these additional full-time teams will improve the overall capability of Wisconsin and the other 18 States and 4 territories with part-time teams to prepare for and respond to potential threats to the future. In light of the tragic events of September 11, the ongoing threat of terrorist activities, and the military action in Iraq, the presence of at least one WMD-CST in each State is all the more imperative. The provisions included in last year's Defense authorization bill represent an important step forward in the effort to establish WMD-CSTs in each State and territory. My bill would build on this progress by including a deadline by which these teams have to be established and providing the resources necessary to staff, equip, train, and operate these teams. The legislation that I introduce today, the Weapons of Mass Destruction Civil Support Team Implementation Act of 2003, would require the Secretary of Defense to fully implement section 1403 by September 30, 2004. The costs associated with setting up these new teams would be paid for by an across-the-board cut to the fiscal year 2004 procurement account. I am pleased to be joined in this effort by the Senator from Vermont, Mr. Leahy, the Senator from Nevada, Mr. Reid, the Senator from Nebraska, Mr. Hagel, the Senator from South Dakota, Mr. Johnson, the Senator from Connecticut, Mr. Lieberman, the Senator from Maryland, Mr. Sarbanes, the Senator from Connecticut, Mr. Dodd, the Senior Senator from Wisconsin, Mr. Kohl, and the Senator from Vermont, Mr. Jeffords. The terrorist attacks and the subsequent mobilization of tens of thousands of National Guardsmen and reservists, and the activation of hundreds of thousands of guardsmen and reservists for the military campaign in Iraq, also underscore the need to provide adequate resources for and to ensure full-time manning of the National Guard. As we move to establish at least one 22-member WMD-CST in each State, we should also allocate the necessary resources to ensure adequate National Guard personnel end-strengths to provide for full-time manning and for the additional personnel necessary for these new teams. For that reason, our bill would also authorize an additional 506 full-time National Guard positions to man these new teams. Given the important role that the men and women of the National Guard play in our ongoing missions at home and abroad, we should ensure that the establishment of these important teams does not put at risk full- time manning in other vital areas of the National Guard's mission. It is important that the additional WMD-CSTs are established as soon as possible. I ask unanimous consent that the text of my bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, the tragic events of September 11, 2001, and the ongoing military action in Iraq have changed the way that our country thinks about defense policy, including about how we protect our citizens here at home. For that reason, it is vitally important that we fully implement section 1403 of Public Law 107-314, the Bob Stump National Authorization Act for Fiscal Year 2003, which requires the Secretary of Defense to establish an additional 23 Weapons of Mass Destruction Civil Support Teams, WMD-CSTs, and that at least one team be located in each State and territory of the United States. WMD-CSTs are made up of 22 full-time National Guard personnel who are specially trained and equipped to deploy and assess suspected nuclear, chemical, biological, or other threats in support of local first responders. There are currently 32 full-time and 23 part-time WMD-CSTs across the country. Chemical, biological, and other threats present new challenges to our military and to local responders. The WMD-CSTs play a vital role in assisting local first responders in investigating and combating these new threats. The September 11 terrorist attacks, and the terror alerts issued by the Department of Homeland Security, emphasize the need to have full-time WMD-CSTs in each State. As the events of September 11 so clearly and tragically demonstrated, local first responders are on the front lines of combating terrorism and responding to other large-scale incidents. As we rethink the security needs of our country, we should support the creation of an additional 23 full-time WMD-CSTs as soon as possible. Establishing these additional full-time teams will improve the overall capability of Wisconsin and the other 18 States and 4 territories with part-time teams to prepare for and respond to potential threats to the future. In light of the tragic events of September 11, the ongoing threat of terrorist activities, and the military action in Iraq, the presence of at least one WMD-CST in each State is all the more imperative. The provisions included in last year's Defense authorization bill represent an important step forward in the effort to establish WMD-CSTs in each State and territory. My bill would build on this progress by including a deadline by which these teams have to be established and providing the resources necessary to staff, equip, train, and operate these teams. The legislation that I introduce today, the Weapons of Mass Destruction Civil Support Team Implementation Act of 2003, would require the Secretary of Defense to fully implement section 1403 by September 30, 2004. The costs associated with setting up these new teams would be paid for by an across-the-board cut to the fiscal year 2004 procurement account. I am pleased to be joined in this effort by the Senator from Vermont, Mr. Leahy, the Senator from Nevada, Mr. Reid, the Senator from Nebraska, Mr. Hagel, the Senator from South Dakota, Mr. Johnson, the Senator from Connecticut, Mr. Lieberman, the Senator from Maryland, Mr. Sarbanes, the Senator from Connecticut, Mr. Dodd, the Senior Senator from Wisconsin, Mr. Kohl, and the Senator from Vermont, Mr. Jeffords. The terrorist attacks and the subsequent mobilization of tens of thousands of National Guardsmen and reservists, and the activation of hundreds of thousands of guardsmen and reservists for the military campaign in Iraq, also underscore the need to provide adequate resources for and to ensure full-time manning of the National Guard. As we move to establish at least one 22-member WMD-CST in each State, we should also allocate the necessary resources to ensure adequate National Guard personnel end-strengths to provide for full-time manning and for the additional personnel necessary for these new teams. For that reason, our bill would also authorize an additional 506 full-time National Guard positions to man these new teams. Given the important role that the men and women of the National Guard play in our ongoing missions at home and abroad, we should ensure that the establishment of these important teams does not put at risk full- time manning in other vital areas of the National Guard's mission. It is important that the additional WMD-CSTs are established as soon as possible. I ask unanimous consent that the text of my bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to offer my sincere thanks to the men and women of the U.S. Armed Forces and their families. Last October, I voted against the resolution authorizing the use of force in Iraq and believe it was right that in recent months the country debated the wisdom of using military action against Iraq at this time. But the military action that is now underway unites us as we focus on our ongoing support for our troops. I am confident in their abilities, and I hope for their safe and quick return to their families. Even more so now that this action has begun, my thoughts, and the thoughts of all Americans, are with our service men and women, and with their families. The dedicated men and women of our military spend time away from their homes and families in different parts of the country and the world, and are placed into harm's way in order to protect the American people and our way of life. We owe a huge debt of gratitude to all our soldiers, sailors, airmen, marines, and members of the Coast Guard for their selfless service. These brave individuals have volunteered to place themselves into harm's way on our behalf. Too many of them have made the ultimate sacrifice on the battlefields of Iraq. Many others have been injured. Some have been taken prisoner by our adversaries, while others remain unaccounted for. We honor the memory of those who have given their lives and pray for their families, we wish a speedy recovery to the injured, call for the prompt and safe release of those taken prisoner, and call for an accurate accounting for those listed as missing. Each person serving in our military has his or her own story and reasons for enlisting. All of them are brave, dedicated men and women who have made tremendous personal sacrifices on our behalf. Young men and women who at this time last year were looking forward to their senior proms and high school graduations are now half way across the world protecting our country. Parents who a year ago worried if their children would make their curfews now fear for their safety in a far off land. Our thoughts are with these brave young men and women as we see and hear reports of their acts of heroism and patriotism. One such brave young man is Petty Officer Third Class Scott Wickland of Spooner, WI. This 20-year-old sailor, who is serving aboard the USS Constellation in the Persian Gulf, was an integral part of the April 1 rescue of two Navy pilots whose plane ended up in the water after a suspected malfunction while taxiing on Constellation's flight deck. It was Petty Officer Wickland's job to be lowered into the water from a rescue helicopter and to swim out to the pilots and make sure they were brought aboard the helicopter and then returned to the carrier. All three returned to the Constellation safely. This story is all the more poignant because Petty Officer Wickland's uncle, his mother Mary's 20-year-old brother, drowned just a year before Scott was born. This accident affected Mary Wickland deeply, and she named her son Scott Daniel in memory of her brother, Daniel Osborne. She also saw to it that all of her children learned how to swim. More than two decades later, Petty Officer Wickland used his swimming skills to save two lives. Petty Officer Wickland and his fellow military personnel represent the best among us, and serve as examples of the dedication to others to which all of us should aspire. MAJ Kevin G. Nave, a former resident of Port Washington, WI, was another example of the best whom America has to offer. Major Nave, who was assigned to the 3rd Battalion, 5th Marine Regiment, 1st Marine Division, Camp Pendleton, CA, was tragically killed on March 26 in a vehicle accident in Iraq. He leaves behind a wife, two young children, and many other grieving family members and friends. Major Nave and his family lived in Port Washington for about 3 years prior to his transfer to Camp Pendleton last year. While in Wisconsin, Major Nave served as an inspector instructor with Fox Company, 2nd Battalion of the 24th Marine Combat Infantry unit. In addition, he served his local community as an adviser to the Southeast Wisconsin Young Marines, a coordinator for the Marine Corps Toys for Tots program, a member of the Milwaukee Armed Services Committee, and as a Marine community outreach coordinator for area schools. Friends say that he loved his family, being a marine, and his Harley-Davidson motorcycle. He organized the first local Armed Forces Week Harley Ride last year, and he and his fellow service men and women will be honored following this year's event. I extend my deepest sympathy to the Nave family and to their friends in Port Washington and elsewhere. I also extend my best wishes for a speedy recovery to those who have been injured while serving in the Persian Gulf. LT Terence W. Bacon of Allenton, WI, was one of the members of the 101st Airborne Division's 1st Brigade injured at Camp Pennsylvania, Kuwait, on March 22. He is currently recovering from the wounds he sustained in this incident. SP Patrick McDermott, who was called to active duty as a member of the Madison-based 1st Battalion of the 147th Aviation HHSc of the Army National Guard, was wounded in the Persian Gulf and is currently recovering. Marine Cpl Bret Woolhether from Fond du Lac, WI, suffered shrapnel wounds in fighting near Nasiriyah on March 27. Despite his injuries, Corporal Woolhether is eager to return to duty. The servicemen about whom I have spoken today are just a few examples of the many Wisconsinites and hundreds of thousands of Americans who serve our country in the Armed Forces. The war in Iraq and the fight against terrorism are turning upside down the lives of Active-Duty, National Guard, and Reserve personnel and their families. These men and women seek to do their duty to our country and honor commitments to their families, and, in the case of the National Guard and Reserves, to their employers. As of April 9, more than 221,000 National Guard and Reserve personnel were serving on active duty, and many more can be expected to be called upon in the future. Some Wisconsinites are facing the latest in a series of multiple activations and deployments for family members. Others are seeing their loved ones off on their first deployment. All of these families share in the worry and concern about what awaits their relatives and hope, as we do, for their swift and safe return. We owe it to our military personnel and their families to do everything we can to support them in this difficult time. I will continue to work to ensure that our troops and their families have the resources that they need, both to combat our adversaries and to provide for their families, during this tumultuous time and when they return home. We hope for a quick and decisive victory for our troops, and look forward to the day when we can welcome them home into the embrace of a grateful Nation.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I will vote against this budget resolution. The Senator from North Dakota has stated that this may be the worst budget this body has ever considered. It is hard to dispute that statement. The tax and spending policies outlined in this resolution are reckless. There is no other word for it. Over the 11 years covered by this document, from FY 2003 through FY 2013, the budget resolution produces annual deficits that by themselves would cause concern in any one year. In total, their effect is far worse. The additional debt run up over the 11 years covered by this budget resolution is an absolutely astounding $4.5 trillion. That is simply an astounding number, $4.5 trillion in debt created just by this document. According to Budget Committee staff, the budget resolution policies will produce a $2.4 trillion deterioration in the budget outlook for 2003 through 2013 relative to the Congressional Budget Office March 2003 baseline projections. Most of that comes from the $1.3 trillion in tax cuts provided for by this resolution. Let me quickly add that the true cost of the tax cuts is even higher because we are just charging their cost on the government credit card. If you include the interest costs that arise because we don't pay for these tax cuts but borrow it by running up more debt, then the true cost is $1.6 trillion. Who will pay for all of this? As the Nobel Prize winning economist Milton Friedman famously said, ``there is no free lunch.'' Someone will be stuck with the credit card tab this budget runs up. The answer is that our children and grandchildren will have to pay for all of this. The tax cuts and spending increases we pass today will be paid for by our children and grandchildren. That is precisely the tradeoff this budget makes. Tax cuts and increased spending for us, and our kids will have to pay the bill. The budget policy advanced by this resolution is not sustainable. The $4.5 trillion in new debt produced by the policies outlined in this budget does not include the long term costs of the Iraq war or the cost of postwar occupation and reconstruction. It does not include the cost of addressing one of the most significant problems in the tax code, the expanding impact of the alternative minimum tax. And it makes fundamentally unrealistic assumptions about the spending accounted for in the discretionary accounts, the part of the budget where we find spending for defense, education, transportation, and other critical programs. In a column that ran in the New York Times earlier this week, several distinguished members of the nonpartisan Concord Coalition offered some telling comments about the future we face under the deficits produced by this budget. This is what they said: Congress cannot simply conclude that deficits don't matter. Over the long term, deficits matter a great deal. They lower future economic growth by reducing the level of national savings that can be devoted to productive investments. They raise interest rates higher than they would be otherwise. They raise interest payments on the national debt. They reduce the fiscal flexibility to deal with unexpected developments. If we forget these economic consequences, we risk creating an insupportable tax burden for the next generation. The Concord Coalition is right. This budget resolution is a prescription for fiscal disaster. The tax cut and spending policies it provides are grossly irresponsible. The budget enforcement rules included in the resolution are no better. Instead of extending the budget rules that have helped impose some fiscal restraint on Congress and the White House since 1990, this resolution rips a $1.5 trillion loophole in them for this year, and opens the door for unlimited fiscal mischief in future years. It will be extremely difficult to recover from this budget resolution. As we have seen, our economy is resilient, but the damage done by this resolution will be with us for many years. The deficits resulting from the budget policies in this resolution extend as far as we can project. We can only hope that Congress will show more restraint than it has in the recent past, and forego the opportunity provided by this resolution to engage in a binge of fiscal self-indulgence.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I am delighted that the Finance Committee has included my volunteer mileage reimbursement legislation in the CARE Act, and I want to take this opportunity to thank the Chairman Grassley and the ranking member Baucus for their efforts to include this needed provision. I am also pleased that some troubling provisions have been deleted from this legislation. In particular, I congratulate the sponsors for agreeing to drop title VIII before bringing the bill to the floor. Doing so strengthens this bill, and will greatly speed consideration of the measure. Under current law, when volunteers use their cars for charitable purposes, the volunteers may be reimbursed up to 14 cents per mile for their donated services without triggering a tax consequence for either the organization or the volunteers. If the charitable organization reimburses any more than that, the organization is required to file an information return with the IRS, and the volunteers must include the amount over 14 cents per mile in their taxable income. By contrast, the mileage reimbursement level currently permitted for businesses is 36 cents per mile. At a time when Government is asking volunteers and volunteer organizations to bear a greater burden of delivering essential services, the 14 cents per mile limit is posing a very real hardship on charitable organizations and other nonprofit groups. I have heard from a number of people in Wisconsin on the need to increase this reimbursement limit. At a listening session I held in Portage County, WI, representatives of the local Department on Aging explained just how important volunteer drivers are to their ability to provide services to seniors in that county. The Department on Aging reported that in 2001, 54 volunteer drivers delivered meals to homes and transported people to medical appointments, meal sites, and other essential services. The Department noted that their volunteer drivers provided 4,676 rides, and drove nearly 126,000 miles. They also delivered 9,385 home-delivered meals, and nearly two-thirds of the drivers logged more than 100 miles per month in providing these needed services. Together, volunteers donated over 5,200 hours last year, and as the Department notes, at the rate of minimum wage, that amounts to over $27,000, not including other benefits. As many of my colleagues know, the senior meals program is one of the most vital services provided under the Older Americans Act, and ensuring that meals can be delivered to seniors or that seniors can be taken to meal sites is an essential part of that program. Unfortunately, federal support for the senior nutrition programs has stagnated in recent years. This has increased pressure on local programs to leverage more volunteer services to make up for lagging federal support. The 14 cents per mile reimbursement limit, though, increasingly poses a barrier to obtaining those contributions. Portage County reports that many of their volunteers cannot afford to offer their services under such a restriction. And if volunteers cannot be found, their services will have to be replaced by contracting with a provider, greatly increasing costs to the department, costs that come directly out of the pot of funds available to pay for meals and other services. By contrast, businesses do not face this restrictive mileage reimbursement limit. The comparable mileage rate for someone who works for a business is currently 36 cents per mile. This disparity means that a business hired to deliver the same meals delivered by volunteers for Portage County may reimburse their employees over double the amount permitted the volunteer without a tax consequence. This doesn't make sense. The 14 cents per mile volunteer reimbursement limit is badly outdated. According to the Congressional Research Service, Congress first set a reimbursement rate of 12 cents per mile as part of the Deficit Reduction Act of 1984, and did not increase it until 1997, when the level was raised slightly, to 14 cents per mile, as part of the Taxpayer Relief Act of 1997. The provision included in the CARE Act addresses this problem by raising the limit on volunteer mileage reimbursement to the level permitted to businesses, currently 36 cents per mile. Once again, I thank the chairman and ranking member of the Finance Committee for their help in including this provision in the CARE Act. This timely measure will help ensure that charitable organizations can continue to attract the volunteers who play such a critical role in helping to deliver services, and it will simplify the tax code both for nonprofit groups and the volunteers themselves. As I noted earlier, I am also pleased that the sponsors of the CARE Act agreed to drop title VIII before bringing the bill to the floor. I had two serious concerns about title VIII. First, it threatened to undermine our Nation's long-standing public policy against discrimination in employment. Religious organizations currently enjoy an exemption from title VII of the Civil Rights Act of 1964, allowing them to discriminate against individuals on the basis of religion when making employment decisions about individuals involved in religious services. The bill as introduced was silent on this issue and therefore threatened to extend this exemption and allow religious groups that provide federally funded social services to discriminate on the basis of religion in hiring, firing, or promotion decisions. Second, title VIII could have allowed religious organizations receiving Federal funds to proselytize during the provision of the federally funded social service. Faith-based organizations do a lot of good work in our society. But the Founders were right when they crafted the Constitution's separation of church and state provision. We need to protect each American's right to practice his or her religion as he or she chooses. I am troubled by the possibility that, regardless of good intentions, in practice, people who are in trouble would feel pressured to engage in religious activities that they are not comfortable with in order to get access to help, or otherwise be denied the services that they desperately need. Again, I am pleased that title VIII, the problematic faith-based provision, has been dropped from the version of the bill that is before the Senate today. Congress, however, must continue to be vigilant to ensure that we do not enact legislation that allows taxpayer dollars to be used to promote employment discrimination based on religion, or religious instruction, worship, or proselytization.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today, it is with great admiration that I congratulate the Marquette University Men's Basketball Team on their accomplishment in making it to the Final Four of this year's NCAA Basketball Tournament. Their season was extremely impressive and made folks proud to be from Wisconsin. This was Marquette's third trip to the Final Four. Their first trip was in 1974, and they won the NCAA Championship in 1977. Their hard work and perseverance carried them into this prestigious position, which undoubtedly honored the instillings of Al McGuire, who was the coach from 1964 to 1977 and represents the spirit of this basketball program. With this great accomplishment, Marquette's coach Tom Crean graduates to the honors bestowed on this program in years past and has ignited the strong traditions of success that have long been a part of Marquette. I take great pride in recognizing the Marquette University Men's Basketball Team in their attainment of a spot in the Final Four of the NCAA Tournament. I wish Coach Crean and the Marquette University basketball team all the best. Wisconsin is very proud.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today people around the world are pausing to remember and honor the victims of the Armenian genocide, which began 88 years ago in what is now Turkey. Between 1915 and 1923, one-and-a-half million Armenians--roughly 60 percent of the total Armenian population--were systematically murdered at the hands of agents of the Ottoman Empire, and hundreds of thousands more were forced to leave their homes. At that time, the word ``genocide'' had not yet entered our vocabulary. Now, 88 years later, this brutal episode of violence against the Armenian people is considered to have been the first, but unfortunately not the last, genocide of the 20th century. Two decades later, in 1939, as Adolph Hitler, confident that history would exonerate him, prepared to send his armies into Poland with instructions to slaughter people indiscriminately and without mercy, he rhetorically asked his advisers: ``Who, after all, speaks today of the annihilation of the Armenians?'' That is precisely why I speak today, and every year on this date, to honor the Armenian people who lost their lives nearly a century ago and to remind the American people that the capacity for violence and hate is still prevalent in our world today. Just in the last decade, we have seen systematic efforts to extinguish people because of their ethnicity in Bosnia, Rwanda, and Kosovo. Last year the Organization for Security and Cooperation in Europe noted a ``sharp escalation'' of anti-Semitic violence in Europe. Apparently, even lessons as searing and tragic as those of the Holocaust can be forgotten if we do not remain vigilant in our efforts to remember them. Last year, as the chairman of the Subcommittee on Africa, I had the opportunity to visit the International Criminal Tribunal for Rwanda, which is setting groundbreaking legal precedents with regard to the treatment of genocide. Through such tribunals, the international community should send a powerful message to would-be mass-murderers that such horrific acts will not go unpunished. Since I became a member of the U.S. Senate, I have striven to make protection of basic human rights, and accountability for such atrocities, cornerstones of U.S. foreign policy, and I will continue to do so as long as I am here. Today, we remember the men, women and children who perished in the Armenian genocide, because to forget them, or any of the countless millions who have been murdered because of their ethnicity over the past century, would be to invite such tragic episodes to be repeated.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise to submit a resolution supporting global efforts to eradicate the scourge of polio from the face of the earth. It was not so long ago that American parents were afraid to send their children to public swimming pools in the summer for fear that they would contact this deadly disease. More than 57,000 cases were reported in the United States in 1952. President Franklin Roosevelt, himself disabled by polio, established the March of Dimes in 1938 to find a cure for the disease. Sixteen years later, mass vaccination began, using a serum developed by Dr. Jonas Salk. Infections declined nearly 90 percent within three years. Routine administration of the Salk vaccine, and the subsequent oral vaccine developed by Dr. Albert Sabin, soon relegated polio to the history books in the United States and many other countries. The disease continued to take its toll, however, in those parts of the world where universal vaccination was beyond people's means. In 1988, the World Health Assembly set a goal of eradicating polio worldwide by the year 2000. In that year there were an estimated 350,000 polio cases in 125 countries. The World Health Organization, the U.S. Centers for Disease Control and Prevention, UNICEF, and Rotary International spearheaded a global campaign to eradicate polio, as smallpox had been eradicated in 1979. As a result of this campaign, the Western Hemisphere was certified polio free in 1994. The Western Pacific--including the world's largest country, China--followed suit in 2000. But polio hung on in 10 countries in Africa, South Asia, and the Middle East, with 480 cases reported in 2001. Since then, Europe has been certified polio-free. But the disease has bounced back in India and Nigeria, and there were 1,462 cases reported in seven countries in 2002. The eradication target has been extended to 2005. This resolution seeks to bolster the efforts of the WHO, UNICEF, CDC and Rotary International to eliminate this dreaded disease once and for all. It has been estimated that doing so would produce direct, global financial benefits of $1.7 billion a year mostly by eliminating the need for further vaccinations and their associated risks and would free millions from fear. I especially want to commend the efforts of Rotary members worldwide, who have set a goal of raising $80 million this year for polio eradication. Rotary has committed more than $500 million to the campaign since 1988. This represents the finest spirit of community action to address global problems, harkening back to when American families collected dimes to wipe out polio in this country. I urge all my colleagues to emulate the spirit of the Rotarians by supporting this resolution.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am deeply disappointed in the human rights record of Burma. Throughout my time in the Senate, I have consistently been critical of political and human rights abuses in Burma. I have been deeply troubled by reports, confirmed by the U.S. Department of State, that Burmese soldiers have systematically raped Shan women on a massive scale. I am also concerned about repeated charges of forced labor, the suppression of civil liberties, and widespread political repression. Recent events in Burma only serve to heighten my concern. I am concerned by the recent decision by United Nations human rights envoy Paulo Sergio Pinheiro, to suspend his missions to Burma after finding a hidden listening device in a room where he was interviewing political prisoners. The incident raises very serious concerns about the depth of Burma's commitment to improving conditions within its borders. I am also concerned about the case of Dr. Salai Tun Than, an alumnus of the University of Wisconsin-Madison, who was arrested and sentenced in November 2001 after conducting a solitary protest of political conditions in front of Rangoon City Hall. As a member of the Senate Foreign Relations Committee, I will continue to monitor human rights in Burma, as I have on human rights all over the world. Finally, I would like to offer my praise for students at several University of Wisconsin campuses who are working to highlight conditions in Burma. I am impressed by their dedication and heartened by their commitment to justice and freedom for the Burmese people.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I pay tribute to one of our Nation's greatest public servants: Daniel Patrick Moynihan. As a professor, as an advisor to four presidents, and through 24 years in the Senate, he lent us the wisdom of his experience, the insights of his keen mind, and above all, the honor of his friendship. Senator Moynihan's example reminds all of us of what a Senator was intended to be. He was a leader who not only addressed the needs of his State, but who wrestled with the challenges facing the Nation. Senator Moynihan was a great servant to the people of New York. But the legacy of accomplishments he leaves reaches beyond New York's borders to touch the lives of every American. With a brilliant intellect and an unwavering dedication, Senator Moynihan helped us to think through some of the toughest issues before this body, from welfare reform to tax policy. He worked to return secrecy to its limited but necessary role in government, an effort which I applaud, and an effort which we should continue to maintain even in times of national crisis. Especially right now with our Nation at war, I know we all miss Senator Moynihan's keen grasp of international relations, his ability to put world events into a historical context, and his talent to tell us where they will lead us. Senator Moynihan's lifetime of public service, his wisdom and experience, were a wonderful gift to this body. I know my colleagues join me in my admiration for Senator Moynihan as a public servant, my respect for him as a colleague, and my appreciation for him as a friend. It was a distinct honor for me to serve with Senator Moynihan since I came to this body in 1993. My deepest sympathies go out to Liz Moynihan and the rest of Senator Moynihan's family and friends. I yield the floor.