Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. The reduced production capacity has resulted in a severe downsizing of the workforce at this refinery. As recently as 1987, C&H employed over 1,400 people. These are not minimum wage jobs we are talking about; the average employee in the cane refining industry earns about $43,000 a year. In 1995, C&H had to eliminate 30 percent of its workforce just to remain viable under the quota system mandated by the sugar program. C&H now employs just over 500 people. These jobs and many others around the Nation are at risk if reforms are not made to the sugar program. In addition to choking off the refineries' access to sugar, the U.S. sugar policy also has had an adverse impact on consumers. An earlier report by the GAO found that the program costs sugar users an average $1.4 billion annually, as has been mentioned. That equates to $3.8 million a day in hidden sugar taxes. The report found that: Although the sugar program is considered a no-net-cost program because the Government does not make payments directly to producers, it places the cost of the price supports on sweetener users--consumers and manufacturers of sweetener-containing products--who pay higher sugar and sweetener prices. What this means is that, unlike traditional subsidy programs, the funds don't come directly from the Treasury. Instead, the sugar program places the cost on consumers by restricting the supply of available sugar which causes higher domestic market prices. This is our Government program; it makes no sense. On numerous occasions over the past 5 years, I have asked the administration to reform the sugar program. Simply increasing the amount of sugar available through the import program would provide immediate relief to C&H and all other domestic refineries. To date, no such permanent reform of the program has occurred. In the absence of these reforms, Congress must take stronger action. Congress has had opportunities in the past to kill this program and we have not taken them. As a result, workers have lost jobs and consumers have lost money. Regardless of what happens with this amendment, the effort to reform the sugar program is not going to end. Senators Schumer, Chafee, Gregg, Moynihan, myself, and others have introduced legislation that would phase out the subsidy over the next several years. If the administration refuses to work with us to make the program responsive to the needs of the domestic sugar refinery industry and to our consumers, we will have no choice but to push for passage of this bill. I thank the Chair. I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to address the amendment on low-income housing tax credit to be offered by my colleague from Pennsylvania, of which I am a cosponsor. This issue--affordable housing--is of great importance in my state of California, as it is for much of the nation. Low income families in San Francisco, San Diego, and cities across the country are finding it harder and harder to find affordable housing for rent. The low-income housing tax credit is a great help. Since 1987, state agencies have allocated over $3 billion in housing credits to help finance nearly one million apartments for low income families. The current housing credit cap--$1.25 for each resident of a state-- has not been adjusted since the program's inception. Annual cap growth is limited to the increase in state population, which has been less than five percent nationwide over the past decade. During the same time period, inflation has eroded the housing credit's purchasing power by nearly 50 percent, as measured by the Consumer Price Index. The budget reconciliation bill increase the credit cap to $1.75 over five years. This is an important step, but it's not enough. Senator Santorum and I have proposed this amendment to index the low-income housing tax credit cap for inflation. The estimated cost to index the cap for inflation is $43 million over ten years. It is my understanding the cost has been fully offset. It is important to see that the housing tax credit will not depreciate over time. By not indexing the credit for inflation over the past 13 years, it has eroded by between 40 and 45 percent. Costs to build and rehabilitate affordable housing developments have continued to climb, requiring more credit per project in order to achieve economic feasibility. As a result, less and less affordable housing is made available under the credit. Assuming an inflation factor of just three percent, California would have an additional $1.23 million in the first year of indexing. This would produce approximately 150 more affordable apartments in California annually. Nationwide, demand for housing credits outstrips supply by more than three to one. In California, it's four to one. According to the Center on Budget and Policy Priorities, 90 percent of renters in Los Angeles pay more than 30 percent of their monthly income on rent. Seventy-three percent spend more than 50 percent of their income on rent. In the city of San Diego, the affordable housing situation is not much better. There, 106,000 families spend more than 30 percent of their income on rent, and 57,000 families spend more than 50 percent on rental housing. In the San Francisco Bay Area, the situation is even worse. The average family pays roughly 58 percent of its monthly income on rent. We need to aggressively work to fix this shortage. We need to ensure the tax credit will remain a workable incentive for home builders nationwide. I urge my colleagues to join me in support of this amendment.

Mrs. FEINSTEIN. Mr. President, although I have a great deal of respect for the chairman of the Senate Finance Committee, close examination of the Taxpayer Refund Act of 1999 has led me to conclude that the $792 billion Republican tax bill passed out of the Finance Committee is too much too soon and could well have serious adverse effects on federal priorities and the national economy. The Republican tax plan would devote virtually the entire projected non-Social Security surplus over the next ten years--some $932 billion out of $964 billion, according to the CBO--to tax cuts. That would leave just $32 billion for everything else--Medicare needs, defense, health care, education, combating crime, everything else that the government does. Clearly, that is not sustainable. In fact, the Republican plan may well lead to substantial deficits unless the Congress and the President are willing to not only keep the present caps, but to tighten them even further. By devoting 97 percent of a surplus that has not yet been generated to tax cuts and to the additional interest costs of not reducing the debt--$932 billion--the Republican plan creates a great risk that we will return to the era of deficits and rising debt. When I first came to the Senate in 1993, the Federal budget deficit was $290 billion, and expected to continue for the foreseeable future. Through the imposition of tough fiscal discipline--and by making tough budgetary choices--we have now managed to bring the federal budget back in balance. We should not now precipitously put these gains at risk. If we abandon the fiscal discipline and responsibility that have allowed us to get to where we are today--our economy growing and our budget in balance--we will once again find ourselves running up annual deficits in the tens of billions of dollars. The bottom line is that the Republican plan is too much, too soon, too fast. It: Spends money which Congress does not yet have. This surplus has not yet materialized and will not until next year--assuming projections are correct, which they may not be. What happens if there is a military need? What happens if there are large national disasters? What happens if the economy slows down? Answer: All surplus projections are in the wastebasket. In fact, the projected surpluses which have set off the tax-relief movement may never materialize. It will only come about if the economy continues to grow and if Congress cuts spending even more deeply. The Republican plan does nothing to protect Medicare. No budget resources are set aside for Medicare solvency. And by giving nearly all the surplus outside of Social Security's need to tax cuts, the Republican plan does nothing to extend the solvency of Medicare trust fund, which will be bankrupt by 2015. Nor does it provide coverage for prescription drug benefits to be added. As a matter of fact, they are made impossible. The Republican plan endangers virtually all domestic program priorities, forcing cuts of close to 40 percent in domestic spending over the next decade. The Republican plan would commit the nation to major cuts in military readiness, education, healthcare, and crime- fighting, just to name a few areas. In fact, under this plan, to avoid deficits, domestic spending will have to be cut an additional 23 percent by 2009. But if defense programs are to be funded at the level recommended by the Joint Chiefs--as I believe they should be--then domestic spending will have to be cut by 38 percent. Cuts of this magnitude would: Reduce Head Start services over one-third, from the 835,000 children who would otherwise be served to 460,000. It would slash Title I, Education for the Disadvantaged, programs, denying 4 million children in high poverty communities throughout this nation (from the 14.6 million projected) access to key educational services necessary to improve their future prospects. It would cut the National Institutes of Health budget by $8.6 billion from the current baseline, which would endanger NIH's ability to fund new research grants. It would gut the cancer program and certainly prevent the doubling of funding for cancer research as this body has supported by a vote of 98-0 in 1997 in a Sense of the Senate. It would cut Superfund cleanup funds by $870 million, eliminating all new federally-led clean-ups due to begin in 2009, and making it difficult, if not impossible, to meet the EPA's 900-site cleanup goal in 2002. There are 96 Superfund sites in California on the National Priority Cleanup List, including Iron Mountain near Redding and the San Gabriel Valley site in Los Angeles county. Construction is underway at just 38 percent of these sites. The Republican tax plan may put continued work on these sites in jeopardy. The Republican plan cuts to the Immigration and Naturalization Service could result in a reduction of over 6,000 Border Patrol Agents (from the number projected); cuts to the FBI could result in a reduction of over 6,000 FBI agents (from the number projected). Does not eliminate publicly held debt. Today, public debt stands at $3.6 trillion. We have an opportunity to eliminate this public debt entirely by 2015--critical if we wish to keep interest rates low--if we stick with a fiscally responsible approach. I represent the most populous state in the union. Most important issues before the Senate produce letters and e-mail in excess of 10,000 a week, and often 20,000 or 30,000. Yet, I have received remarkably few letters urging tax cuts. And those letters that I have received--109 last week--have been equally split. In fact, only one person has written to me saying that it is vital for their survival that the massive Republican tax package be passed. I would like to read from some of the letters that I have received, to give my colleagues a sense of what the people of California are thinking about this issue. A letter I received from a woman in Berkeley sums up much of this debate quite well, and is reflective of much of the mail I have received. And it is further testament to the fact that the American people are often more wise then many of their elected leaders. This letter reads: I am very concerned about proposed tax cuts and urge you to be cautious! First, we really do not know if the proposed surplus will be there in the next 15 years. Second, we have enormous debt, and, in my mind, the major portion of the surplus should be used to pay down our debt. This would be a boom to baby boomers, etc since their ``invested'' surplus Social Security taxes are already spent. Talk about ``family value''--pay your debt first. Third, Social Security, Medicare, and child services all need financial attention. Please do not vote for a large tax cut. It is not the right thing for our national financial future. For those of my colleagues who may be quick to dismiss a letter coming from Berkeley, I also received a note from a couple in Sonoma which read: ``We are two registered Republicans who would prefer no tax cut. Pay off the national debt and lower interest rates thereby. Also secure Social Security and improve healthcare for everyone.'' A man in San Diego wrote: I want the national debt payed down. I want Social Security and Medicare shored up. I don't want more government spending. If we can do that and get a tax cut fine. If we can't fine. I don't want to depend on your economist's estimates of overages, since we know their abilities are mediocre at best! And from an e-mail from Aptos: I am opposed to the recent large tax break legislation in the House. We need instead to be paying down the debt and saving tax cuts for when they are truly needed. The more we pay off our national debt, the more of our hard earned tax dollars will actually go to programs, not debt repayment, and the more we will be able to afford true tax cuts in the future. Lets not spend our future away. In fact, I believe that if our colleagues on the other side of the aisle were willing to put partisan posturing behind them, a responsible tax cut would be possible within the context of the budget plan proposed by the President. I support the Administration in setting aside 62 percent of the surplus for Social Security, some $3.5 trillion over 15 years. It extends the program's solvency to 2053, and eliminates publically held debt by 2015. This means that the ``baby boomer'' generation's Social Security is protected. I support extending the solvency of Medicare from 2015 to 2027 by dedicating 13.5 percent of the surplus, some $794 billion over 15 years to Medicare. This is vital if there is to be a solvent system. It is mandatory if addressing a change in benefits is contemplated. Finally, I strongly support itemizing 2.5 percent of the surplus, or $156 billion over 15 years for education, and 6 percent of the surplus or $366 billion over ten years for various discretionary programs such as defense, veterans affairs, research, agriculture, and environmental protection. That would leave $271 billion over the next ten years which could be utilized as a tax cut. Indeed, that is why I worked with my colleague from Iowa, Senator Grassley, to put together and introduce earlier this year a moderate bill that provides needed tax relief for working families while fitting within the budget framework set out by the President to protect Social Security and Medicare. The Grassley-Feinstein plan would cost $271 billion over ten years. It provides a $61.4 billion cut in the marriage penalty; a 100 percent deduction for health insurance expenses and a tax credit for long-term care ($117 billion over ten years); an increase in the low-income housing credit ($6.6 billion over ten years); tax credits for child care and education, including help for stay at home parents, with the HOPE college credit, and with student loan interest payments ($32.3 billion over ten years); and it helps our economy continue to grow by making permanent the R&D tax credit ($27.4 billion over ten years). In fact, it is much like the Democratic plan. It is a common sense, bipartisan approach. Of all the tax cuts that have been proposed, I believe the one that would be of the most help to the American people would be marriage penalty relief. It makes sense for social reasons: It reinforces the important institutions of family and marriage. And it makes sense for economic reasons: It eliminates what many of us see as a vast inconsistency in our tax law, that two people could find that they pay more in taxes if they are married then if they stay single. It makes no sense. Another approach to this tax relief question would be to simply eliminate the marriage penalty outright, starting in 2002, and allow married couples to file either individually or jointly at their option. This would cost some $234 billion for the eight years. A tax relief plan which starts with a $234 billion cut in the marriage penalty would also allow us to include other important provisions. I would support including an immediate increase in the low- income housing tax credit, indexing that credit to inflation, which would cost $6 billion over ten years. The low-income housing tax credit is critical for financing housing for low income families. I would also support the permanent extension of the R&D tax credit,which costs some $27.4 billion over ten years, and provides an important incentive for U.S. companies to continue to develop the cutting-edge technologies of the 21st century. So, the complete elimination of the marriage tax, the low-income housing credit, and the R&D credit would total some $269 billion over the next years, well within the $271 billion cap. Unfortunately, the Republican plan passed by the Finance Committee is neither common sense nor bipartisan. It is a tax plan which will endanger the federal budget, places Medicare at risk, force deep and unnecessary cuts in important domestic priorities, and may undermine the long-term health of the U.S. economy. It is unwise, and I urge my colleagues to think long and hard before plunging headlong and heedless down this path of fiscal irresponsibility. Congress has an unprecedented opportunity to put our fiscal house in order. We can protect Social Security and Medicare, meet other domestic and international priorities, and eliminate the federal debt. And we can provide the American people with significant and much needed tax relief. This is not some pie in the sky scenario, but a realistic appraisal of what we can do if we are willing to move beyond partisan posturing and politics as usual, and do what is right for the American people.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I thank the Chair. Mr. President, I rise to offer my support to both the majority and the minority leaders in their ongoing efforts to get the juvenile justice bill to conference. I believe it is about time. I was an original cosponsor of the juvenile justice bill and helped write the gang abatement provisions of that bill. These provisions are really designed to provide a helping Federal hand to State and local governments for those gangs, criminal gangs, who are now crossing State lines and illegally conducting criminal activities in various States all across this great country. Both Houses of Congress passed this legislation weeks ago. There are a few commonsense measures, targeted and precise, that provide some regulation of firearms in this country. They are not sweeping, they are actually rather small, yet they have become the focus of debate and stopped a good bill from moving further. The issue of the bill has remained essentially in legislative purgatory, and the will of the Congress and the American people has so far been denied. I will speak for a moment about the few so-called gun pieces that are in this bill. The first is a bill by Senator Ashcroft in the Senate which essentially says that juveniles can't possess or buy an assault weapon, assault weapons which were created for military use to kill large numbers of people in close combat--that is the purpose of these weapons, clearly. They were not made for civilian defensive purposes. It is a no-brainer to say that juveniles shouldn't be able to buy them or possess them. Secondly, trigger locks should be put on weapons sold to the American public. We know they can be. We know they are not costly, and we know they will save lives in instances such as the one that happened a few weeks ago, when a youngster 8 years old picked up a gun, playing a war game with a 7-year-old, and shot the 7-year-old, not knowing the gun was loaded. Again, a no-brainer. Why not sell a gun with a trigger lock if it is going to save innocent lives? Thirdly, we would close certain gun show loopholes. Does anyone in America really believe that a juvenile should be able to go to a gun show and, unidentified, surreptitiously, buy a gun and not even have a background check? I don't think so. Finally, I authored a piece of legislation which to me was another no-brainer. We have in prior legislation prohibited American manufacturers from making the big banana clips, large ammunition- feeding devices, some of them as large as 250 rounds, which are used in the so-called grievance killings, 9 of which have taken place in high schools all across this great country in recent years. That is the law of the land. You can't make them domestically. You can't sell those that are made domestically, and you can't possess them, if they were made following the assault weapons legislation which became part of the crime bill in 1994. There is a loophole. The loophole is that they can be imported to this country. Last year alone, from almost 20 different countries, 11.4 million large-capacity, ammunition-feeding devices, over 50,000 of them of more than 250 rounds, came into this country. The President couldn't stop it by executive order; we had to legislate; and, in fact, we did. Twenty Republicans voted for this. We had 59 votes in the Senate. The chairman of the House Judiciary Committee moved it as an amendment on the floor, which was passed by unanimous consent in the House. I will talk more about that in a moment because something rather dastardly has happened to it. At Columbine High School earlier this year, 13 innocent children died from gunshot wounds. We were all horrified. Since that time, dozens, if not hundreds, of other children across this Nation have also died from gunshot wounds. Congress has done nothing to solve the problem, no measures to try to prevent this from happening in the future. On August 16, the children of Columbine will return to the very school that witnessed one of the worst incidents of gun violence this Nation has ever seen. When they return, they are going to be asking themselves, their parents, their teachers, and even us a lot of questions: What has been done to make our school safer? Is it harder for kids to get guns today? What has Congress done to help us? And who is really trying to make a difference? Many of those same children came here from Littleton this month, and they asked us those same questions. I believe their questions went largely unanswered. The children received assurances from leadership on both sides of the aisle that Congress is working hard to reduce or eliminate future school shootings and that Members of Congress sympathized with them and would do anything they could to help. But as one child from Littleton put it bluntly: ``It is one thing for them to say they sympathize with our pain; it is quite another to look down a gun barrel and think that maybe you are going to die.'' This was from a girl just 17 years old, but a girl forced to grow up very quickly after the events of this past year. This is what the issue is all about--the boys and girls out there who fear for their lives every day because of gun violence. I have asked fourth graders in California schools what is their greatest fear. Do you know what it is? Getting shot on the way to school. Yet still we wait and we do nothing. We spent more than a week in this body debating and voting on dozens of provisions to stem the tide of youth violence in this country, and-- as much as some would still refuse to accept it--to curb the flood of guns reaching criminals and children. This debate isn't all about just controlling guns. I think this debate really has three pertinent parts to it: One, improving parenting. Parents need to spend more time with their children. They need to set limits and they need to see that they are observed. They need to spend a lot of time with the young people. This has become less and less in a world that requires two parents to work. That is one thing--better parenting. There is a second thing. Youngsters left alone are more often more dependent on media than I was when I was raised. In my younger days, there wasn't even television, believe it or not. Today, media is surrounded by a culture of violence--even video games. So youngsters are much more exposed to violence today than I was when I was growing up in this country. Third, the Nation is awash in guns. These three things make a very combustible mix, and we need to deal with it. But still we wait and we do nothing. The delays have come in many forms, as I have said--political maneuvering, parliamentary tactics, and others. Just recently, in a virtually unprecedented move, anti-gun control forces in the House of Representatives raised a last-minute ``blue slip'' challenge to the amendment I just spoke about, which would stop the importation of these big clips--over 11 million of them last year. It is my understanding this may have been the first time in history that such a challenge was raised to an amendment under Title 18, the criminal code. The first time in history--but that didn't stop the NRA or its supporters in this Congress. The clear goal of this amendment, and of the overwhelming majority of Members in both Houses of Congress who voted for it, is to keep those foreign-made, high-capacity ammunition clips off our streets and out of the hands of children and criminals. That is the intent. You can't use them for hunting. They are not good for defensive purposes. They are offensive in their use. For most people, stopping these big clips from flowing into our country and into the hands of children and criminals is simply common sense. But not for the NRA. They have tried to kill this measure for years. They supported the loophole in the first place. This most recent attempt, the blue slip challenge, popped up at the last minute--after the amendment had passed the Senate, after it had passed the House unanimously, and after we had already waited for weeks for a conference to start the juvenile justice bill. Essentially, the challenge raised to the bill involves the constitutional prerogatives of the House of Representatives to originate all revenue bills. Several Members of the House argue that because the importation of large-capacity, ammunition-feeding devices creates some revenue for the Treasury, the prohibition of such importation would cost us money, and thus the entire juvenile justice bill becomes a revenue bill. Because no similar measure was in the House bill, it was proclaimed that the Senate had illegally originated a revenue bill. After little debate and much misinformation, the House voted to send the juvenile justice bill back to the Senate so that we could remove the clip provision. I don't believe such action was warranted, and I would have liked an opportunity to make my case before the vote took place, but there wasn't time. In the end, I had little choice, and I picked up the telephone and called the Speaker of the House of Representatives, who was most gracious. He took my call. He said he did not want to kill the clip ban. He did not believe the House of Representatives--the majority--wanted to kill the clip ban, and he would support its reinstitution. I then called the chairman of the Judiciary Committee, the very distinguished Henry Hyde of Illinois, and he had made the clip ban amendment on the floor, which passed unanimously in separate legislation. He said he was supportive of the clip ban. He said he would move to put it back in conference and that he believed a conference committee that he would appoint on the House side would support its reinstitution into the bill. Put plainly, we were sideswiped, and we were given no time to recover. But make no mistake, the juvenile justice bill is not a revenue bill, and this challenge, I believe, was simply an attempt to further delay the will of the American people. I want to explain why I don't believe the clip import ban is a revenue measure, as it is meant by the Constitution, despite what the House Parliamentarian has said. I want to put my views on the record in the hope that this type of cynical maneuver won't happen again in the future. I am not a constitutional scholar, but to me, this is simple common sense. In my view, the mere fact that a small part of a very large bill may incidentally effect some revenue doesn't make the bill a revenue bill. The Constitution states that all bills for raising revenue shall originate in the House. This has been interpreted to mean all bills affecting revenue, I guess, because although the clip ban does not raise revenue, it does affect revenue in a small way by causing the Treasury to lose the proceeds from a 4.2-percent tariff on ammunition clips that are used in certain types of firearms--I believe, handguns. I don't believe the intent of this constitutional provision was to prevent the Senate from ever passing a bill that somehow affects revenue. After all, almost everything we do, in some way, affects revenue. We constantly pass bills establishing or eliminating fees. We put new requirements on the executive branch that will clearly lead to increased costs. We establish programs that will bring extra money to the Treasury in ways many people find hard to imagine. Our Founding Fathers wanted the House to originate legislation that raises taxes, and that I understand and concur with. But I don't believe they meant for the House to originate every bill in Congress, which would be the logical extension of the arguments made during this very short debate. The juvenile justice bill was clearly not a bill for raising revenue, and neither was the clip ban amendment itself. The juvenile justice bill was a bill to stop crime. The clip ban was an amendment to eliminate large-capacity, ammunition-feeding devices from our streets. Any revenue affect was incidental, and any claim to the contrary is simply mistaken. In fact, the revenue effect of this bill was so incidental that nobody even realized that tariffs would be lost until a few short weeks ago. Not when the amendment came to the Senate floor and passed. Not when the amendment came to the House floor and passed. Not during the days and weeks that the juvenile justice bills sat on the calendar. Only when the pressure was finally getting too great--only when the Senate Majority leader and the House Speaker promised conferees that week--only then did this issue come up for the first time, at the very last minute, before a rushed vote. Mr. President, in at least two Supreme Court cases--U.S. versus Munoz in 1990 and another as far back as 1897--the Court has held that ``revenue bills are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue.'' Clearly, Mr. President, the juvenile justice bill is not a bill that levies taxes ``in the strict sense of the word,'' but rather it is precisely the type of bill the Supreme Court agrees is not a revenue bill--one that is, and I quote it again, ``for other purposes which may incidentally'' affect revenue. Unfortunately, the House of Representatives never had a chance to review those Court cases, because this issue came up so quickly. In the end, whether or not a Senate bill is a revenue bill boils down to the opinion of a majority of House Members, and those Members have spoken by returning the juvenile justice bill to us for correction. But I firmly believe that if the House had been given an opportunity to study the facts and review the precedent, the outcome would have been different. Instead, the issue was rushed, the debate cut off, and the outcome predetermined. I can only hope that we have now overcome the remaining hurdles and we can quickly move to conference on these bills, because we are running out of time. With fewer than 8 legislative days left before the children of Columbine High go back to school, the future of this bill rests squarely with the Republican leadership in both the House and Senate. They have said they want to make progress with our gun laws, and they now have it within their power to do so. I am encouraged that it now appears that the logjam has been broken, but the inventive and imaginative delays we have faced so far leave me wary of future shenanigans. The question is, Will those who claim to support reasonable gun control finally put their money where their mouths are, or will they continue to use unprecedented parliamentary maneuvering to avoid the issue and give the NRA its very own Christmas in July? I, for one, certainly hope that the American people win out, and I thank the majority leader for getting this process moving. I also would like to extend my thanks to the Speaker of the House of Representatives and the chairman of the Judiciary Committee for their support. Chairman Hyde was very supportive of the assault weapons legislation, which was moved as an amendment to the crime bill in 1994, and his integrity has remained strong and unchallenged in that regard. That is the one confidence that I have that this clip ban has a chance to fly once again. That rests on the integrity of the chairman of the Judiciary Committee, which I believe is unblemished, and also on the Speaker of the House of Representatives, both of whom have given me their firm assurances. I thank the Chair. I yield the floor.

Mrs. FEINSTEIN. Mr. President, I rise to claim time to speak on this bill.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I join with my colleagues in expressing my strong support for the Hate Crimes Prevention Amendment, legislation of which I am a cosponsor. The Hate Crimes Prevention Amendment is urgently needed to compensate for two limitations in the current law. First, the current federal hate crimes law covers only crimes motivated by bias on the basis of race, color, religion or national origin. As a result, federal authorities cannot prosecute individuals who commit violent crimes against others because of their sexual orientation, gender, or disability. In addition, current law limits federal hate crime prosecutions to instances in which the victims was targeted because he or she was exercising one of six narrowly defined federally-protected activities (such as serving on a jury, attending a public school, eating at a restaurant or lodging at a hotel). As a result, the law does not reach many cases where individuals kill or injure others because of racial or religious hatred. The Hate Crimes Amendment would remedy the glaring gaps and inadequacy of the current law by broadening the federal jurisdiction to cover all violent crimes motivated by racial or religious hatred, regardless of whether the victim was exercising a federally protected right. It would also include sexual orientation, gender and disability to the list of protected categories within current federal hate crime law, provided there is a sufficient connection with interstate commerce. At the same time, federal involvement would only come into play if the Attorney General certifies that a federal prosecution is necessary to secure substantial justice. In recent years, the existing federal hate crimes law has been used only in carefully selected cases where the state criminal justice system did not achieve a just result. What does this mean? It means that crimes based on race, color, religion or national origin would be covered under the federal hate crimes law whenever the defendant causes bodily injury, or through the use of fire, a firearm, or an explosive, attempts to case injury. Crimes based on sexual orientation, gender or disability would be limited to the same types of violent crimes, but only if the crime has a sufficient connection with interstate commerce. In all cases, the prosecution would have to show that the crime was motivated in part by the actual or perceived sexual orientation, gender, or disability of the victim--and this would be a matter for the jury to determine. As would be the case for every element of a criminal offense, federal prosecutors would have to prove motivation beyond a reasonable doubt. In all cases, these prosecutions would present evidence that a motivating factor in the crime was bias against a particular group. Hate crimes in these cases would carry a heavy penalty. Persons who cause bodily injury to another, or, through the use of fire, firearms, or explosives, attempts to cause bodily injury in the furtherance of a hate crime would face imprisonment up to 10 years. If the hate crime results in death or the offense included kidnapping, aggravated sexual abuse or an attempt to kill, the convicted offender could face life imprisonment. Mr. President, for many years I have been deeply concerned about hate crimes and the immeasurable impact they have on victims, their families and our communities. In 1993, I sponsored the Hate Crimes Sentencing Enhancement Act, which was signed into law in 1994 as a part of the Violent Crime Control and Law Enforcement Act of 1994. The Act increased the penalties for hate crimes directed at individuals because of their perceived race, color, religion, national origin, gender, disability or sexual orientation. Today, I believe the Hate Crimes Prevention Amendment, builds on this effort by modifying the current law to allow the federal government to provide the vital assistance to states in investigating of crimes of this magnitude. This legislation is long overdue, Mr. President. The brutal murders last year of an African American, James Byrd, in Texas; a gay man, Matthew Shepard, in Wyoming; and the murderous rampage in Littleton, Colorado earlier this year vividly portray why this legislation is so urgently needed. Just recently, our nation awakened to the news of drive-by shooting attacks on Jews, and African-American, and Asian-Americans in Chicago, Illinois. These shootings were the despicable acts of virulent hatred. Undoubtedly these crimes have affected so many lives beyond its immediate victims. Two weeks before the shootings, three synagogues were torched in Sacramento, California, sending shock waves throughout the Jewish community in America. Sadly, hate crimes are becoming too commonplace in America. According to the U.S. Department of Justice, in 1997, the last year for which we have statistics, 8,049 hate crime incidents were reported in the United States. That is almost one such crime per hour. Within these incidents, there were 10,255 victims of these crimes. Of that total, 4,710 or 58.5% of the crime were committed on account of the victim's race. Of these reported crimes, there were almost 1,300 victims of anti-black crimes; 649 victims of anti-Hispanic crimes; and 466 victims of anti-Asian crimes. In that same year, 1,385 or roughly 17% of the victims were targeted because of their religious affiliation. The number of anti-Jewish incidents is second only to those against blacks and far exceeds offenses against all other religious groups combined. Moreover, while by most accounts anti-Semitism in America has declined dramatically over the years, the level of violence is escalating. The FBI reports that crimes against gays, lesbians and bisexuals ranked third in reported hate crimes in 1997, registering 1,102 or 13.7% of reported incidents. And, gender-motivated violence occurs in our country at alarming rates. According to the Leadership Conference on Civil Rights, ``society is beginning to realize that many assaults against women are not `random' acts of violence but are actually bias- related crimes.'' In addition, according to the California Attorney General, more than 1,800 of the 8,000 hate crimes reported by the FBI were committed in California. That's a shocking number when one considers the motivation behind a hate crime. These are truly among the ugliest of crimes, in which the perpetrator thinks the victim is less of a human being because of his or her gender, skin color, religion, sexual orientation or disability. By enacting this legislation, federal prosecutors will be able to work in full partnership with their state counterparts. In Wyoming, despite clear evidence that the killing of Matthew Shepard was motivated by bigotry against homosexuals, federal authorities lacked jurisdiction to assist state and local authorities in investigating the case. It is imperative, therefore, that Congress move swiftly to address this situation and enact this legislation. Although the Byrd and Shepard, as well as the Littleton and Chicago atrocities, all have shocked the conscience of our nation, many hate crimes happen daily in our communities and do not receive national exposure and universal condemnation. For example, an 18-year-old San Francisco youth was savagely attacked and beaten after a recent athletic event between St. Ignatius College Preparatory School and Sacred Heart Cathedral Preparatory School. During the beating, his attackers yelled racial slurs at him. Just a few days later, a 17-year-old senior at San Marin High School was beaten outside his school in Novato, a derogatory word regarding his presumed sexual orientation was etched into his arm with a pen. And, in an especially disturbing case in Ventura, California, four skinheads attacked a Latino couple and an African-American couple returning from a high school homecoming date. Singing, and then shouting racial epithets, the skinheads followed the two couples and threw a brick at the head of the African-American teenager. When the students tried to drive away, the skinheads kicked the car and beat it with a baseball bat, causing $2,000 in damage. These recent cases show far more vividly than I can express here today why we need this legislation now more than ever. This amendment does not create any ``special interests.'' Hate crimes are not just the concern of any one race, one gender, or one segment of society. The victims of these types of attacks are black and white, young and old, gay and straight, mother and son, father and daughter. Most importantly, they are all human beings whom other human beings loved and depended on. No one, no matter where he lives or to what group she belongs can be certain who will suffer from senseless acts of violence sparked by bigotry, hatred and prejudice. History is replete with instances in which mindless fear, ignorance and prejudice propel unspeakable acts of inhumanity. There is a great monument to this in this very city: the Holocaust Museum. The Holocaust Museum serves as a stark and cogent reminder of how unchecked hatred can spiral into the genocide of countless millions of Jews and others who were singled out by Nazi Germany for no other reason than that they were different. Unfortunately, Mr. President, as recent events suggest, we do not have to look back sixty years to find example of inhumanity fostered by hate. We can look across the oceans to Kosovo, where the consequences of ``ethnic cleansing,'' mass rapes, and rampant crime, all point to the utter disregard for life and human dignity. Mr. President, American values do not include attacking those who are ``different'' or those with whom we disagree. No one here can reasonably argue that violently attacking a person because of his or her race, gender, disability, or sexual orientation is an acceptable form of behavior. No one here can reasonably argue that protecting American values should not include protecting women, disabled persons, or gays and lesbians from hate crimes. And no one here today need fear a breakdown of society simply because we extend Federal protection from acts of violent prejudice to those members of our society who currently face such an extraordinary threat of hate violence. Instead, as Americans, we value the freedom to be individuals. We value the freedom to express ourselves peacefully. And, above all, Mr. President, we value freedom from fear and tyranny. And, what we must take from the experience of World War II and Kosovo is that our nation must never sit still and permit acts of hatred to go unpunished and undeterred. That is why, if we truly want to defend American values, we should work to give our citizens protection from those who would do them harm simply based upon their race, gender, disability or sexual orientation. And, the Hate Crimes Prevention Amendment aims to send a message to our nation and the world that the singling out of an individual because of race, religion, sexual orientation, gender or disability will not go unnoticed or unpunished. The Hate Crimes Prevention Amendment will make certain that those who commit violent acts because someone is of the ``wrong gender, religion, race, sexual orientation, or disability'' will be prosecuted because everyone, I repeat, everyone has a right to be free from violence and fear when they are going to school, work, travel, or doing something as simple as going to a movie. Mr. President, I urge adoption of the Hate Crimes Prevention Amendment, which includes this important measure. I also urge the conferees on the Commerce, Justice, States appropriations bill to maintain this position during the conference. All Americans, and our future generations, deserve no less.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I thank the Chairman and Ranking Member for their encouraging words. As I am sure they know, the SCAAP reimbursements provided in prior years did not nearly cover the costs states and localities incurred to incarcerate illegal aliens in their jurisdictions. In fiscal year 1998, the last year for which such cost figures are available, the cost for states and localities amounted to $1.7 billion. Thus, last year's funding level covered only 30 percent of actual costs. A cut along the magnitude of that which is included in the Committee bill would be absolutely devastating. I understand the House CJS Subcommittee is recommending an FY00 SCAAP funding level of $585 million. I will work closely with the Chairman and Ranking Member and others in both bodies during the weeks to come to assure that the conference on this bill adequately funds this program.

Mrs. FEINSTEIN. Mr. President, I would like to inquire of my friend, the Senator from New Hampshire, about funding in this measure for the State Criminal Alien Assistance Program, popularly known as the SCAAP. As the Senator knows, states and localities, especially those such as California with high immigrant populations, face extraordinary costs in incarcerating illegal aliens who have committed serious crimes in the United States and sentenced for their felony offenses. The burden on states and localities which incarcerate criminal aliens continues to grow. In California, for example, during February 1997, there were 17,904 criminal alien inmates with INS holds on them. This rose to 19,355 in 1998. At the end of February, 1999, there were 21,792 alien inmates in the California state correctional system who have INS holds. Congress appropriated $585 million for SCAAP in fiscal year 1999 to help reimburse state and local governments for the costs of incarcerating illegal aliens. Given the increasing numbers of illegal aliens that California and other states must incarcerate, one would reasonably expect that funding for this important program would be increased in fiscal year 2000. But it is my understanding, Mr. President, that the bill reported by the committee actually makes dramatic cuts in federal funding for SCAAP, reducing the level of funding by more than 80 percent to only $100 million. Given the urgency of the need and the fact that all 50 states, the District of Columbia, two territories and 244 localities received SCAAP funding in the most recent reimbursement period, I would like to inquire of my friend from New Hampshire if there is something that can be done to increase funding in this bill for SCAAP to a more appropriate level.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to discuss my concerns about appropriations for the census--an issue that is critical for the State of California and for the Nation. The Commerce, Justice, and State Appropriations bill for FY 2000 allocates $2.8 billion for census operations. It does not include the additional $1.7 billion that the Administration requested to pay for its revised census plan. This funding shortfall will certainly result in an undercount in the 2000 Census. In the 1990 Census, California lost $2.2 billion because not everyone was counted, and that's not fair. Although the Administration's request was submitted late in the appropriations process, it is crucial that we equip the Census Bureau with the funds necessary to make the Census 2000 as accurate as possible. How can the Census Bureau do its best to carry out an accurate census in 2000, if they do not have the appropriate resources? We can be sure that the Census 2000 will fail if the Census Bureau does not have the extra $1.7 billion it needs for this operation. The census has real impact on the lives of people across the Nation. Information gathered from the census count determines how nearly $200 billion of federal funds are allocated. In addition, census information is used by states and local governments to plan schools and highways, and by businesses in making their economic plans. The 1990 Census undercounted the U.S. population by more than eight million Americans (mostly children, the poor, and communities of color), and more than four million Americans were counted twice. In California alone, the 1990 Census missed more than 834,000 people. A disproportionate number of those undercounted in California were minorities: Nearly half the net undercount--47 percent--were Hispanic- American. Twenty-two percent were African-American and eight percent were Asian Pacific-American. Such differences in census coverage introduce inequities in political representation and in the distribution of funds. Communities from these undercounted ethnic minority populations have been disadvantaged by not receiving the resources they need for various government programs. A recent study by the General Accounting Office estimates that the economic consequences of the undercount in California caused my state to lose over $2.2 billion in federal funds, more than any other state and more than the additional appropriations requested by the Administration. As a result, the state did not get its fair share of funds for Medicaid, Child Care and Development, Rehabilitation Services, Adoption Assistance, and Foster Care, to mention only a few of the federal grant programs affected. Each person missed in the census cost California $2,660 in Federal funds over the decade. Some of the top 10 undercounted cities in the 1990 census, two of which are from my state, include: Los Angeles (138,808); San Diego (32,483); Chicago (68,315); Houston (66,748); Dallas (37,070); Detroit (28,206); and Philadelphia (23,365). Unless the Census Bureau is allowed to carry out its plan to produce a more accurate count than that which was produced in 1990, California and other states will again lose billions of dollars in federal assistance and will again have to subsidize federal programs with state and local tax dollars. Since the flawed 1990 population count, the Census Bureau has worked with experts from across the country to design a more accurate census for 2000. The National Academy of Sciences, in three separate reports, concluded that the key to improving accuracy in the census is the use of sound statistical methods. Earlier this year, the Supreme Court ruled that the Census Bureau could not use statistical sampling for apportionment purposes. Because the Census Bureau cannot use sampling, it has revised its census plan and requested additional appropriations to carry out a full enumeration census, using mail-back census forms and employing an army of bureau workers to personally and repeatedly visit those who do not respond. The Census Bureau's operational plan for carrying out the 2000 Census will be the largest peacetime effort in our nation's history, and will employ more than 860,000 temporary workers. Mr. President, Congress must make every effort to support the Census Bureau's plan to count all Americans in 2000. The census should not be about politics. This is an issue of fairness, that impacts Americans nationwide. I urge my colleagues to support the additional $1.7 billion appropriation that the Census Bureau needs to carry out an accurate census in 2000. We must do everything we can to ensure that everyone is included in the count, and that our communities are provided with the resources we need. I suggest the absence of a quorum.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, it is with real pleasure that I rise today to note the swearing-in this afternoon of California State Senator Diane Watson as United States Ambassador to the Federated States of Micronesia. Senator Watson's confirmation was a long time coming, and I am proud that today she will finally come to occupy the Ambassadorial posting which she so well deserves. State Senator Watson was the first African-American women elected to the California State Senate, and has represented California's 26th District--which includes Los Angeles, Culver City, Ladera Heights, Baldwin Hills, Palms, Miracle Mile, Mar Vista, Cheviot Hills, and Koreatown--since 1978. Senator Watson has been a real leader in California politics and community life, and has been in the forefront of the fight for civil rights and human rights in Los Angeles and the entire state of California for her entire career. She was a dedicated crusader in the desegregation of Los Angeles school, and, in 1975, became the first elected African American to serve on the Board of Education of the Los Angeles Unified School District. Prior to her elected office, Senator Watson led a distinguished career in the field of education, including service as an assistant superintendent of child welfare, a school psychologist, and as a member of the faculty at both California State university Los Angeles and Long Beach. She has also traveled extensively, participating in numerous international conference on women's health issues, democracy building, and trade. As a member of the State Senate and as an educator, Diane Watson has always brought honor to the organizations and people she has represented. For many years now she has been a leader in improving the lives of Californians, and I am pleased that the people of the United States will now also be able to benefit from her experience, energy, and talents as our Ambassador to the Federated States of Micronesia.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I want to call my colleagues attention to a new effort in California, the International Museum of Women. Elizabeth Colton, the president of the Board of Directors of the International Museum of Women is building broad support among community leaders and public officials. The museum will be built in San Francisco, since this city has roots which reach virtually every corner of the globe. The museum will start construction in 2003, and the total cost of the museum is $50 million. Women have made important contributions and this museum can help us to better explore the role of women in history. This museum will seek to not simply bring recognition to women and their contributions, but it will re-examine history to more accurately incorporate the effects and implications of women's actions and ideas. The museum's educational programs can play a significant role in shaping how society views women and girls. In addition, International Museum of Women can provide role models for women and girls, furnish a new context for historical interpretations, and portray the importance and existence of the historic, ongoing fight for equal rights. This museum can open the doors to endless possibilities and limitless opportunities for females. I call on my colleagues to join me in saluting the International Museum of Women, as one way to eradicate inequality and open doors to opportunity.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, as the Senator from Georgia so well stated, this legislation is patterned after the President's Executive order that he issued in 1995 which targeted the assets of the powerful Colombian drug kingpins. That order expanded the International Emergency Economic Powers Act to include ``specially designated narcotics traffickers.'' As issued, the President's Executive order applied to four drug traffickers affiliated with the Colombian Cali cartel. The goal is to completely isolate those targeted drug traffickers. The Executive order blocks any financial, commercial, and/or business dealings with any entity associated with those named traffickers--to include criminal associates, associated family members, related businesses, and financial accounts. The way this amendment would work is the Treasury Department's Office of Foreign Assets Control would develop a list of specially designated narcotics traffickers worldwide in consultation with the Department of Justice, the CIA, and the Department of State. The President could amend the list, and he would officially sign off on the list. Then that Treasury Department's Office of Foreign Assets Control would enforce sanctions with criminal penalties of up to $500,000 per violation for corporations, and $250,000 for individuals, as well as up to 10 years in prison. It is a meaningful sanction. By focusing on the financial relationship between drug cartels and their associated business relationships, the Executive order--and now this amendment--is directed toward those entities that created the drug problem in our country. And those entities can be located anywhere in the world. They are major drug traffickers. This order has proven successful in quelling the Colombian Cali cartel. This amendment expands it worldwide. Under this Executive order, more than 400 Colombian and other companies and individuals affiliated with drug trafficking have been targeted by the Treasury Department. These entities are denied access to banking services in the United States and Colombia. Existing bank accounts have actually been shut down. As a result, more than 400 Colombian accounts have been closed. That has affected over 200 companies and individuals engaged in drug trafficking. By February 1998, through the President's Executive order, over 40 of these companies with estimated combined annual sales of over $200 million have been forced out of business. The Rodriguez Orejuela business of the Cali cartel has been particularly damaged by their lack of access to banks in the United States and Colombia. These companies have been forced to operate largely on a cash basis because most banks now refuse to provide them services. One of the cartel's holdings, Laboratorios Kressfor, eventually went through liquidation because of blocking actions by the U.S. banks. Other business accounts were closed because of the sanctions it incurred as a result of doing business with drug traffickers. This company, too, is now in liquidation. Drug cartels today are more powerful, more violent, and have a far greater reach than traditional organized crime organizations ever had in the past, and they kill more people. I believe they pose a most significant threat to the national security of this country. We have seen that destructive power over and over again. In Colombia, Mexico, Burma, Cambodia, Nigeria, and elsewhere drug traffickers have used violent means to pursue their deadly trade. They are the common enemy of all civilized nations. We need to work together to meet this common threat. The United States is not immune from the devastating effects of global drug trade. Measured in dollar values, at least four-fifths of all illicit drugs consumed in the United States are of foreign origin. Four-fifths of drugs consumed in the United States are of foreign origin, including virtually all of the cocaine and heroin. These cartels have now made strong inroads in major cities including Los Angeles, Phoenix, Dallas, San Francisco, and San Diego. They are enlisting and have enlisted street gangs as distributors. They are spreading their operations throughout our Nation and arrests are taking place in less likely places--Des Moines, IA; Greensboro, NC; Yakima, WA; New Rochelle, NY. The President's 1995 Executive order targeting the Cali cartel in Colombia was an effective means of isolating the cartel and its affiliated businesses. It choked off vital revenue streams and helped the Colombian Government take down the cartel. With the authority to reach countries beyond Colombia, the President can now work, if this amendment is passed, to isolate other major criminal drug syndicates around the world and impose upon them and their associates a similar fate to that of the Cali cartel. It is my hope that with a new emphasis on this expanded authority and with the concerted intelligence effort to develop sufficient data about the cartels and their associates in this country and abroad, the United States will be able to work with our allies to expose, isolate, and cut off the major drug-trafficking syndicates that pose a threat to all of our societies. This crucial mission can only be accomplished together. We must work together to see that our governments are properly equipped to carry it out successfully. To that end, this amendment establishes clear procedures through which the Treasury Department, the Justice Department, the CIA, and the Defense Department can gather information, share that information with their counterparts, and make recommendations to the President as to those cartels that represent the greatest risk to our Nation. Coordinated by the Office of Foreign Assets Control in the Department of Treasury, the expanded program will target new international drug cartels with the same successful financial choke holds that worked so well in Colombia. This will not be an easy process. The results will not be immediate. A great deal depends on intelligence and its availability. It also must be applied universally. This legislation is a serious effort to hit the world's major traffickers where they live and to put them and their associates out of business. I thank Senator Coverdell for working so tirelessly with me on this bill. I thank my colleagues on both sides of the aisle for supporting our efforts. I yield the floor.

Mrs. FEINSTEIN. Mr. President, I thank the Chair. I want to begin by thanking the Senator from Georgia. We have been at this for a few years now. I want him to know it has been a great pleasure for me to work with him, and I thank him for the leadership and the spirit he has shown on this issue. It has been very heartening for me to work across that center divide and hopefully see this amendment finally enacted today, and hopefully after going to the House in conference, come back here, and then be signed by the President.

Mrs. FEINSTEIN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President. I am pleased to introduce the ``Ninth Circuit Court of Appeals En Banc Procedures Act of 1999.'' As the largest circuit in the country, the Ninth Circuit faces unique difficulties. While this size has certain advantages, including creating a uniform body of federal law along the Pacific Coast of the United States, it also creates organizational and procedural challenges which must be addressed for the court to do its job effectively. The bill I am introducing today requires organizational and procedural reforms which will help the court to meet these challenges. The United States Department of Justice, which is the most frequent litigant before the Ninth Circuit--participating in 40% of its cases-- has specifically identified reform of the en banc review process as critical to resolving the existing problems on the Ninth Circuit. ``From our perspective as litigants, the Ninth Circuit's shortcoming is traceable not principally to its large number of judges or geographical size, but rather to its failure effectively to address erroneous panel decisions in important cases . . . .'' The ``Ninth Circuit Court of Appeals En Banc Procedure Act'' will institute three major changes to Ninth Circuit court procedures: (1) it reduces the number of judges required to call for an en banc hearing; (2) it increases the size of en banc panels from 11 to a majority of the Circuit; and (3) it requires the establishment of a system of regional calendaring. First, this legislation would grant the Ninth Circuit a dispensation to lower the statutory requirement that a majority of the Circuit's active-service judges must vote affirmatively to rehear a case en banc. Instead, 40 percent of the judges sitting on the Ninth Circuit would be sufficient to request an en banc hearing. In recent years, too many en banc requests at the Ninth Circuit have been disregarded by the Court. In 1996, the Ninth Circuit voted on 25 en banc requests by its judges, but only agreed to 12 en banc hearings. In 1997, the Ninth Circuit considered 39 en banc requests, but only held 19 hearings. In 1998, the Ninth Circuit entertained 45 en banc requests, but the Circuit only agreed to hold 16 en banc panels. The Supreme Court, our nation's highest and most venerated court, requires less than a majority of its members to consider a case. It is simply common sense that the Ninth Circuit should not have a higher burden for hearing a case en banc than the Supreme Court uses to grant certiorari. Lowering the bar to en banc hearings will enable the Ninth Circuit to resolve a greater percentage of conflicts before they reach the Supreme Court. A second provision of this legislation will increase the size of Ninth Circuit en banc panels from the current 11 judges to a majority of the Ninth Circuit. Except for the Ninth, the Fifth, and the Sixth circuits, all en banc panels sit as an entire court. Eleven judges selected from a 28 judge circuit are insufficient to give litigants or the general public confidence that an en banc decision reflects the views of the entire circuit. By increasing the size of the panels, the Ninth Circuit will have more judges to raise, identify, and resolve potential conflicts in controversial cases. Critics have also objected to the Ninth Circuit because of its geographical expanse, as it ranges from Hawaii to Alaska to Arizona. It is charged that judges unfamiliar with the history of a particular region often sit on panels that decide regional issues. The Federal courts are a national court, with a responsibility to apply a single, coherent Federal law across the states. The states of the Ninth Circuit have benefitted from this harmonizing influence. For example, the Ninth Circuit has created a consistent body of maritime law on the West Coast. At the same time, to address both the appearance of regional bias and any actual regional bias that does exist, this bill would require the Ninth Circuit to have geographical representation on its panels. The Ninth Circuit presently has three administrative units--a Northern, a Southern, and a Central unit. Under this legislation, at least one judge from the particular geographic unit would be assigned to cases arising in that unit. Thus, if an appeal was filed in Alaska, a judge from the Northern region would sit on the case. Similarly, if an appeal was filed in San Francisco, a Central region judge would sit on the case. To the degree that the Ninth Circuit has stepped outside the mainstream of jurisprudence, this legislation enacts reforms that will help corral stray decisions. I look forward to working with my fellow Senate and House colleagues in enacting this reform. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President. I am pleased to introduce the ``Ninth Circuit Court of Appeals En Banc Procedures Act of 1999.'' As the largest circuit in the country, the Ninth Circuit faces unique difficulties. While this size has certain advantages, including creating a uniform body of federal law along the Pacific Coast of the United States, it also creates organizational and procedural challenges which must be addressed for the court to do its job effectively. The bill I am introducing today requires organizational and procedural reforms which will help the court to meet these challenges. The United States Department of Justice, which is the most frequent litigant before the Ninth Circuit--participating in 40% of its cases-- has specifically identified reform of the en banc review process as critical to resolving the existing problems on the Ninth Circuit. ``From our perspective as litigants, the Ninth Circuit's shortcoming is traceable not principally to its large number of judges or geographical size, but rather to its failure effectively to address erroneous panel decisions in important cases . . . .'' The ``Ninth Circuit Court of Appeals En Banc Procedure Act'' will institute three major changes to Ninth Circuit court procedures: (1) it reduces the number of judges required to call for an en banc hearing; (2) it increases the size of en banc panels from 11 to a majority of the Circuit; and (3) it requires the establishment of a system of regional calendaring. First, this legislation would grant the Ninth Circuit a dispensation to lower the statutory requirement that a majority of the Circuit's active-service judges must vote affirmatively to rehear a case en banc. Instead, 40 percent of the judges sitting on the Ninth Circuit would be sufficient to request an en banc hearing. In recent years, too many en banc requests at the Ninth Circuit have been disregarded by the Court. In 1996, the Ninth Circuit voted on 25 en banc requests by its judges, but only agreed to 12 en banc hearings. In 1997, the Ninth Circuit considered 39 en banc requests, but only held 19 hearings. In 1998, the Ninth Circuit entertained 45 en banc requests, but the Circuit only agreed to hold 16 en banc panels. The Supreme Court, our nation's highest and most venerated court, requires less than a majority of its members to consider a case. It is simply common sense that the Ninth Circuit should not have a higher burden for hearing a case en banc than the Supreme Court uses to grant certiorari. Lowering the bar to en banc hearings will enable the Ninth Circuit to resolve a greater percentage of conflicts before they reach the Supreme Court. A second provision of this legislation will increase the size of Ninth Circuit en banc panels from the current 11 judges to a majority of the Ninth Circuit. Except for the Ninth, the Fifth, and the Sixth circuits, all en banc panels sit as an entire court. Eleven judges selected from a 28 judge circuit are insufficient to give litigants or the general public confidence that an en banc decision reflects the views of the entire circuit. By increasing the size of the panels, the Ninth Circuit will have more judges to raise, identify, and resolve potential conflicts in controversial cases. Critics have also objected to the Ninth Circuit because of its geographical expanse, as it ranges from Hawaii to Alaska to Arizona. It is charged that judges unfamiliar with the history of a particular region often sit on panels that decide regional issues. The Federal courts are a national court, with a responsibility to apply a single, coherent Federal law across the states. The states of the Ninth Circuit have benefitted from this harmonizing influence. For example, the Ninth Circuit has created a consistent body of maritime law on the West Coast. At the same time, to address both the appearance of regional bias and any actual regional bias that does exist, this bill would require the Ninth Circuit to have geographical representation on its panels. The Ninth Circuit presently has three administrative units--a Northern, a Southern, and a Central unit. Under this legislation, at least one judge from the particular geographic unit would be assigned to cases arising in that unit. Thus, if an appeal was filed in Alaska, a judge from the Northern region would sit on the case. Similarly, if an appeal was filed in San Francisco, a Central region judge would sit on the case. To the degree that the Ninth Circuit has stepped outside the mainstream of jurisprudence, this legislation enacts reforms that will help corral stray decisions. I look forward to working with my fellow Senate and House colleagues in enacting this reform. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise in opposition to the motion made by the Senator from New Hampshire to discharge S.J. Res. 27, which would disapprove of the President's recommendation of normal trade relations with China, from further consideration by the Committee on Finance. My opposition to this motion is based both on procedural grounds as well as my opposition to the policy goals advocated by the proponents of this motion. Aside from these procedural questions raised by this motion --whether the Senate should act in advance of the House and whether the committee should be discharged of this resolution before it has the opportunity to give it full consideration--which have been eloquently addressed by the chairman and ranking member of the Finance Committee, there is also a real factual question raised by this motion which must also be addressed. The factual question is this: Is it in the U.S. interest to continue to extend normal trade relations to China? In my view it is. The United States extends NTR to all but a handful of rouge states: North Korea, Afghanistan, Cuba, Laos, and the Former Republic of Yugoslavia (Serbia and Montenegro). Even Iraq and Iran--two countries which the United States is trying to isolate--currently have NTR. Placing China on a short list or rouge nations to whom we deny NTR would be an irreversible step in the wrong direction and a severe blow to the national interest of the United States. Let us remember, we do not extend NTR to China as a favor to China, but because maintenance of NTR with China is in our national interest. It is in our national interest as a matter of simple economics. The United States benefits from, and should continue to foster, free and fair trade with China. In 1991, United States-China bilateral trade totaled $25 billion. Last year it was close to $85 billion. In 1991 China was our eighth largest trading partner. Today it is our fourth, and still moving up fast.U.S. trade with China supports hundreds of thousands of American jobs. Revoking China's NTR status would be shooting ourselves in the foot. Indeed, for my state, California, the growth of trade relations with China over the past decade has been just as dramatic. In 1998, exports to China and Hong Kong together were California's fourth largest export destination. In 1998, while California's total exports declined 4.17%, due to the Asian financial crisis, our exports to China (not including Hong Kong) increased 9.28%. Critics of United States-China trade relations may argue that even though U.S. exports to China have more than doubled in the past decade, Chinese exports to the U.S. have gone up even faster, resulting in a sizable trade deficit. I would reply that this underscores the importance of normalizing and improving our trade with China through continued NTR: U.S. companies must get continued and better access to emerging Chinese markets. Extension of NTR is in our national interest because the United States will benefit by the further integration of China into the world trading system. The stakes are huge. Extension of NTR is a necessary precursor for Chinese accession to the WTO, which presents us an historic opportunity to integrate China--soon to be the world's largest economy--into the international trading system. Extension of NTR is in our national interest because having China in the world trading system levels the playing field. The WTO's system of reporting, compliance, and dispute resolution would require China to play by same rules all WTO members follow. Extension of China's NTR status is in our national interest because history has shown us that, despite the turmoil of the past few months, U.S. trade and engagement with China has encouraged economic, political, and social change in China. These changes have improved the living standards for millions of Chinese and reduced cold-war tensions. Those who are serious about seeing China continue to change will understand and realize that extension of NTR is the best course of action for the U.S. to follow. There is no question that China's political system remains undemocratic. But we should not fail to acknowledge the progress that has been made over the past two decades, thanks in part to the leverage provided by U.S. trade. To acknowledge this change is not to minimize the real problems that do exist; it is only to recognize that changes are taking place, and that many of these changes are a direct result of greater engagement with the West. To seek to deny China NTR status is tantamount to seeking to slam shut the Chinese people's door to a free world, and consigning them to isolation and repression. That is certainly not in our national interest, and it is not in the interest of the Chinese people, either. Mr. President, I urge my colleague to oppose this motion.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, my heart is heavy because, as I believe the Senator from Vermont knows, I was the lead Democratic sponsor of the D'Amato bill on mastectomy and cancer rights in the last Congress. Then Senator Snowe became the lead Republican author on it when Senator D'Amato left the Senate and I am the lead Democratic sponsor in this Congress. So I feel very strongly about this bill and the amendment before us. But what I see in the tactics being used is of very deep concern to me. Yesterday, we saw the Frist language on medical necessity essentially wiping out the Democratic language requiring that medical necessity be based on generally accepted principles of medicine. Our amendment would have covered a hospital stay for mastectomy as well any other hospital stay, by simply giving the physician the responsibility to make the call on how long a patient should stay in the hospital. Now we have these individual cases like hospitalization for mastectomy. It is a very strong case that the Senator from Vermont makes. I myself saw, in 1996, where a major HMO in California was doing a same-day mastectomy and women who had surgery at 7:30 in the morning were being pushed out on the street in the afternoon, not recovered from anesthetic, with drains in their body, not knowing where they were or how to care for themselves. That simply is not the good practice of medicine. So I think all of us have resolved that we want to do something about this situation. But at the same time, you give us a Hobson's choice, and that is unfortunate because Senator Dodd's amendment, requiring plans to cover the routine costs of clinical trials, is a good amendment. I am the vice chairman of a national cancer dialogue initiated by the American Cancer Society. President George Bush is the chairman. Not too long ago I had the pleasure of spending the day with President Bush on one side of me and Mrs. Bush on the other while I chaired a meeting of the cancer dialogue. One of the outstanding results of that particular day was strong support for more access to clinical research trials. The entire clinical trial research effort is not going to be successful unless there is more access to these trials, and particularly by the minority population where participation is very small, largely because managed care plans do not cover the non-research, routine costs of care. Therefore, Senator Dodd's amendment is timely, it is necessary, it is scientifically correct, it will help us speed these trials, add more trials, and it will mean a quicker cures for diseases if we pass the Dodd amendment. The Hobson's choice, for those of us who have worked on this now for over 3 years, is that by voting for Senator Snowe's amendment, we negate the Dodd amendment. That is not right. It is not good medicine. It is not good politics. I, too, join in complimenting my colleague and friend from California and the Senator from Maryland, both of whom spoke eloquently on this. Please, please, please don't do this. Senator Dodd asked that his amendment be modified to include the Snowe amendment in his amendment. Twice I heard the Senator from California and the Senator from Maryland propound a unanimous consent request. I am also going to do the same thing. Don't present this body with this kind of Hobson's choice. Both amendments are necessary. Don't wipe out the clinical trials coverage amendment while attempting to put in patient protections for cancer patients. The American public deserves to be able to participate in clinical trials which, after all, could save your life, save the lives of the women of America, and men, because breast cancer affects men too. My father-in-law died of breast cancer when my husband was 10 years old. Please, don't do this. I, too, propound a unanimous consent request. I ask unanimous consent that S. 1344, the Daschle substitute, be modified with language from the Snowe amendment No. 1241 prohibiting drive-through mastectomies and coverage for second opinions.

Mrs. FEINSTEIN. Mr. President, today I want to talk about the importance of patients being able to see medical specialists. I support the Bingaman amendment to the HMO bill before us. As co-chair of the Senate Cancer Coalition, I am keenly aware of the importance of being able to see a doctor that has the expertise to properly diagnose and treat illnesses, particularly a complex or difficult-to-diagnose illness. There are hundreds of medical conditions that probably require a specialist and sooner or later we all have to visit with one--whether it be a dermatologist, a cardiologist, or an oncologist, to name a few. For cancer, here's how the American Cancer Society has expressed it: Diagnosing and treating cancer is complex, multi-stage process often involving many visits with an oncologist or other specialist. Timely referrals are critical. However, according to a poll [March 1997] by the Commonwealth Fund, 8 of 10 physicians in managed care plans report ``somewhat or very serious problems with being able to refer patients to specialists of their choice.'' This same poll also found that 22 percent of physicians with more than half of their patients in managed care plans say they have a direct disincentive to refer. The amendment before us would: Require plans to refer patients, who have conditions requiring treatment by a specialist, to specialists in a timely manner. If a qualified specialist is not available in the plan, it requires the plan to cover services provided by the outside specialist at no additional cost to the patient. If a qualified specialist is available in the plan, it requires the patient to pay any costs over what the plan would pay; Require plans to permit patients to designate specialists as their primary care physician, when the patient has a life-threatening, degenerative, or disabling disease requiring specialized care over a prolonged period of time, such as cancer or heart disease. The specialist would coordinate the patients' overall care; and Require plans to give patients with a condition requiring ongoing care, a standing referral to the specialist so that patients do not have to obtain a separate referral for each visit. We need to pass this amendment guaranteeing access to specialists because we have heard story after story about managed care plans refusing to let sick people see a specialist and using financial incentives to, for example, punish doctors who refer to specialists. A study reported in the November 19 New England Journal of Medicine found that 57 percent of physicians said they felt pressure from managed care plans to limit referrals. Sick people need specialized care. This amendment addresses the concerns of many doctors and patients who have shared their experiences with me. Specialists, from neurologists to pediatric nephrologists, report that plans regularly deny referrals for their specialized expertise. Even more troubling, these specialists report that they often still find themselves called for advice in these complicated cases without the benefit of ever having seen or examined the patient. Here are some examples: Dr. Jack Thomas, of Long Beach, California, in a Los Angeles Times article on May 13, 1999 said that one patient was ``in severe pain for several weeks while awaiting orthopedic consultation'' and that urgent consultation with gynecology was not approved after a two-week wait for another patient who continued ``to experience severe dysfunctional uterine bleeding.'' When the list of providers for the HMO did not have any physicians skilled in the treatment of brain tumors with which her daughter Sarah had been born (and as had been recommended by a neurosurgeon), Brenda Pederson, of San Mateo, California reports that her HMO told her ``we're not giving you second best, we're giving you what's on the list.'' Patients such as Sarah should not be limited to who is ``on the list,'' but should be able to go the doctor her mother and her doctor believe has the expertise to treat the illness. Dr. Jack Shohet, Director of Neurology, University of California, Irvine, has said, ``Delay of referral is very common in the area in which I practice.'' He gives the following example: A 48-year old woman presented to her primary care provider about 6 months before seeing Dr. Shohet, with complaints of an ear ache. She was treated with multiple courses of antibiotics over 5 months by her primary care physician. The primary care physician noted a large mass in her auditory canal and biopsied it. It was positive for squamous cell carcinoma. He then referred to her Dr. Shohet (who is out of network) for therapy. By this time, she had a fungating mass with metastasis and cancer and spread in her neck. She had to have an operation which necessitated sacrificing her hearing. He says, ``One wonders how extensive her disease would have been 5 months earlier had she been referred early on to a qualified specialist.'' Denial of care is the biggest ethical concern to a majority of younger physicians, according to the August 1998 California Physician. Having a standing referral to a specialist for ongoing care is important too. Patients should not have to continually return to their primary care provider for a referral when they have found a specialist who can treat that illness. California has a state law allowing enrollees who require continuing care to have standing referrals to specialists. Writing to me in March of this year, a constituent who has battled chronic disease for twenty years requiring multiple surgeries noted, ``I cannot underscore the incredible waste of time it is for patients with Crohn's disease to have to see two doctors for every visit to the gastroenterologist!!'' This bill requires a standing referral to specialists for persons who require ongoing care from specialists so that patients can get the care they need in a timely manner. Care by specialists benefits patients with chronic disease. Analyzing data about asthma patients in a major California HMO (Health Net), a report in the March 9, 1998 Archives on Internal Medicine concluded ``asthma specialists provided more thorough care than did primary care physicians.'' A 1997 study from the Mayo Clinic notes that ``outcomes, coordination, and patient satisfaction are superior when specialists have a central role'' in the management of chronic rheumatic and musculoskeletal diseases. Specialists' care is good business. Providing access to speciality care makes good business sense. Citing its ``market-driven design'' including use of focus groups, Blue Shield of California has been offering direct access to speciality care since 1998. Its ``Access Plus'' plan allows patients to go directly to a specialist for a fixed, $30 copayment per visit. In the May/June 1999 issue of Health Affairs, Blue Shield senior managers Kathleen Richard and Ken Wood report that the health plan is the fastest growing HMO in California. They also report that patient satisfaction has increased by 50 percent. And how much did this new program cost? Blue Shield found that the actual cost of the direct access program was much, much lower than even they themselves had forecast--fully 75 to 90 per-cent less than what they had anticipated. Providing prompt, continued access to specialists can also result in cost savings in a managed care environment. Dr. Roland Blantz who heads the Division of Nephrology at the University of San Diego noted in a visit to our office a seven-year Kaiser study in the Los Angeles area which showed highly significant savings when patients were referred to kidney specialists for evaluation and treatment of elevated creatinine levels. Our California experience shows that access to specialists can improve patients' health and increase plan satisfaction while keeping costs down. Delayed care hurts. The bill requires that plans provide timely referrals to specialists who are available and accessible. A December 1998 General Accounting Office report on specialty care found that heart attack survivors who were seen regularly by cardiologists have better compliance with medications, by a factor of almost 50 percent, over treatment by generalists. Having to wait weeks or even months to get an appointment with a specialists from an HMO is a frequent complaint. Mary Schriever of Cypress, California tried to get a referral from her HMO for psychiatric care for her son Bill who had performed self- mutilation on his arms by burning and carving himself. After two refusals over 18 months, they paid themselves for him to see a counselor. But even as his behavior deteriorated more, their further attempts to obtain the help of a specialist continued to be rebuffed. It was only in jail, after he was taken into custody by the police, that he finally saw a physchiatrist. Before being released and after a fight, he died of a brain hemorrhage. Some have said, HMOs are fine--until you get sick. A recent survey by Franklin Health entitled ``Facing Serious Illness in America'' and published on May 17, 1999, found that ``fully 6 out of 10 Americans believe that the current system is profoundly inadequate when it comes to dealing with medical catastrophes'' and that 93 per- cent of those surveyed believed that it is very important to have the right to choose one's own doctor regardless of plan. Patients should not have to fight for their health care. This amendment will ensure that when people are really sick and need to see experts, they can. They will be able to use often what little energy they have when ravaged by serious illness to obtain the specialized care they need to make important decisions at such critical times. I hope my colleagues will join me in passing this amendment.

Mrs. FEINSTEIN. Mr. President, I support the amendment offered by Senator Dodd to increase patient access to life-saving clinical trials. This amendment could assist in prolonging the lives of millions of patients with life-threatening or serious illnesses, for which no standard treatment is effective, by offering them access to new experimental therapies. Clinical trials are the primary means of testing new therapies for deadly diseases such as cancer, congestive heart failure, Alzheimer's, and diabetes. Many health insurance plans cover the patient's routine costs associated with clinical trials. Recently, however, research institutions--particularly cancer centers--are finding that managed care plans will not pay for the costs associated with clinical trials. For many patients whose conditions have not responded to conventional therapies, clinical trials may be the only viable treatment option available. The Dodd amendment requires health plans to cover the routine patient costs associated with these trials. Eligible patients are those with life-threatening or serious illnesses for which no standard treatment is effective, and those for whom participation offers meaningful potential for significant clinical benefit. Trials are limited to those approved and funded by one or more of the following: the National Institutes of Health (NIH); a cooperative group or center of the NIH; or, certain trials through the Department of Defense or the Veterans Administration. The Republican bill does not provide for coverage of any routine costs related to clinical trials. Instead, they require only a study on the issue. The Republican bill does not offer hope to patients who have exhausted all other options except the promise of experimental treatment. We should not have to tell the thousands of desperate women with terminal breast cancer that we need to study this issue some more before we can offer them access to clinical treatment that might save their lives. Republicans claim that we do not have enough information about the costs of clinical trials. They say we need, once again, yet another study. Every day we delay, with conversations about the need for another study which will undoubtedly demonstrate the continue importance of clinical trials, another patient suffers; another patient dies. The Republicans' claim that clinical trials are more expensive than conventional therapies is unjustified. The fact is that the cost of conventional therapies is not known with any precision. The cost varies case-by-case. Republicans claim that covering the cost of patient care in clinical trials would be too expensive. The Congressional Budget Office found that 90 percent of health plans already cover routine patient costs in clinical trials. In an attempt to block patient access to clinical trials, insurance companies try to claim that a clinical trial is more expensive than conventional therapy. However, at Memorial Sloan- Kettering Cancer Center in New York, the cost of treating pancreas, breast, colon, lung, and ovarian cancer pursuant to a clinical trial were compared to the costs of treating the same cancers with standard therapies. Utilizing Medicare patients for this comparison, the average cost per patient was actually lower for those patients enrolled in clinical trials. Let me explain who pays for trials. There are three categories of costs associated with a clinical trial: First, the cost of the investigational drug is provided free of charge by the pharmaceutical sponsor. Second, the costs associated with collecting and analyzing the data from the trial is covered by the trial sponsor through a federal research grant or other funding source (i.e., National Institutes of Medicine, Food and Drug Administration). Third, routine patient care costs--physician charges, hospital fees and routine diagnostic tests--are the only costs that managed care plans would be asked to cover for patients participating in clinical trials. And as I mentioned earlier, over 90 percent of health plans already cover routine patient costs in clinical trials. By early in the next century, Hispanics, African-Americans, and Native Americans will comprise nearly one-half of our nation's. In fact, Hispanics are the fastest-growing ethnic group in America today. This is alarming since heart disease, cancer, tuberculosis, HIV/AIDS and diabetes are disproportionally affecting minority communities. Some specific forms of cancer affect ethnic minority communities at rates up to several times higher than national averages. African- American males develop cancer 15 percent more frequently than white males. Although the rate of breast cancer among African-American women is not as high as that among white women, African-American women are more likely to die from the disease once it is detected. Cervical cancer is nearly five times more likely among Vietnamese American women than white women, and it disproportionally affects Hispanics. Liver cancer is more than 11 times higher among Vietnamese Americans than among whites. Colon and rectal cancer is higher among Alaska Natives than other ethnic groups. Lastly, American Indians experience the lowest cancer survival rate of any U.S. ethnic group. However, access to clinical trials is especially limited for racial and ethnic minorities. Of the people participating in clinical cancer trials, only 2-3 percent are minorities. The September Cancer March's Research Task Force said that one way of encouraging more participation is to require public and private insurers to cover the routine medical costs associated with clinical trials. Senator Dodd's amendment to the Patients' Bill of Rights does just that. In addition, women, the elderly, ethnic and racial minorities, and cancer patients are not participating in clinical trials proportional to the population. The September Cancer March's Research Task Force testified before the Senate Cancer Coalition that only 2 percent of cancer patients are enrolled in clinical trials. Of those participating, only 25 percent are elderly, even though the elderly represented some 63% of the cancer patient population during the mid- 1990s. Breast cancer is one of many diseases that cause more deaths among minorities than among white women. Researchers and patient advocates agree that understanding differences in disease progression requires the recruitment of a representative number of minorities to clinical trials. So why don't more ethnic/racial minorities participate in clinical trials? There are several reasons. Lack of access to health care and lack of insurance coverage are major reasons; 43 million Americans are uninsured. This number does not include the millions who are under-insured. In closing, real improvements in health care, advancements in medical knowledge, are possible only through increased scientific clinical research and development. We cannot lose sight of the fact that without continued clinical research and access to clinical trials, life threatening diseases such as cancer will continue to ravage communities. Encouraging participation in clinical trials is essential, if not crucial, to the millions of Americans who live daily with life- threatening diseases. The unrelenting focus by HMOs on cutting rather than focusing on the long-term quality of our health care system is harming the American people, and we are not gaining scientific knowledge. As our nation continues to move to a managed care based health system, patient enrollment in clinical trials is dropping. One of the reasons for this decline is the unwillingness of many health plans to cover routine patient care costs associated with participation in a clinical trial. This amendment to the Patients' Bill of Rights is the first step to ensuring access to clinical trials. We cannot continue to let HMOs put profits before patients.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I must respond to the Senator from Oklahoma because he mischaracterizes the Democratic plan. His statement might be correct if it were taken in an isolated sense. But if you take it with the medical necessity definitions on page 85 of the Democratic plan, you will see that ``a group health plan and a health insurer, in connection with a provision of health insurance coverage, may not arbitrarily interfere with or alter the decision of the treating physician regarding the manner or setting in which particular services are delivered if the services are medically necessary or appropriate for treatment.'' Then it goes on to define medical necessity as a service or benefit which is consistent with generally accepted principles of professional medical practice. It does not give the plan the opportunity in its fine print to throw out medical necessity.

Mrs. FEINSTEIN. Mr. President, the Senator from Massachusetts is absolutely correct. This amendment essentially puts into the bill the basic premise of the Republican plan, which is to let the HMO define what is medically necessary, decide what the treatment should be, what the length of hospitalization should be for a patient, not based on that patient, not based on medical necessity, but based on standards that individuals who have not even seen the patient determine. I must tell you I have a very real problem with that. The insurance plan would determine medical necessity, not the physician who sees the patient. It would substitute an independent review process for the knowledge and the skill of the independent physician who is actually seeing the patient, who has done the diagnosis, who knows the patient, the patient's history the patient's problems. This past week I spent a good deal of time in California talking with physicians and patients up and down the State. I probably talked with more than 50 people, including patients, hospital administrators, county medical societies of many different counties as well as the California Medical Association. What I found was a dispirited, demoralized medical profession because medical decisionmaking was being taken out of their hands. I learned that a physician would prescribe medication, the patient would go to the druggist to have the medication filled and the druggist would make a substitution, often without even the doctor knowing. The patient would say: I cannot take this drug. And the pharmacist would have to say: We cannot furnish what your physician prescribed because it was not on your plan's list. This is what we mean by medical necessity --the most appropriate medical treatment for that particular patient in the judgment of the treating physician. I contend there is not anyone who has not seen a patient, who doesn't know what patient is all about, who can adequately prescribe for that individual. That, in fact, is what is happening. Let me read a statement by someone who testified before a congressional House committee a couple of years ago in a hearing. This individual was the reviewer for an HMO. As an HMO reviewer, she countermanded a physician. Let me read her words: Since that day I have lived with this act and many others eating into my heart and soul. For me, a physician is the professional charged with the care of healing of his or her fellow human beings. The primary ethical norm is, `Do no harm.' I did worse. I caused death. Instead of using a clumsy weapon, I used the simplest, cleanest of tools, my words. This man died because I denied him a necessary operation to save his heart. I felt little pain or remorse at the time. The man's faceless distance soothed my conscience. Like a skilled soldier, I was trained for this moment. When any moral qualms arose I was to remember I am not denying care, I am only denying payment. That is why this Republican amendment is so fallacious. Let me read the actual language in the bill: A review of an appeal under this subsection relating to a determination to deny coverage based on a lack of medical necessity and appropriateness, or based on a experimental or investigational treatment, shall be made only by a physician with appropriate expertise including age appropriate expertise, who was not involved in the initial determination. My father, chief of surgery at the University of California, would turn over in his grave with this kind of language. That is not what someone goes to medical school and does a residency, does a surgical residency, does graduate school work for, to get overturned by an insurance company reviewer who has not even seen the patient. This amendment, I contend, is in the worst of medical practice because it allows a panel that has never seen the patient to make the determination of whether a patient gets a lifesaving operation, gets a drug that might make them well, gets a treatment from which the physician thinks they might benefit.

Mrs. FEINSTEIN. I thank the Senator very much. This has been a helpful clarification. I yield the floor.

Mrs. FEINSTEIN. Who have seen the patient.

Mrs. FEINSTEIN. In other words, if I may, through the Chair, if this amendment were to be adopted, every enrollee of an HMO plan would have to read the fine print very carefully, because all an HMO would have to do is put in a disclaimer, either medical necessity based on least cost or medical necessity based on the fact that the plan would have the ultimate say on how medical necessity is defined.