Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I am pleased to introduce the Platform Equality and Remedies for Rights-holders in Music Act, or the PERFORM Act, along with Senators Graham and Frist. The need to protect creative works has been an important principle recognized in our country since its inception. The founding fathers accurately understood the importance of intellectual property by including protective language in our Constitution, and in doing so they established a principle that would stand the test of time. However, they could not have predicted that the path of innovation would eventually produce the amazing new technologies that we now take for granted. While many of us still enjoy traditional analog radio, this, too, is rapidly changing. We now have music radio programs provided over the Internet, cable, and satellites. Even traditional radio is changing with the advent of new digital radio. With the entry into the marketplace of these new music providers consumers are receiving the songs and artists they enjoy in new and innovative ways. Yet, as these new business models and technologies are developed we must ensure that the artists and musicians who create and perform the music continue to be fairly compensated for their works. Unfortunately, some of the new innovations have been used to supplant music sales and avoid fair compensation to the songwriters and performers. From 1999 to 2004, total music sales have declined by 30 percent. Over the same period, CD sales declined 18 percent. The decline continued in 2005 as total album sales fell 7.2 percent year-over-year. Some of this decline is due to outdated business models and competition from other entertainment products, some due to illegal actions and piracy, and some is due to outdated music licensing laws. I believe our laws must strike the proper balance between fostering new business models and technology and protecting the property rights of the artists whose music is being broadcast. I strongly support advancements in technology and I encourage ingenuity. The birth of the digital music place has been a boon for businesses and consumers. It is important that these new forums succeed and grow. However, these new technologies and business models have become so advanced that the clear lines between a listening service and a reproduction and copying service has been blurred. Historically, a radio service simply allowed music to be performed and listened to by an audience. However, many new services using the new digital transmissions and new technological devices have allowed consumers to also record, manipulate, and collect individual music play-lists off their radio-like services. Thus, what was once a passive listening experience has turned into a forum where consumers can record, manipulate, reprogram and save songs to create their own personalized playlists. As the modes of distribution change and the technologies change, so must our laws change. The government granted a compulsory license for radio-like services by Internet, cable, and satellite providers in order to encourage competition and new products. However, as new innovations alter their services from a performance to a distribution the law must respond. In addition, as the changing technology evolves, the distinctions between the services become less and less, and the differences in how they are treated under the statutory license make less sense. Therefore I am introducing a bill that will begin to fix the inequities currently in the statute and open the door to further debate about additional issues that need to be addressed. The bill I am introducing today with Senators Graham and Frist would: create rate parity--all companies covered by the government license created in Section 114 would be required to pay a fair market value for use of music libraries rather than having different rate standards apply based on what medium is being used to transmit the music; and establish content protection--all companies would be required to use reasonably available, technologically feasible, and economically reasonable means to prevent music theft. In addition, a company may not provide a recording device to a customer that would allow him or her to create their own personalized music library that can be manipulated and maintained without paying a reproduction royalty. This does not mean such devices cannot be made or distributed. It simply means that the business must negotiate the payment for the music through the market rather than under the statutory license. The bill also contains language to make sure that consumers' current recording habits are not inhibited. Therefore, any recording the consumer chooses to do manually will still be allowed. In addition, if the device allows the consumer to manipulate music by program, channel, or time period that would still be allowable under the statutory license. For example, if a listener chooses to automatically record a news station every morning at 9:00; a jazz station every afternoon at 2:00; a blues station every Friday at 3:00; and a talk radio show every Saturday at 4:00; that would be allowable. In addition, that listener could then use their recording device to move these programs so that all programs of the same genre are back to back. What a listener cannot do is set a recording device to find all the Frank Sinatra songs being played on the radio-service and only record those songs. By making these distinctions this bill supports new business models and technologies without harming the songwriters and performers in the process. Unfortunately, anytime legislation is introduced there is a lot of misinformation about what it does. Often criticisms are lobbed without reviewing the actual text of the bill. So, let me be clear about some of the concerns I have heard. The bill would not apply to over-the-air broadcasting. Terrestrial radio, i.e. traditional radio distributed by the broadcasters is not covered under this bill. This legislation only covers businesses that are under the 114 license--Internet, cable, and satellite. The only application to broadcasters would be if they were to act as webcasters and simulcast their programs over the Internet, in which case they would be treated the same as all other Internet radio providers. The bill would not inhibit technological advances. It would place limits on the types of recording devices cable, Internet and satellite providers may offer, IF they want to enjoy the benefit of a government license. If, however, a company wants to offer new technologies that allow for manipulation of music so that a consumer may create their own music libraries, similar to a downloading service, they may. There is nothing in this bill prohibiting the use or creation of new technologies the company would simply lose the benefit of a government license. The bill simply states that if a company wants to change its service from a performance to a distribution then they no longer are covered by the government license and must go to the record companies directly to negotiate a licensing agreement through the market. The bill would not be discriminatory. Some argue that changing the rates or establishing content protection is discriminatory. However, under current law some businesses are required to pay higher licensing rates than others even though they provide essentially the same services. In addition, if a new satellite company were to be formed today they would be required to pay a higher rate than the current two companies in the market--that is not fair. Instead this bill would establish the same rates and protections for all companies. The argument that this bill is discriminatory ignores the inequities of current law as it applies to Internet, cable, old and new satellite providers and instead focuses on the differences between these new radio providers versus terrestrial or traditional over-the-air radio. The argument is that there are already devices available and new technologies that allow consumers to capture and manipulate music being played by over-the-air broadcasters. Yet this bill does not apply to broadcasters and instead only applies to Internet, cable and satellite. The conclusion being that by not covering broadcasters we are giving them a free pass and being unfair to the new businesses. While the obvious argument is that the Judiciary Committee does not have jurisdiction to regulate over-the-air broadcasters, I think it is important to acknowledge that the Commerce Committee is actively looking into this issue right now. In addition, I am aware that there are active negotiations occurring between broadcasters and the record labels to develop similar protections for their services. Thus, while some may be frustrated that jurisdiction may lie in different committees, efforts are on-going in each to address these issues. I do not believe we, in the Judiciary Committee, should wait and do nothing to protect artists and songwriters simply because the Commerce Committee has not yet moved legislation to deal with the same concern for terrestrial radio. Having said that, let me be clear, this is the beginning of a process to address a very specific problem. I believe that as the process unfolds there will be additional improvements or other issues that may need to be added. Already, some have raised questions about language in the bill and additional modifications to Section 114 that I believe should be looked at more closely. I understand there is some concern about what fair market value means, especially under a government licensing scheme where there is not an actual competitive market. I think it makes sense to look into this issue and see if there is a definition that can be developed. In doing this, I believe we should look at all the different models that have been used. We should look at what the courts have held, what the copyright office has used, what a real competitive market would entail, as well as other factors that may not have been considered. The bill as introduced does not address the other conditions applied to Internet, cable, and satellite services in order for them to get the benefit of the statutory license. The one that I am most concerned with is interactivity. I think there is real confusion about what is and what is not allowed under the current statute. How much personalization and customization may these new services offer? Currently licensing rates are higher for interactive services. However, there are clear disagreements as to what constitutes an interactive service. I tried to have the parties meet to negotiate a solution to this issue so that we could include new language this in the bill. However, after two weeks and hours and hours of negotiations the parties were so far apart that a solution could not be reached. Despite this, I still believe this is an important issue that must be addressed. Therefore, I put a placeholder in the bill that calls for the copyright office to make recommendations to Congress, but I am hopeful that through the process of moving this bill through the Senate we can develop a solution sooner rather than later. I am hopeful that the parties will again meet and try to develop a compromise, however, if that does not occur I may try to work with my colleagues to develop a legislative solution independently. Finally, some have raised concerns that applying content protection to all providers is unfair. They argue that if there is no connection between the distributor of the music and the technology provider that allows for copying and manipulating of performances then they should not be required to protect the music that they broadcast. In general, I do not agree. We know that there are websites out there now that provide so-called stream-ripping services that allow an individual to steal music off an Internet webcast. It is not enough to turn a blind eye to this type of piracy and do nothing simply because there is no formal connection between the businesses. At the same time, I am sympathetic to the concerns that if the type of technology a company uses is inadequate or ineffective, through no fault of their own, they can be saddled with huge mandatory penalties. I am willing to look at this issue more closely and see if there is some way to address this concern and find a compromise solution. As I have said, this is the beginning of the process. I think this legislation is a good step forward in addressing a real problem that is occurring in the music industry. Changes or additions may be necessary as the bill moves forward, but I believe to wait and do nothing does a disservice to all involved. Music is an invaluable part of all of our lives. The new technologies and changing delivery systems provide exciting new options for all consumers. As we continue to move forward into new frontiers we must ensure that our laws can stand the test of time. I look forward to working with my colleagues to pass this legislation. I ask unanimous consent that the text of the bill be printed in the Record along with letters of support for the legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I am pleased to introduce the Platform Equality and Remedies for Rights-holders in Music Act, or the PERFORM Act, along with Senators Graham and Frist. The need to protect creative works has been an important principle recognized in our country since its inception. The founding fathers accurately understood the importance of intellectual property by including protective language in our Constitution, and in doing so they established a principle that would stand the test of time. However, they could not have predicted that the path of innovation would eventually produce the amazing new technologies that we now take for granted. While many of us still enjoy traditional analog radio, this, too, is rapidly changing. We now have music radio programs provided over the Internet, cable, and satellites. Even traditional radio is changing with the advent of new digital radio. With the entry into the marketplace of these new music providers consumers are receiving the songs and artists they enjoy in new and innovative ways. Yet, as these new business models and technologies are developed we must ensure that the artists and musicians who create and perform the music continue to be fairly compensated for their works. Unfortunately, some of the new innovations have been used to supplant music sales and avoid fair compensation to the songwriters and performers. From 1999 to 2004, total music sales have declined by 30 percent. Over the same period, CD sales declined 18 percent. The decline continued in 2005 as total album sales fell 7.2 percent year-over-year. Some of this decline is due to outdated business models and competition from other entertainment products, some due to illegal actions and piracy, and some is due to outdated music licensing laws. I believe our laws must strike the proper balance between fostering new business models and technology and protecting the property rights of the artists whose music is being broadcast. I strongly support advancements in technology and I encourage ingenuity. The birth of the digital music place has been a boon for businesses and consumers. It is important that these new forums succeed and grow. However, these new technologies and business models have become so advanced that the clear lines between a listening service and a reproduction and copying service has been blurred. Historically, a radio service simply allowed music to be performed and listened to by an audience. However, many new services using the new digital transmissions and new technological devices have allowed consumers to also record, manipulate, and collect individual music play-lists off their radio-like services. Thus, what was once a passive listening experience has turned into a forum where consumers can record, manipulate, reprogram and save songs to create their own personalized playlists. As the modes of distribution change and the technologies change, so must our laws change. The government granted a compulsory license for radio-like services by Internet, cable, and satellite providers in order to encourage competition and new products. However, as new innovations alter their services from a performance to a distribution the law must respond. In addition, as the changing technology evolves, the distinctions between the services become less and less, and the differences in how they are treated under the statutory license make less sense. Therefore I am introducing a bill that will begin to fix the inequities currently in the statute and open the door to further debate about additional issues that need to be addressed. The bill I am introducing today with Senators Graham and Frist would: create rate parity--all companies covered by the government license created in Section 114 would be required to pay a fair market value for use of music libraries rather than having different rate standards apply based on what medium is being used to transmit the music; and establish content protection--all companies would be required to use reasonably available, technologically feasible, and economically reasonable means to prevent music theft. In addition, a company may not provide a recording device to a customer that would allow him or her to create their own personalized music library that can be manipulated and maintained without paying a reproduction royalty. This does not mean such devices cannot be made or distributed. It simply means that the business must negotiate the payment for the music through the market rather than under the statutory license. The bill also contains language to make sure that consumers' current recording habits are not inhibited. Therefore, any recording the consumer chooses to do manually will still be allowed. In addition, if the device allows the consumer to manipulate music by program, channel, or time period that would still be allowable under the statutory license. For example, if a listener chooses to automatically record a news station every morning at 9:00; a jazz station every afternoon at 2:00; a blues station every Friday at 3:00; and a talk radio show every Saturday at 4:00; that would be allowable. In addition, that listener could then use their recording device to move these programs so that all programs of the same genre are back to back. What a listener cannot do is set a recording device to find all the Frank Sinatra songs being played on the radio-service and only record those songs. By making these distinctions this bill supports new business models and technologies without harming the songwriters and performers in the process. Unfortunately, anytime legislation is introduced there is a lot of misinformation about what it does. Often criticisms are lobbed without reviewing the actual text of the bill. So, let me be clear about some of the concerns I have heard. The bill would not apply to over-the-air broadcasting. Terrestrial radio, i.e. traditional radio distributed by the broadcasters is not covered under this bill. This legislation only covers businesses that are under the 114 license--Internet, cable, and satellite. The only application to broadcasters would be if they were to act as webcasters and simulcast their programs over the Internet, in which case they would be treated the same as all other Internet radio providers. The bill would not inhibit technological advances. It would place limits on the types of recording devices cable, Internet and satellite providers may offer, IF they want to enjoy the benefit of a government license. If, however, a company wants to offer new technologies that allow for manipulation of music so that a consumer may create their own music libraries, similar to a downloading service, they may. There is nothing in this bill prohibiting the use or creation of new technologies the company would simply lose the benefit of a government license. The bill simply states that if a company wants to change its service from a performance to a distribution then they no longer are covered by the government license and must go to the record companies directly to negotiate a licensing agreement through the market. The bill would not be discriminatory. Some argue that changing the rates or establishing content protection is discriminatory. However, under current law some businesses are required to pay higher licensing rates than others even though they provide essentially the same services. In addition, if a new satellite company were to be formed today they would be required to pay a higher rate than the current two companies in the market--that is not fair. Instead this bill would establish the same rates and protections for all companies. The argument that this bill is discriminatory ignores the inequities of current law as it applies to Internet, cable, old and new satellite providers and instead focuses on the differences between these new radio providers versus terrestrial or traditional over-the-air radio. The argument is that there are already devices available and new technologies that allow consumers to capture and manipulate music being played by over-the-air broadcasters. Yet this bill does not apply to broadcasters and instead only applies to Internet, cable and satellite. The conclusion being that by not covering broadcasters we are giving them a free pass and being unfair to the new businesses. While the obvious argument is that the Judiciary Committee does not have jurisdiction to regulate over-the-air broadcasters, I think it is important to acknowledge that the Commerce Committee is actively looking into this issue right now. In addition, I am aware that there are active negotiations occurring between broadcasters and the record labels to develop similar protections for their services. Thus, while some may be frustrated that jurisdiction may lie in different committees, efforts are on-going in each to address these issues. I do not believe we, in the Judiciary Committee, should wait and do nothing to protect artists and songwriters simply because the Commerce Committee has not yet moved legislation to deal with the same concern for terrestrial radio. Having said that, let me be clear, this is the beginning of a process to address a very specific problem. I believe that as the process unfolds there will be additional improvements or other issues that may need to be added. Already, some have raised questions about language in the bill and additional modifications to Section 114 that I believe should be looked at more closely. I understand there is some concern about what fair market value means, especially under a government licensing scheme where there is not an actual competitive market. I think it makes sense to look into this issue and see if there is a definition that can be developed. In doing this, I believe we should look at all the different models that have been used. We should look at what the courts have held, what the copyright office has used, what a real competitive market would entail, as well as other factors that may not have been considered. The bill as introduced does not address the other conditions applied to Internet, cable, and satellite services in order for them to get the benefit of the statutory license. The one that I am most concerned with is interactivity. I think there is real confusion about what is and what is not allowed under the current statute. How much personalization and customization may these new services offer? Currently licensing rates are higher for interactive services. However, there are clear disagreements as to what constitutes an interactive service. I tried to have the parties meet to negotiate a solution to this issue so that we could include new language this in the bill. However, after two weeks and hours and hours of negotiations the parties were so far apart that a solution could not be reached. Despite this, I still believe this is an important issue that must be addressed. Therefore, I put a placeholder in the bill that calls for the copyright office to make recommendations to Congress, but I am hopeful that through the process of moving this bill through the Senate we can develop a solution sooner rather than later. I am hopeful that the parties will again meet and try to develop a compromise, however, if that does not occur I may try to work with my colleagues to develop a legislative solution independently. Finally, some have raised concerns that applying content protection to all providers is unfair. They argue that if there is no connection between the distributor of the music and the technology provider that allows for copying and manipulating of performances then they should not be required to protect the music that they broadcast. In general, I do not agree. We know that there are websites out there now that provide so-called stream-ripping services that allow an individual to steal music off an Internet webcast. It is not enough to turn a blind eye to this type of piracy and do nothing simply because there is no formal connection between the businesses. At the same time, I am sympathetic to the concerns that if the type of technology a company uses is inadequate or ineffective, through no fault of their own, they can be saddled with huge mandatory penalties. I am willing to look at this issue more closely and see if there is some way to address this concern and find a compromise solution. As I have said, this is the beginning of the process. I think this legislation is a good step forward in addressing a real problem that is occurring in the music industry. Changes or additions may be necessary as the bill moves forward, but I believe to wait and do nothing does a disservice to all involved. Music is an invaluable part of all of our lives. The new technologies and changing delivery systems provide exciting new options for all consumers. As we continue to move forward into new frontiers we must ensure that our laws can stand the test of time. I look forward to working with my colleagues to pass this legislation. I ask unanimous consent that the text of the bill be printed in the Record along with letters of support for the legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to acknowledge and commemorate April 24, 2005, the 91st anniversary of the beginning of the Armenian genocide. I do so because I believe it is necessary to recognize and ensure that similar atrocities do not happen in the future. No one knows this better than the 500,000 Armenians who are living in my home State of California. These men, women, and children are a shining example of the backbone of our society and serve as a symbol of perseverance and determination. Their ancestors came to our country to build a better life for themselves and their families, and today, Armenian-Americans recognize that the repercussions of allowing aggression and injustice against ethnic, religious, or minority groups to persist can be dire. During the Armenian genocide, which took place between 1915 and 1923, over a million Armenians were killed, and another 500,000 were driven from their homes. We must never again allow a human tragedy to occur on this scale. It is unacceptable to witness thousands of innocent victims suffer and die without taking any action. And I know this issue not only resonates with the Armenians in California but with everyone in the country. Every day, numerous constituents from different backgrounds call my office asking what Congress and the administration are doing to prevent genocide from occurring again. It is absolutely essential that we do not let history repeat itself. We can--and we must--do better. The Armenian-American community knows this all too well and today, we stand with them in commemorating the start of the Armenian genocide. So let us renew our commitment to support those around the world who face persecution and even death simply because of who they are. We will never forget the Armenian genocide, and we look to the present and future with a newfound sense of hope and optimism so that we may have the strength to stand up and prevent such atrocities.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I offer these words on behalf of Senator Boxer, my friend and colleague, and myself. Senator Craig said it correctly. Senator Boxer and I have more illegal people in one county than most Senators have in their entire State. Therefore, what happens here is of serious consequence for the people of California and for us as well. We are both going to vote for this motion to commit. We are going to vote for it with the hope that the ensuing weeks are going to enable some parts of it to be worked out more clearly. I serve on Judiciary. I serve on the Immigration subcommittee. The beauty of the original McCain-Kennedy legislation was that once you accepted that approach, you accepted an approach of balance which was simple and which was able to be carried out. My concern is by developing the three tiers of individuals, as the Martinez plan does, that you create a much more complicated scenario in terms of enforcement and therefore run the risk that it cannot be carried out well, particularly for those here for less than 2 years-- who are in the millions. They simply disappear into the fabric, once again, of America, and you have the same problem all over again. I hope during the 2 weeks cool minds will prevail and that we will be able to work on this legislation further. We have been on rather a forced march, a forced march in Judiciary to mark up a bill. There have been more than a half dozen guest worker plans in committee. It has been a difficult and complicated path. I urge that we come together as one body, that we work together as one body. I think the lives to be affected by what we do are perhaps more deeply affected than with virtually any other piece of legislation. Both Senator Boxer and I offer our time and our energy to try to help in this. We will vote yes on cloture. It is our hope a majority of this body will do so also. I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I wish to take this opportunity to recognize the city of Eureka as it prepares to celebrate the 150th anniversary of the city's formation. The city of Eureka has a long history and often parallels California's past. Founded during the time of the gold rush, it became an important port city for northern California's logging and commercial fishing industries because of its proximity to a rich supply of natural resources. Eureka was incorporated on April 18, 1856, and was designated by the State legislature as the county seat for Humboldt County. On a more personal note, Eureka is an important part of my family's history. My mother's family left St. Petersburg during the Russian Revolution and traveled by cart through Siberia and boarded a boat finally landing in Eureka. Today, with a population of over 25,000, Eureka is a city on the move and the cultural center of the California's north coast region. It is the destination for many people wanting to explore miles of unspoiled coastline and visit the world-famous coastal redwoods that are within close proximity of the city. The city's famed historic architecture has been preserved, earning it the designation as a ``Victorian Seaport.'' The historic Eureka Inn is currently undergoing renovations that will make it once again the center of many community events such as the location of the city's Christmas celebrations. I congratulate the city of Eureka on your special day and extend my regards to all of the citizens who will be celebrating this important milestone in the city's history. You should feel proud of your past, and I wish you the very best in the future.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today in recognition of Women's History Month. As one of the 14 women in the United States Senate, I consider this tribute of the highest importance. This year's theme for the month is ``Women: Builders of Communities and Dreams.'' There is no better time to salute the work women around the world have done at home and abroad to empower communities. I am proud to come from the State where Women's History Month was conceived in 1978. Almost 30 years ago, the education task force of the Sonoma County Commission on the Status of Women in California first established Women's History Week in recognition of the achievements of women. This was soon expanded into a month-long celebration, realizing the dream of honoring women in a special way each year. Women's History Month recognizes those who continually strive for greatness. One that comes to mind is Mary Helen Rogers, who passed away earlier this month. She dedicated her life to protecting African American families in San Francisco from urban displacement. While raising 12 children, she became an expert in housing laws. She helped start the Western Addition Community Organization, which forced the city to assist the residents it displaced. She later went on to serve as the San Francisco Housing Authority's community relations manager. Mary Helen Rogers demonstrated through her life's work the importance of community activism and the power of an individual to inspire action in those around her. Just last month we lost another very special woman--Dana Reeve, the widow of actor Christopher Reeve. Her commitment to spinal cord injury research and loving dedication to her husband was unmatched. Since Chris' death, she carried his spirit with her in her drive to push Congress to expand embryonic stem cell research. Dana was the face of the fight on behalf of patients across the country with spinal cord injury, Parkinson's, juvenile diabetes and countless other illnesses. Her passing should serve as call for expansion of embryonic stem cell research. Mrs. Reeve's steadfast loyalty and compassionate care serves as an example to all women. She will be missed. In Los Angeles, ``Sweet'' Alice Harris has been a leader in her community for over 40 years. Her steadfast commitment to the community through parent organizations, emergency relief, and youth programs, has made her an example of true community leadership. As American women, we share a common history: It is a history of fighting for many of the rights and opportunities for which today's young women will prosper. We have come a long way from the days when women had no right to vote, no right to own property, and had extremely limited inheritance or child custody rights. It wasn't until the Women's Property Act of 1839 that women gained land entitlement. The women's suffrage movement began in 1848; however the 19th amendment, granting women the right to vote, did not come to pass until 72 long years later, in 1920. It is a right for which our predecessors worked hard for. We owe it to them to fulfill our civic duty. Today, American women are active in every sphere of our society. We have made our mark in this country's private and public sectors. Over 65 million women are a part of the American workforce. There are over 10 million woman-owned businesses. Women represent our Nation around the world. Many proudly wear our Nation's uniform. Much has changed for over the past century. But make no mistake; much more needs to be done. We must provide improved health care and educational and workforce support for our Nation's women. We need to eliminate violence against women. We need to ensure that women continue to have the right to choose and autonomy over their bodies. Violence against women is intolerable. Every 15 seconds a woman is battered, and each day four women die from domestic violence. Women should not be threatened by fear and violence. This is why the Violence Against Women Act reauthorization is such an important piece of legislation. We also need to improve healthcare in our Nation. Breast cancer continues to be a serious threat to women in this country. One out of seven American women will develop the disease, and nearly 41,000 will die from it this year. We must commit ourselves to finding a cure for this disease which affects women regardless of race, class, or religion. As the sponsor of the breast cancer research stamp, I am proud to say that since its inception in 1998, the stamp has helped raise nearly $50 million. These funds go a long way to help fund research and increase public awareness for this devastating disease. I am also supporting the National Institute of Health and National Cancer Institute legislative efforts to ensure that women undergoing mastectomy and lumpectomy surgeries are protected during their hospital stays. By continuing to prioritize investment in research, it is my hope that we can reach the goal of eradicating breast cancer by 2015. Pregnant women must be provided with access to clinical care and parenting support. The U.S. infant mortality rate is 35th in the world. We must change this. Providing mothers with proper nutrition and healthy lifestyle education is key to combating preventable illnesses and deaths in mothers and children. Additionally, women are balancing careers with families more than ever, creating the need for affordable, quality childcare options. Women are also in the midst of the war in Iraq, and we need to honor these women fighting to protect this country and for the dreams of those women who have been oppressed in Iraq and Afghanistan for too long. Women began enlisting in the military at the start of World War I. Today women are serving in Iraq in record numbers. Women in the armed services make up 15 percent of active duty personnel. There have been nearly 2,000 California female deployments since 9/11. They do jobs that range from intelligence officers to doctors, to ground soldiers. In Louisiana, Hurricane Katrina swept communities away in an instant. In the areas hardest hit by Katrina, 56 percent of families are headed by women, who are now taking the lead role in rebuilding the homes and lives their families and neighbors once knew. They deserve our help and support. It is only through their efforts that communities in New Orleans can thrive once again. I salute the women leading the way in building stronger communities in California and across the Nation. They continue to lead and inspire us all. It is through their tenacity, strength, and passion that we see the transformation of dreams into realities. I have great hope for future generations of women, but we must protect and expand the cherished rights of today's women, so that they may continue to serve their communities and realize their dreams.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Probably about 15 minutes.

Mrs. FEINSTEIN. Mr. President, the Senate Judiciary Committee passed a bill, and I must tell you, I regret the way it was done. It was a kind of forced march, hour after hour of amendments on a bill that is very complicated, that I believe has actually come to the floor somewhat prematurely. I don't believe there is yet a consensus in this body, and I hope the debate that takes place can be a respectful debate so Members will feel free to open their minds and then to change them if the facts warrant that. But this bill is a beginning. It seeks to address the overall problem in a much more comprehensive and practical way. First with regard to border enforcement. The bill doubles the number of Border Patrol agents. It adds 12,000 over 5 years. Senator Kyl and I had testimony in the Terrorism and Technology Subcommittee from the head of Border Patrol that today there are 11,300 Border Patrol agents. This more than doubles that number over the next 5 years. It also would add an additional 2,500 new ports of entry inspectors in this same period so that the ports of entry are strengthened and legal immigration is able to be handled in a more prompt manner. It criminalizes the act of constructing or financing a tunnel or subterranean passage across an international border into the United States. Most people don't know this, but this has become a real problem. There are 40 such tunnels that have been built since 9/11, and the great bulk of them are on the southern border. Large-scale smuggling of drugs, weapons, and immigrants takes place today through these tunnels. I recently visited a tunnel running from San Diego to Tijuana, and I was struck by the inordinate sophistication of the tunnel. It was a half mile long. It went 60 to 80 feet deep, 8 feet tall. It had a concrete floor. It was wired for electricity. It had drainage. At one end, 300 pounds of marijuana were found, and at the other end, 300 pounds of marijuana. What was interesting is that the California entry into the tunnel was a very modern warehouse, a huge warehouse compartmented but empty and kept empty for a year. You went into one office, and there was a hatch in the floor. It looked much like the hatch which Saddam had secreted himself in. But when you lifted that hatch and you looked underground, you saw a very sophisticated tunnel. It went under other buildings all the way across the double fence into Mexico and up in Mexico in a building as well. Today, interestingly enough, at this time, there is no law that makes building or financing such a tunnel a crime. A provision in this bill includes language from the Feinstein-Kyl Border Tunnel Prevention Act which would make the building or financing of a cross-border tunnel a crime punishable by up to 20 years. This bill also authorizes additional unmanned aerial vehicles, modern cameras, sensors, and other new technologies to allow the Department of Homeland Security to work with the Department of Defense so the latter can carry out surveillance activities at the border to prevent illegal immigration. So this bill is very strong on border enforcement. But it doesn't just leave it there, as the majority leader's bill does. It says, that is only half the problem; you have to deal with the other half of the problem, and there is the rub. That is the difficult part, and that is the controversial part as well. The bill we have from the Judiciary Committee seeks to remedy the very real needs of our economy which, as much as we might want to, cannot be ignored. Our global economy has changed the face of the American workforce. I am not going to comment on whether this is good or bad. In some cases, it is one or the other. In some cases, it is mixed. But the fact of the matter is the needs are different and the workforce is somewhat different. Let me give you a large industry: Agriculture. There are about 1,600,000 workers in this country who work in agriculture. In my State, there are 566,000. I would hazard an informed guess that half of the 566,000 are here in undocumented status. I have had farmer after farmer, grower after grower tell me they cannot farm, they cannot grow without this workforce. I didn't believe it, so I got in touch with 58--we have 58 counties--58 welfare departments and asked them to post notices saying: Please, there are jobs in agriculture. Here is where to come. Here is to what expect. Guess what. Not a single person responded anywhere in the 58 counties of California. That was pretty convincing evidence to me that Americans don't choose to do this work. It is the undocumented workforce who has been the mainstay of American agriculture, whether through the H-2A program coming cyclically or whether it is through a large contingent of undocumented workers who remain in this country year after year and do this work. Under this program--and this was an amendment that I made after negotiations with Senator Craig who has been one of the Senate leaders on the agriculture jobs program--and I was very pleased to negotiate with him and very delighted to see that he really cared enough to spend the day Monday in the Judiciary Committee. Between us, and with the committee's help, we have worked out a program whereby an undocumented worker could apply for a blue card if that worker could demonstrate that he or she has worked in American agriculture for at least 150 workdays within the previous 2 years before December 31, 2005. After receiving blue cards, individuals who have then worked an additional period in American agriculture for 3 years, 150 workdays per year, or 100 workdays per year for 5 years, would be eligible for a green card. Their spouses could work, and their children could remain in the country with them. What would be the result of this? The result is that American agriculture would have a stable base of employment which is legal, which has the opportunity to bring people out of the shadows into the bright light of day, assume additional responsibilities, grow in the process, and raise their families. I think that is healthy for America, not unhealthy. Also, we reform the current H-2A program, which is the agricultural guest worker program, which employs, I would say around 30,000 people and is used largely in the tobacco-producing States. The way this is reformed is it makes it easier for an employer to apply for workers through an attestation system, the paperwork is simpler, the housing requirements are changed to make it easier. In general, the bill updates the H-2A agricultural program. Returning to the larger bill, I suppose the most contentious part is what should happen to the 12 million people who are living here in the shadows, undocumented. Many would say they are here illegally; they ought to go back. Well, they are not going to go back. They are going to remain living furtively, and they are going to remain in the shadows. And most of them work. The question before this body is: Does that make sound public policy sense over a substantial period of time? These immigrants live furtively. They are subject to work abuse, exploitation, threats, and blackmail. This bill would provide them with an opportunity to come into the light of day. But it wouldn't be easy for them. It is not an amnesty. An amnesty is instant forgiveness with no conditions. There are conditions on this. They must pay a fine of $2,000, they must learn English, they must have paid all back taxes, and they must be evaluated as neither a criminal or a national security threat to this Nation. Also, they would not go in front of anybody in the line. There are presently 3.3 million people waiting in other countries legally for green cards, and those people should and will be processed first. It is estimated it will take, believe it or not, up to 6 years to process 3.3 million. These workers, these undocumented 12 million would go at the end of that line, and then one by one, they would come through that line. If they have worked steadily for the 6-year period, if they can show they have paid all back taxes, if they have avoided any criminal convictions, if they have learned English in that time, they would be granted a green card. Therefore, they come out of a furtive lifestyle, hidden and in secret, living in fear that tomorrow they could or might be deported. Over the years in the Senate, one of the things that we can do is put forward a private bill. If we see a family or an individual who we believe is an exceptional circumstance, we can try and get a private bill passed for them, and when we introduce the bill, their deportation is stayed. It is very hard to get a private bill through. Many Members don't do private bills. I met some of the families. I want to give you three cases that I think are eloquent testimony to what is happening amongst the 12 million. Let me share with you a family. Their last name is Arreola. They live in Porterville, CA. I have filed a private immigration relief bill for them over 2 sessions. I didn't get the bill passed, but their deportation has been stayed. Mr. and Mrs. Arreola came to the United States from Mexico illegally in the 1980s to work in agriculture. They have five children, two brought to the United States as toddlers, and three born in the United States. They range from 8 years old today to 19, and they know no other home but this country. Their eldest daughter, Nayely, is a bright, engaging student. I have met her and talked with her. She is the embodiment of the American dream and what can happen when we give children a chance to excel in a loving, nurturing environment. She was the first in her family to graduate from high school and the first to go to college. And on a full scholarship. She goes to Fresno Pacific University. Mrs. Arreola works as a produce packer and Mr. Arreola now has an appliance repair business. They have no criminal background. They own their home. They pay their taxes. For Nayely, this bill offers a glimmer of hope that her family, once and for all, can come out of the shadows. They don't have to have that daily fear of deportation. They have been here for 20 years. They are and will be legal, productive citizens. One other example. Shigeru Yamada is a 21-year-old Japanese national living in Chula Vista, CA. He is facing removal from this country due to a tragic circumstance relating to the death of his mother. He entered the United States with his mother and two sisters in 1992 at the age of 10. He fled from an alcoholic father who had been physically abusive to his mother, the children, and even his own parents. Tragically, Shigeru's mother was killed in a car crash in 1995, and he was orphaned at the age of 13. The death of his mother also served to impede the process for him to legalize his status. He could not legalize his status. At the time of her death, his family was living legally in the United States. His mother had acquired a student visa for herself and her children. Her death revoked his legal status in the United States. In addition, his mother was also engaged to an American citizen at the time of her death. Had she survived, her son would have become an American citizen through this marriage. Instead, today, he is an illegal immigrant leading a model American life. He graduated with honors from Eastlake High School in 2000. He has earned a number of awards, including being named an ``Outstanding English Student'' his freshman year. He is an All-American Scholar, and he is earning the United States National Minority Leadership Award. He was vice president of the associated student body his senior year of high school. He is popular and he is trustworthy. He is an athlete. He was named the ``Most Inspirational Player of the Year'' in junior varsity baseball and football as well as varsity football. After graduating, he volunteered for 4 years to help coach the school's girl's softball team. Sending him back to Japan today would be an enormous hardship. He doesn't speak the language. He is unaware of the Nation's cultural trends. He is American, raised here, educated here. He is one who is deserving, who would be helped by this legislation. I see the minority leader, and I know he has a very busy agenda. Regretfully, I have a little bit more, so I will finish up. Let me give a third example of the type and character of individuals that this bill would legalize. The Plascencias are Mexican nationals living in San Bruno, CA. They are undocumented. They face removal from the country due to the fact that they have received ineffective assistance of counsel. They have four children, all born in this country. The mother and father are subject to deportation; the children are not. They arrived in this country in 1988, and they have worked hard. Mrs. Plascencia studied English. She is now taking nursing classes at the College of San Mateo. She worked for 4 years in the oncology department of Kaiser Permanente Hospital, where she was a medical assistance. Mr. Plascencia works at Vince's Shellfish Market. During the last 13 years he has worked his way up from part-time employee to his current supervisory position. He is now the foreman in charge of the packing department. The Plascencia family has struggled to become legal residents for many years. Based on the advice of counsel, whom they were later forced to fire for gross incompetence, they applied for asylum. The application was denied, and they were placed in removal proceedings. Their children--Christina, 13; Erika, 9; Alfredo, 7; and Daisy, 2-- are entitled to remain. Their eldest daughter, Christina, is enrolled in Parkside Intermediate School in San Bruno, where she is an honor student. Erika and Alfredo are enrolled in Belle Air Elementary School. They are doing well. They have received praise from their teachers. This family has worked hard to achieve the financial security their children now enjoy. This includes a home they purchased 3 years ago in San Bruno, CA. They own their car. They have medical insurance. And they have paid their taxes. It is very clear to me and I think to a majority of Americans that this family has embraced the American dream and their continued presence in our country would do much to enhance the values we hold dear. So I believe that by presenting a pathway for the 12 million to become legal, this bill offers the only realistic option. Think about it. How do you find 12 million people, and what do you do when you find them, if you do? If brought across the border, they return the next day. This is their home. This is their work. There are no adequate facilities to detain them. And most, today, have become a vital and necessary part of the American workforce--in agriculture, in restaurants, in hotels, in landscaping, and throughout our economy. We need to build a border infrastructure that is modern and effective. We can do that. Operation Gatekeeper has shown irrefutably we can, in fact, enforce our borders if we have the will to do so and we are willing to spend the money to do so. But we also need to find an orderly way to allow those people who are already here, who are embedded in our communities and in our workforce, to be able to continue to remain. This bill does that. I know this is tough for everybody because I know emotions run high and it is really hard to change your mind on this subject because there are so many conflicting pressures. But we have an opportunity to chart a new destiny for a lot of people. We have an opportunity to do something which has a chance to work, which is real, which meets the needs of real people out there, and which can stop the illegal infusion through our borders in the future if we act wisely, well, and effectively. I yield the floor.

Mrs. FEINSTEIN. Mr. President, I thank the Senator very much. That is very generous of him.

Mrs. FEINSTEIN. Mr. President, shortly the Senate is going to be confronted with a vote on two bills, one of them being the leader's bill which deals with enforcement on the border, and the other the Judiciary Committee bill which essentially incorporates provisions of the McCain-Kennedy bill into a broad and comprehensive bill which will, I believe, be before the Senate for discussion and amendment. The bill approved by the Judiciary Committee is a bipartisan bill. It had a 12-to-6 vote in the committee. It is the first step forward in a very difficult and consequential process to address what has become one of the most contentious issues in American life. If this bill is approved by the full Senate, it will then have to go to a conference committee and be reconciled against another bill, namely the House bill, which is very onerous in many of its provisions. The reconciliation of these two bills is going to be extraordinarily difficult to achieve, and it remains uncertain whether any bill can be enacted into law in this current congressional session. Any legislation approved by Congress, I think, has to take into consideration the reality of today's immigration world in America. It is very different from the 1990s, it is very different from the 1980s, and it is very different from the 1970s. There are very strongly held views on both sides. Most, though, of what is attempted by Federal agencies responsible for the administration of immigration services today and responsible for the protection of our borders has more often than not failed, and we have to deal with that failure. Employer sanctions, which are the seed of current immigration laws, have failed. Border control is spotty at best. Naturalization takes years. Detention facilities are inadequate. And despite our attempts to gain operational control of our border and to secure the interior of the United States so that everyone plays by the rules, the Government has essentially failed. We now have 10 million to 12 million undocumented people living in the United States. They have come here illegally. They live furtively. Many of them have been here for 20 to 30 years. I know many. They own their homes. They pay taxes. Their children were born in this country and educated in this country. This is the only home they know. They want to live by the law, but they have no way currently to live by the law. Employer sanctions, I mentioned, do not and, I believe, in our global economy, will not work. That is evidenced by the fact that in 2004, only 46 employers in the United States were criminally convicted for employer sanctions out of 3,258 cases initiated. I have watched in California. On the few occasions where immigration officials have gone to agricultural worksites and arrested employers, the public reaction has been entirely negative. Both you and I know, Mr. President, that a law is only as good as the ability to enforce it. There is virtually today no ability to enforce employer sanctions in the United States of America. Therefore, a more punitive immigration philosophy that is based and dependent upon employer sanctions as working doesn't work and clearly creates a situation whereby there is disorganized chaos in the immigration world. Another reason for this is our borders are a sieve, porous through and through. The Senator from Arizona correctly mentioned there are 14 miles on the California border with Mexico where there is a two-layer fence. It is an immigration border control process known as Operation Gatekeeper. It was very controversial when put into play, but it works. And he is correct, immigrants coming in illegally in that corridor have been deterred. But what has happened is, it has simply pushed them east into unfenced portions of the border, and those portions of the border where the desert and the heat wreak considerable destruction upon anybody crossing. A concern with porous borders has also brought attention to a classification of aliens known as ``other than Mexicans.'' In 2005, Border Patrol agents apprehended 165,175 ``other than Mexicans'' at the border, 155,000 of them on the southern border. The concern here is that many of these people are increasingly from terrorist-supporting countries, and that presents a real potential national security threat to our country. We continue to have a catch-and-release policy with respect to this limited category of people, but we don't have sufficient detention facilities. Consequently, they are released on their own recognizance pending a hearing. They are expected to show up at the hearing. More often than not, they do not show up. They simply disappear into the fabric of America, gone for all time. I can go on and on, but I think this gives an accurate view of what has become an extraordinarily dysfunctional immigration system, and it has also made me realize that while we need strong border enforcement, it alone is not the only solution to the problem of illegal immigration. The House bill, which focuses only on enforcement and criminalization of undocumented aliens, isn't the solution. We need to be much more realistic and comprehensive. I see the Democratic leader on the floor, and I would be happy to cease and desist for the moment if he wishes to speak.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to include in the Record an additional comment regarding the Combat Meth Act, which was passed into law earlier this year as part of the USA-PATRIOT Reauthorization Act. While much has been said about the portions of this bill that address the national meth problem, I wish to highlight the commonsense approach this legislation provides for preventing the diversion of controlled substances. The Controlled Substances Act requires its registrants to ensure that controlled substances do not fall into the wrong hands in the places where they are manufactured, distributed, or sold. To this end, it has always been the Drug Enforcement Administration's goal to encourage such registrants to investigate fully the backgrounds of potential employees who might have access to such substances, specifically for drug-related criminal convictions. However, certain State and local privacy laws have had the potential to hamper this objective. These laws frustrate the purpose of the Controlled Substances Act and the objectives of the Drug Enforcement Administration by, among other things, purporting to prohibit registrants from asking questions relating to an applicant's experience with controlled substances, including whether they have been convicted of drug-related crimes. The real-world implication has been, in a word, nonsensical. In my own State of California, for example, there is a State law that provides that employers are not allowed to question a potential employee about certain drug-related criminal convictions that are older than 2 years. This prohibition also purports to cover employers who are registered under the Controlled Substances Act. If a registrant complied with this State law, it could mean that a responsible pharmacy could hire someone to work at the cash register who would be in a position to divert pharmaceutical products, and the employer would never have any clue about the applicant's past. This runs counter to the purpose of the Controlled Substances Act and undermines the DEA's efforts to prevent the unlawful diversion of controlled substances. The law we passed clarifies once and for all that registrants can and should fully vet applicants, including asking them about any and all drug-related criminal convictions--not as an infringement on someone's privacy but as a safeguard to ensure that people with access to controlled substances do not pose risks to the public welfare. This legislation makes clear that those on the frontlines of preventing controlled substance diversion have a crucial tool they need to do their job.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I oppose this budget. This administration has chosen to continue down an unsustainable economic path. They have put forth an irresponsible budget that does not take constructive steps toward righting our Nation's fiscal course. I strongly urge my Senate colleagues not to follow suit. Our Nation is going in the wrong direction. The signals grow more evident each day. Deficits are at record levels. The debt is reaching astronomic heights. And we have fewer resources available for important domestic programs. Under President Clinton, we had 4 years of budget surplus. And, when he left office, we had a projected 10-year surplus of $5.6 trillion. But the economic policies of the past 5 years have produced a catastrophic turnaround. Record budget surpluses have given way to record deficits--projected at $1.6 trillion over the next decade. And the debt is projected to exceed $11 trillion. This budget resolution assumes that the deficit will decline from $359 billion in FY 2007 to $177 billion in FY 2011. Unfortunately, these numbers don't tell the whole story. This is a 5-year budget. This clouds the full impact of the administration's policies. The debt and deficit are set to explode in the out years--the end of the 10-year window. And, this does not even include the costs of ongoing military operations in Iraq and Afghanistan beyond 2007 and reforming the alternative minimum tax beyond 2006. When all costs are included, this budget proposal will contribute $1.14 trillion to the Federal budget deficit over the next 5 years. In this year alone, our national debt is slated to increase by $654 billion. This is a far cry from the President's goals for deficit reduction, and deeply troubling to those who value fiscal responsibility. As a result, we are now again confronted with raising the nation's debt limit. The increase--from $8.2 trillion to roughly $9 trillion-- will be the fourth major hike in the last 5 years. In 2000, our national debt was at $5.8 trillion. Today, this figure stands at $8.27 trillion. And, at this rate, with all costs included, debt will more than double to $12 trillion in 2011. Additionally, more and more of our debt is being held in foreign hands. We now owe Japan $685 billion and China over $250 billion. It took 42 Presidents 224 years to run up $1 trillion of foreign held debt. In only 5 years, President Bush has more than doubled that amount. Contrast this with the last 3 years of the Clinton administration, where we paid off more than $200 billion in debt to foreign countries. These staggering figures represent a great burden for future generations who will have to pay the bill. They also keep interest rates high, limit economic growth, and slow job creation. This President has the worst record of private sector job growth since Herbert Hoover. And the jobs that are created are largely minimum wage and temporary work. Americans are working harder, for less money. Average household income for working families decreased by $1,669 between 2000 and 2005, when adjusted for inflation. By almost every indicator, American families are facing tough times: Housing affordability, a big problem in California, is at a 14-year low; Health care costs are up 50 percent since 2000; Gas prices are up 60 percent; College costs at public universities are up 57 percent; 45 million people are going without health care, including 6.6 million in California; and 37 million Americans are living in poverty, a number that has increased each year under this administration, U.S. Census Bureau. You'd think that this budget would attempt to provide relief for most Americans. Instead middle-class families are asked to do more with less. At the same time, the President is proposing to make tax breaks permanent for the wealthiest Americans--at a cost of $1.3 trillion over the next decade. And, when you combine the cost of the tax cuts with costs of war in Iraq--currently totaling $370 billion--the inevitable result is that critical domestic programs are squeezed. The budget before the Senate today reflects these constraints by: Cutting food stamps, by $272 million; Cutting food assistance for seniors and children, by $111 million; Reducing the effectiveness of our police officers in cutting COPS by more than $407 million, 15,000 officers nationwide; Cutting $244 million from firefighter grants; Failing to reimburse state and local governments for the Federal responsibilities in paying for the incarceration of illegal immigrants; Cutting funding for 18 of the 19 National Institutes of Health, including those conducting research on cancer and heart disease; And, No Child Left Behind, the President's signature education program, would be underfunded this year by more than $15 billion and $55.78 billion since it was enacted. These are vital priorities that must be funded. Because of record federal deficits and debt, money that could have been available for education, healthcare, defense, infrastructure, job development, and homeland security, must now go to interest payments. In 2006, interest costs alone on the national debt will total nearly $400 billion. And, this figure will grow to nearly $600 billion over the next 5 years. Total non-defense discretionary spending--$416 billion in this budget--is only modestly larger than this interest payment. This could have been prevented. The Congressional Budget Office estimated that last year, economic problems caused only about 8 percent of the deficit. The rest resulted from policy choices by Congress and this administration--largely tax cuts for the wealthiest among us. The time has come to chart a different course, and make the tough choices that the President and this resolution avoid. We must adopt a balanced approach to both taxes and spending and return to a program of fiscal sanity. When I first came to the Senate, over a decade ago, a small, bipartisan group decided to get our fiscal house in order. Democrats worked to bring spending under control. And Republicans pledged not to push for additional tax cuts. I have no problem holding the line on spending, but believe that it must be done in the context of a more responsible approach to tax policy. We must consider rolling back the tax cut for the wealthiest Americans, to bring the income tax rate from its current 35 percent back to 38.6 percent. This will affect those earning more than $312,000 per year--less than one percent of taxpayers--but will save nearly $130 billion over the next decade. Finally, we need to work together to begin addressing some of the deeper structural problems with Social Security and Medicare--before these programs fall into crisis. These are not easy answers. But, we must change the direction in which this nation is moving. We cannot afford to continue down this path of fiscal irresponsibility. Americans work hard to balance their checkbooks and live within their budgets. They deserve a Government willing to do the same.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to express my support for the nomination of Magistrate Judge Stephen Larson to a seat on the Federal District Court for the Central District of California in Riverside, CA. Judge Larson comes to this nomination with a strong background of public service. Since October 2000, Judge Larson has served as a magistrate judge for the Central District of California in Riverside. In the 10 years before becoming a magistrate judge, Larson served the public as an assistant U.S. attorney in the Central District of California, where he was chief of the U.S. Attorney Office's Organized Crime Strike Force and coordinator of its Russian Organized Crime Unit. Judge Larson attended college here in Washington, at the Georgetown University School of Foreign Service, from which he received a bachelor's of science in 1986. Judge Larson returned to California for law school, graduating from the University of Southern California Law School in 1989. The American Bar Association has unanimously declared Judge Larson to be ``well qualified,'' the ABA's highest rating. Judge Larson has the strong support of California's Inland Empire. I have received endorsements of Judge Larson's nomination from a diverse cross-section of the Inland Empire's legal community: from judges and law professors, from government attorneys and private practitioners, and from Democrats and Republicans. In these letters, Judge Larson is praised for his ``legal knowledge,'' ``fairness,'' ``integrity,'' ``hard work,'' ``temperament,'' ``intelligence,'' ``patience,'' and ``sense of social justice.'' Judge Larson was nominated through the bipartisan judicial selection process that we developed in California, a process which I believe is a model for the Nation. Under this system, a committee of lawyers including Democrats and Republicans recommends qualified, non- ideological applicants to the President. Judge Larson's nomination through this process, along with his impressive record of public service, gives me confidence that he comes to the bench without an agenda and that he will serve the people of California and the Nation with wisdom, integrity, and humility.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to commemorate March 8, 2006, International Women's Day. It is an undeniable fact that as the world becomes more interconnected, societies which value women's rights and include them in the political, economic, and civic process have a greater chance of prospering and contributing to international peace and stability. Nowhere is this more evident than in Iraq. We all know that in order for Iraq to succeed as a nation, women must play an integral role in the government and women's rights must be treated as fundamental human rights. While much work remains to be done in Iraq, I am pleased to see that women are playing a prominent and active role in the government. As such, it is a great honor to not only commemorate, March 8, 2006, International Women's Day but also welcome a distinguished guest, Dr. Jinan Jasim Ali Al Ubaidi, a newly elected member to Iraq's Council of Representatives, who will be my guest and accompany me throughout the day. A member of the Supreme Council for Islamic Revolution party, Dr. Ubaidi is a graduate of Baghdad University and practiced medicine at Najaf Hospital prior to the fall of the Hussein regime. Dr. Ubaidi and her female colleagues in the Council of Representatives are now confronting issues which will determine the future of women's rights in Iraq. This is a critical juncture and one key question they face is. What will be the extent of sharia in Iraq and how will it affect women's rights in that country? Article 14 of Iraq's Constitution states that ``Iraqis are equal before the law without discrimination based on gender.'' Article 2 of the Constitution maintains that ``no law that contradicts the established provisions of Islam may be established.'' Some people believe that it will be difficult to reconcile the two articles and still provide women with fundamental rights in Iraq. I, for one, believe that Islam and women's rights can go hand in hand and there is an opportunity to advance these rights in a new Iraq. While the women in the Iraqi National Assembly will do their part, the United States and the international community need to play a vital role in advancing the role of women in Iraq. Specifically, we should continue to promote democracy related training programs, female education programs, and assist with judicial reform and Islamic jurisprudence training so that women will become part of the social, political, and economic fabric of Iraq. Gains for women's rights have been made in other Muslim countries such as Indonesia and Morocco, and we should look to them as examples. In Morocco, successful efforts to raise the marriage age for women from 15 to 18, abolish polygamy, and equalize the right to divorce have been made. In Indonesia, Musdah Mulia, the chief researcher at the Ministry of Religious Affairs, has sparked considerable debate within that country by calling for changes in the areas of wearing a hijab and marriage based on Islamic jurisprudence. Although such rules have not been enacted, further debate on the issue is a positive step. A nongovernmental organization in Indonesia, known as the Indonesian Society for Pesantren and Community Development, has also been using Islamic jurisprudence to promote women's reproductive rights and family planning education within religious schools there. These are all progressive steps toward promoting women's rights in the Islamic world. In the near future, an Iraqi government will be formed that will make important decisions on the role of women and sharia. The United States must do everything within its power to ensure that women's rights are fully incorporated into every aspect of Iraqi life. We must continue to support education and leadership initiatives, economic empowerment programs, and specifically judicial reform, all of which will seek to increase the role of women government and assist Iraq's transition to a stable and democratic state. Let us also not forget about the women in Afghanistan. Under the Taliban regime, women were brutally oppressed and women's rights were virtually nonexistent. Women in public were forced to cloak themselves head to toe while being accompanied by a male relative. If they failed to do so, they risked being beaten mercilessly. Furthermore, most Afghan women were restricted by the Taliban from working, receiving an education, visiting doctors, or accepting humanitarian aid. Now, women in Afghanistan have the opportunity to build a better life for themselves and their families. It is no longer illegal for women to work, and millions of Afghan girls now attend school. The United States has provided grants to establish the Ministry of Women's Affairs, assisted Afghan nongovernmental organizations, created opportunities for income generation in the private sector, and supported opportunities for women in agriculture and rural environments. The Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2006, included a $50 million earmark for programs directly addressing the needs of Afghan women and girls. However, many challenges remain for women in Afghanistan. Although women may legally work, many still face serious challenges to finding job opportunities. For them, it is extremely difficult to find jobs close to home, with tolerable hours, and reasonable pay. Additionally, although education is currently on the rise, most Afghan women have had little or no formal job training, which prevents them from gaining meaningful employment. Finally, women still face conservative attitudes about their political participation in many rural areas of the country. The United States must not forget about these women. We must continue to advance women's rights in Afghanistan because if we do not, our tireless efforts there will have been in vain. Therefore, I urge my colleagues to stay the course and support additional assistance for education, health care, and democracy training for women and girls in Afghanistan during the years ahead. There are a great many challenges that face women today, and there are a great many challenges that faced women in the past. Issues such as the role of women in Iraq and Afghanistan are no less daunting than women's suffrage seemed in 1920. As such, there is cause for optimism on International Women's Day. Yet we must remain vigilant in our fight for justice and gender equality around the world. The United States must remain a leader by proactively addressing these women's issues. I am confident that if we tirelessly continue to fight for gender equality, we can find workable solutions to address the problems that women face around the world.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to pay tribute to a remarkable woman who has shown Americans what courage is all about. That woman is Dana Reeve. I knew Dana as a smiling, beautiful woman standing behind Christopher Reeve's wheelchair, accompanying him to DC to testify in support of advancing stem cell research. Since Chris's death, Dana was the face of this fight on behalf of patients across the country with spinal cord injury, Parkinson's, juvenile diabetes and countless other illnesses. I thought that after everything Dana had gone through with Chris that she would have time to smell the flowers and be in the sun. But apparently that was not meant to be. My heart goes out to Dana and Chris's son William, Dana's stepchildren Matthew and Alexandra, and the entire Reeve and Morosini families during what is and has been a very difficult time. Dana was the picture of steadfast loyalty and compassionate care. She and Chris taught us all that life is short and that we should all have the courage and hope to ``go forward.'' Dana carried that spirit with her in her drive to push Congress to expand embryonic stem cell research and to expand access to new treatments and therapies for thousands of Americans with spinal cord injuries. Dana was an activist, actress, singer, motivational speaker and published author. Dana was a founding board member of the Christopher Reeve Foundation and succeeded her late husband as chairperson in 2004. She created and led the Foundation's Quality of Life initiatives. She received numerous awards for her work, most notably the Shining Example Award from Proctor & Gamble in 1998, an American Image Award from the AAFA in 2003, and the American Cancer Society named her Mother of the Year in 2005. Dana, the person, was a tireless advocate for people with spinal cord injuries. For me personally, she and Chris will forever be the shining lights in the great national debate for advancing medical research. It is with sadness that I stand before this body, more than 9 months after the historic vote in the House to expand Federally funded embryonic stem cell research, and still there has been no vote in the Senate. With each day that passes the research that could one day lead to cures and treatments for millions of Americans with deadly and debilitating diseases is being held up. It is incomprehensible to me that we have a bill, which has already passed the House, that may help millions of Americans but instead is just sitting, languishing in the Senate despite some overtures or promises that it would be taken up by this body. It is time for the Senate to do exactly what the House did. It is time for the Senate to take up and pass the Stem Cell Research Enhancement Act, the Castle-DeGette bill, with no amendments and no alternatives. I believe we have the votes to pass this bill today and send it to the President. I want to take a moment to acknowledge Dana's last struggle, her battle against cancer. This terrible disease is a very personal one for me. I have lost many loved ones to it. The elimination of death and suffering due to cancer has been one of my highest priorities since coming to the Senate. Dana died of lung cancer and, as many of you have read in the papers, Dana was a non-smoker. I believe she had stage one metastatic lung cancer. In fact, over 60 percent of new lung cancers are diagnosed in people who never smoked or who managed to quit smoking even decades ago. While cigarette smoking is by far the most important risk factor for lung cancer, many other factors play a role. Lung cancer remains the deadliest form of cancer. In 2006, it will account for more than 162,000 cancer deaths, or about 29 percent of all cancer deaths. Since 1987, more women have died each year of lung cancer than from breast cancer. Screening for lung cancer is years behind screening for other cancers, which means that when it is diagnosed, the disease is often already in its late stages, which is what I suspect happened to Dana Reeve. The 5-year survival rate for all stages of lung cancer is only 15 percent. Compare this to the overall 5-year survival rate of 65 percent for all cancers diagnosed between 1995 and 2001. Clearly we can and must do better. Increased NIH research for lung cancer is essential and we must press for better screening tools for lung cancer. I plan to address both of these issues in comprehensive cancer legislation I plan to introduce shortly. In closing, it is my sincere hope that the love Dana and Chris shared for each other will reunite them wherever their journeys take them from here. Dana left us far too soon--in her mid-40s--but she left us with her fighting spirit and the will to push forward so that one day we may find treatments and cures for those living with spinal cord injuries and other disabling conditions. Mr. President, I yield the floor and suggest the absence of a quorum.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, our borders are our Nation's first line of defense. They are the key to our homeland, and ensuring their integrity is vital to our national security. But there are some who seek to create a means of entering our country illegally. For years, they've tried to go around the border checkpoints. Now they are trying to go under them through sophisticated border tunnels. In fact, there have been 40 border tunnels financed and constructed since 9/11--to move humans, drugs, and weapons under the border. Twenty-one of these were on the California-Mexico border--eight since January of this year. This is a serious issue not just for San Diego and California, but for the entire country. Surprisingly, there is no law on the books now that makes it a crime to construct, finance, build, or use a tunnel into the United States. Last week, I toured a recently discovered tunnel in San Diego with San Diego Mayor Jerry Sanders, Police Chief Bill Lansdowne, Sheriff Bill Kolender and various Federal Government officials from the Department of Homeland Security. This tunnel is the largest, most sophisticated underground passageway ever discovered; approximately half a mile long (8 football fields); at its deepest point, more than nine stories below ground; equipped with a drainage system, cement flooring for traction, lighting, and a pulley system; disguised as a produce distribution company known as ``V & F Distributors, LLC''; and accessible only through a small office inside this warehouse, covered by four square tiles. The Bureau of Immigration and Customs Enforcement began investigating the case two years ago, and raided the tunnel last month from the Mexican side not knowing if or where an opening on the U.S. would be found. They discovered over 2,000 pounds of marijuana on the Mexican side of the border and approximately 300 on the U.S. side. The legislation which I am introducing today--joined by Senator Kyl as the Republican lead, as well as Senators Frist, Cantwell, Boxer, Hutchison, McCain, Bingaman and Domenici--throws the book at those who build these tunnels and subterranean passageways into the United States. It would: criminalize the construction or financing of an unauthorized tunnel or subterranean passage across an international border into the United States with a term of imprisonment up to 20 years; punish those who recklessly permit others to construct or use an unauthorized tunnel on their land with a term of imprisonment of up to 10 years; punish those who use a tunnel to smuggle aliens, weapons, drugs, terrorists, or illegal goods by doubling the sentence for the underlying offense; in addition to imprisonment, ensure that assets involved in the offense, or any property traceable to the offense, may be subject to forfeiture; and instruct the U.S. Sentencing Commission to promulgate or amend sentencing guidelines to provide for criminal penalties for persons convicted under this bill, and to take into account the gravity of this crime when considering the base offense levels. The legislation is critical. We must secure every aspect of our borders. Since 9/11: forty border tunnels have been discovered in the United States; all but one have been on the southern border; twenty-one of the tunnels were along the California-Mexico border; eight of the tunnels were discovered in San Diego since the beginning of the year; these tunnels range in complexity from simple ``gopher holes'' a few feet long at the border to massive drug-cartel built mega-tunnels, costing hundreds of thousands to millions of dollars to construct. The need for this legislation is urgent. We must secure every aspect of our borders, including those we can't always see. And it is in our national security interest that we find these tunnels and prosecute those who construct, finance or recklessly permit the use of these tunnels on their land or property to the fullest extent of the law. I ask unanimous consent that the text of the legislation be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, our borders are our Nation's first line of defense. They are the key to our homeland, and ensuring their integrity is vital to our national security. But there are some who seek to create a means of entering our country illegally. For years, they've tried to go around the border checkpoints. Now they are trying to go under them through sophisticated border tunnels. In fact, there have been 40 border tunnels financed and constructed since 9/11--to move humans, drugs, and weapons under the border. Twenty-one of these were on the California-Mexico border--eight since January of this year. This is a serious issue not just for San Diego and California, but for the entire country. Surprisingly, there is no law on the books now that makes it a crime to construct, finance, build, or use a tunnel into the United States. Last week, I toured a recently discovered tunnel in San Diego with San Diego Mayor Jerry Sanders, Police Chief Bill Lansdowne, Sheriff Bill Kolender and various Federal Government officials from the Department of Homeland Security. This tunnel is the largest, most sophisticated underground passageway ever discovered; approximately half a mile long (8 football fields); at its deepest point, more than nine stories below ground; equipped with a drainage system, cement flooring for traction, lighting, and a pulley system; disguised as a produce distribution company known as ``V & F Distributors, LLC''; and accessible only through a small office inside this warehouse, covered by four square tiles. The Bureau of Immigration and Customs Enforcement began investigating the case two years ago, and raided the tunnel last month from the Mexican side not knowing if or where an opening on the U.S. would be found. They discovered over 2,000 pounds of marijuana on the Mexican side of the border and approximately 300 on the U.S. side. The legislation which I am introducing today--joined by Senator Kyl as the Republican lead, as well as Senators Frist, Cantwell, Boxer, Hutchison, McCain, Bingaman and Domenici--throws the book at those who build these tunnels and subterranean passageways into the United States. It would: criminalize the construction or financing of an unauthorized tunnel or subterranean passage across an international border into the United States with a term of imprisonment up to 20 years; punish those who recklessly permit others to construct or use an unauthorized tunnel on their land with a term of imprisonment of up to 10 years; punish those who use a tunnel to smuggle aliens, weapons, drugs, terrorists, or illegal goods by doubling the sentence for the underlying offense; in addition to imprisonment, ensure that assets involved in the offense, or any property traceable to the offense, may be subject to forfeiture; and instruct the U.S. Sentencing Commission to promulgate or amend sentencing guidelines to provide for criminal penalties for persons convicted under this bill, and to take into account the gravity of this crime when considering the base offense levels. The legislation is critical. We must secure every aspect of our borders. Since 9/11: forty border tunnels have been discovered in the United States; all but one have been on the southern border; twenty-one of the tunnels were along the California-Mexico border; eight of the tunnels were discovered in San Diego since the beginning of the year; these tunnels range in complexity from simple ``gopher holes'' a few feet long at the border to massive drug-cartel built mega-tunnels, costing hundreds of thousands to millions of dollars to construct. The need for this legislation is urgent. We must secure every aspect of our borders, including those we can't always see. And it is in our national security interest that we find these tunnels and prosecute those who construct, finance or recklessly permit the use of these tunnels on their land or property to the fullest extent of the law. I ask unanimous consent that the text of the legislation be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today in support of the California Ocean and Coastal Protection Act, introduced by Senator Boxer and myself, to permanently protect California's coast from oil and gas drilling. We simply cannot gamble away California's majestic coastline. An oil spill would scar our coastline, costing billions and destroying ecosystems. We cannot allow this to happen. The time has come to permanently protect this treasure. California is virtually unified in its opposition to lifting the moratoria on drilling the Outer Continental Shelf. Governor Schwarzenegger has publicly opposed offshore oil drilling and has called for the Federal Government to buy back the remaining 36 undeveloped Federal offshore oil and gas leases on the Outer Continental Shelf off the coast of central California. The Governor has said that he ``oppose(s) any efforts to weaken the federal moratorium for oil and gas leasing off the coast of California and I support efforts to make the moratoria and the Presidential deferrals for California permanent.'' Letter to Congressman Pombo, 11/ 3/05. That is what the bill we are introducing today would do--permanently protect California's coast from oil and gas drilling. California's Resources Secretary Mike Chrisman, the secretary of California Environmental Protection Agency, Alan Lloyd, and the Lieutenant Governor, Cruz Bustamante, have also been on record opposing any effort to lift the congressional moratorium on offshore oil and gas leasing activities. Secretary Chrisman, who is also the chairman of the California Ocean Protection Council, has in fact stated ``Any pending federal legislation regarding Outer Continental Shelf (OCS) oil and gas leasing must retain all protections from the Congressional leasing moratorium and should seek to make these protections permanent.'' Letter to Congressman Pombo, 9/27/05. Californians are all too familiar with the consequences of offshore drilling. An oil spill in 1969 off the coast of Santa Barbara killed thousands of birds, dolphins, seals, and other animals. We know this could happen again. A healthy coast is vital to California's economy and our quality of life. Ocean-dependent industry is estimated to contribute $17 billion to California each year. Californians have spoken loud and clear that they do not want drilling on the Outer Continental Shelf. This bill will provide the coast of California with the permanent protection needed.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I'm pleased to introduce this bill today to help California drinking water providers address the growing problem of perchlorate contamination. The California Perchlorate Contamination Remediation Act authorizes funds for perchlorate remediation of contaminated water sources. The bill provides: $50 million in grants for cleanup and remediation of perchlorate in water sources, including groundwater wells; and $8 million for research and development of new, cheaper, and more efficient perchlorate cleanup technologies. The bill also expresses the sense of Congress that the Environmental Protection Agency should promulgate a national drinking water standard for perchlorate as soon as practicable. The Defense Department and NASA use perchlorate in rocket fuel, missiles, and at least 300 types of munitions. The Defense Department has used perchlorate since the 1950s. Perchlorate has a short shelf-life, and must be periodically replaced in the country's rocket and missile inventories. Perchlorate readily permeates through soil and can spread quickly from its source. Over the last half century, improper disposal has allowed perchlorate to seep into surface and groundwater supplies. Perchlorate contamination of drinking and irrigation water is a serious threat to public health. Perchlorate interferes with the uptake of iodide into the thyroid gland. Since iodide helps regulate thyroid hormone production, perchlorate disrupts normal thyroid function. In adults, the thyroid helps regulate metabolism. Infants and children are especially susceptible to the effects of perchlorate because the thyroid plays a critical role in proper development. Even unborn babies can be affected by perchlorate. Insufficient thyroid hormone production can severely retard a child's physical and mental development. Perchlorate first appeared in drinking water wells in Rancho Cordova, CA in 1964. In 1985, the Environmental Protection Agency discovered perchlorate in several wells in the San Gabriel Valley in Southern California. By 1997, it was detected in 4 counties in California and in the Colorado River, and by 1999 perchlorate was discovered in the water supplies of 12 States. According to the California Department of Health Services at least 350 water sources in California, operated by 84 different local water agencies, now have perchlorate contamination. But perchlorate is not just a California problem. A study by Government Accountability Office found perchlorate in the water supplies of 35 States. The scope and magnitude of the perchlorate problem is still being defined and we are only beginning to discover the extent to which perchlorate has penetrated the food supply. Recent sampling by the Centers for Disease Control and Prevention found perchlorate in people living in States without contaminated drinking water. This suggests people all over the country are exposed to at least trace levels of perchlorate. In November 2004, the Food and Drug Administration released the results of its recent evaluation of perchlorate in the Nation's food. The FDA detected perchlorate in 90 percent of the lettuce samples taken from 5 different States, including California. The FDA also found perchlorate in 101 out of 104 milk samples taken from retail stores around the country. Samples labeled as organic also contained perchlorate. Last February, a study by researchers from Texas Tech University found perchlorate in all 36 samples of breast milk they tested. The milk was collected from women in 18 States, including California. With such widespread contamination in my State and across the country, I have serious concerns about the health and well-being of the most vulnerable among the population--infants, toddlers, pregnant women, and those with compromised immune systems. Let me speak for a moment about the challenges our water agencies are facing. As the population grows, so do the demands on our water supply. During times of drought, these demands are particularly challenging. States and communities rely upon their local water supplies, but are increasingly finding that these supplies are contaminated with perchlorate and other pollutants. When Federal agencies fail to protect adjacent water supplies from perchlorate contamination, the problem falls to local and regional water agencies to fix. These agencies already face staggering challenges both in delivering drinking water and managing wastewater services. Compounding these challenges with cleanup responsibilities for Defense Department activities is unfair, unreasonable, and unacceptable. Perchlorate contamination in California is primarily the result of releases from 12 defense sites and several government contractor sites. I applaud those contractors that have taken an active role in the cleanup of perchlorate. Unfortunately, clean up has only begun at a handful of contaminated sites. In many cities and counties around California, wells are being taken out of service because of perchlorate contamination. Sometimes cities and water agencies are forced to bring in water from other sources, often at a much higher price. Other times, they must install costly perchlorate removal equipment. This bill will provide much needed funds to water agencies for perchlorate remediation projects. Now that perchlorate has been detected in the water sources of 35 States, it has become a national problem requiring a national solution. I've approached several of my colleagues with a proposal that would address perchlorate contamination on a national level. My hope is that those representing States facing this problem will work with me on this issue. Today there is no Federal drinking water standard for perchlorate. In the absence of a Federal standard, States have acted independently to establish health-related guidance or regulatory limits for perchlorate in drinking water. The result is that each State has adopted a different preliminary guideline for perchlorate. Let me give you a few examples: California established a Public Health Goal of 6 parts per billion; Texas has a Drinking Water Action Level of 4 part per billion; Nevada has a Public Notice Standard of 18 parts per billion; New York has a Drinking Water Planning Level of 5 parts per billion; Arizona has a Health-Based Guideline of 14 parts per billion; and Massachusetts has an interim public health goal of 1 part per billion. Each of these States has adopted a different kind of regulatory guideline for perchlorate sending a confusing message to the public about what level is safe. It also frustrates the water agencies that strive to provide safe drinking water to consumers. Clearly, it is time for the Federal Government to establish a national standard for perchlorate. This bill would assist California water providers in their efforts to remove perchlorate from contaminated drinking water sources by providing $50 million dollars for 50 percent federally matched grants. To address the challenge of removing perchlorate from all of our water supplies, we must invest in costeffective and timely remediation solutions. To underwrite this effort, $8 million will be authorized for grants for research and development of new, cheaper, more efficient perchlorate cleanup technologies. It is time for the EPA to fulfill its obligation to protect public health. This bill expresses the sense of Congress that the EPA should promulgate a national drinking water standard for perchlorate under the timeline of the Safe Drinking Water Act as soon as practicable. Perchlorate contamination has placed an enormous financial burden on the water agencies who strive to provide high quality, safe drinking water to the citizens of California. Cleaning up contaminated water sources is equivalent to creating new water, a growing need in my state and throughout the West. I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I'm pleased to introduce this bill today to help California drinking water providers address the growing problem of perchlorate contamination. The California Perchlorate Contamination Remediation Act authorizes funds for perchlorate remediation of contaminated water sources. The bill provides: $50 million in grants for cleanup and remediation of perchlorate in water sources, including groundwater wells; and $8 million for research and development of new, cheaper, and more efficient perchlorate cleanup technologies. The bill also expresses the sense of Congress that the Environmental Protection Agency should promulgate a national drinking water standard for perchlorate as soon as practicable. The Defense Department and NASA use perchlorate in rocket fuel, missiles, and at least 300 types of munitions. The Defense Department has used perchlorate since the 1950s. Perchlorate has a short shelf-life, and must be periodically replaced in the country's rocket and missile inventories. Perchlorate readily permeates through soil and can spread quickly from its source. Over the last half century, improper disposal has allowed perchlorate to seep into surface and groundwater supplies. Perchlorate contamination of drinking and irrigation water is a serious threat to public health. Perchlorate interferes with the uptake of iodide into the thyroid gland. Since iodide helps regulate thyroid hormone production, perchlorate disrupts normal thyroid function. In adults, the thyroid helps regulate metabolism. Infants and children are especially susceptible to the effects of perchlorate because the thyroid plays a critical role in proper development. Even unborn babies can be affected by perchlorate. Insufficient thyroid hormone production can severely retard a child's physical and mental development. Perchlorate first appeared in drinking water wells in Rancho Cordova, CA in 1964. In 1985, the Environmental Protection Agency discovered perchlorate in several wells in the San Gabriel Valley in Southern California. By 1997, it was detected in 4 counties in California and in the Colorado River, and by 1999 perchlorate was discovered in the water supplies of 12 States. According to the California Department of Health Services at least 350 water sources in California, operated by 84 different local water agencies, now have perchlorate contamination. But perchlorate is not just a California problem. A study by Government Accountability Office found perchlorate in the water supplies of 35 States. The scope and magnitude of the perchlorate problem is still being defined and we are only beginning to discover the extent to which perchlorate has penetrated the food supply. Recent sampling by the Centers for Disease Control and Prevention found perchlorate in people living in States without contaminated drinking water. This suggests people all over the country are exposed to at least trace levels of perchlorate. In November 2004, the Food and Drug Administration released the results of its recent evaluation of perchlorate in the Nation's food. The FDA detected perchlorate in 90 percent of the lettuce samples taken from 5 different States, including California. The FDA also found perchlorate in 101 out of 104 milk samples taken from retail stores around the country. Samples labeled as organic also contained perchlorate. Last February, a study by researchers from Texas Tech University found perchlorate in all 36 samples of breast milk they tested. The milk was collected from women in 18 States, including California. With such widespread contamination in my State and across the country, I have serious concerns about the health and well-being of the most vulnerable among the population--infants, toddlers, pregnant women, and those with compromised immune systems. Let me speak for a moment about the challenges our water agencies are facing. As the population grows, so do the demands on our water supply. During times of drought, these demands are particularly challenging. States and communities rely upon their local water supplies, but are increasingly finding that these supplies are contaminated with perchlorate and other pollutants. When Federal agencies fail to protect adjacent water supplies from perchlorate contamination, the problem falls to local and regional water agencies to fix. These agencies already face staggering challenges both in delivering drinking water and managing wastewater services. Compounding these challenges with cleanup responsibilities for Defense Department activities is unfair, unreasonable, and unacceptable. Perchlorate contamination in California is primarily the result of releases from 12 defense sites and several government contractor sites. I applaud those contractors that have taken an active role in the cleanup of perchlorate. Unfortunately, clean up has only begun at a handful of contaminated sites. In many cities and counties around California, wells are being taken out of service because of perchlorate contamination. Sometimes cities and water agencies are forced to bring in water from other sources, often at a much higher price. Other times, they must install costly perchlorate removal equipment. This bill will provide much needed funds to water agencies for perchlorate remediation projects. Now that perchlorate has been detected in the water sources of 35 States, it has become a national problem requiring a national solution. I've approached several of my colleagues with a proposal that would address perchlorate contamination on a national level. My hope is that those representing States facing this problem will work with me on this issue. Today there is no Federal drinking water standard for perchlorate. In the absence of a Federal standard, States have acted independently to establish health-related guidance or regulatory limits for perchlorate in drinking water. The result is that each State has adopted a different preliminary guideline for perchlorate. Let me give you a few examples: California established a Public Health Goal of 6 parts per billion; Texas has a Drinking Water Action Level of 4 part per billion; Nevada has a Public Notice Standard of 18 parts per billion; New York has a Drinking Water Planning Level of 5 parts per billion; Arizona has a Health-Based Guideline of 14 parts per billion; and Massachusetts has an interim public health goal of 1 part per billion. Each of these States has adopted a different kind of regulatory guideline for perchlorate sending a confusing message to the public about what level is safe. It also frustrates the water agencies that strive to provide safe drinking water to consumers. Clearly, it is time for the Federal Government to establish a national standard for perchlorate. This bill would assist California water providers in their efforts to remove perchlorate from contaminated drinking water sources by providing $50 million dollars for 50 percent federally matched grants. To address the challenge of removing perchlorate from all of our water supplies, we must invest in costeffective and timely remediation solutions. To underwrite this effort, $8 million will be authorized for grants for research and development of new, cheaper, more efficient perchlorate cleanup technologies. It is time for the EPA to fulfill its obligation to protect public health. This bill expresses the sense of Congress that the EPA should promulgate a national drinking water standard for perchlorate under the timeline of the Safe Drinking Water Act as soon as practicable. Perchlorate contamination has placed an enormous financial burden on the water agencies who strive to provide high quality, safe drinking water to the citizens of California. Cleaning up contaminated water sources is equivalent to creating new water, a growing need in my state and throughout the West. I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN. Mr. President, I rise today in support of the California Ocean and Coastal Protection Act, introduced by Senator Boxer and myself, to permanently protect California's coast from oil and gas drilling. We simply cannot gamble away California's majestic coastline. An oil spill would scar our coastline, costing billions and destroying ecosystems. We cannot allow this to happen. The time has come to permanently protect this treasure. California is virtually unified in its opposition to lifting the moratoria on drilling the Outer Continental Shelf. Governor Schwarzenegger has publicly opposed offshore oil drilling and has called for the Federal Government to buy back the remaining 36 undeveloped Federal offshore oil and gas leases on the Outer Continental Shelf off the coast of central California. The Governor has said that he ``oppose(s) any efforts to weaken the federal moratorium for oil and gas leasing off the coast of California and I support efforts to make the moratoria and the Presidential deferrals for California permanent.'' Letter to Congressman Pombo, 11/ 3/05. That is what the bill we are introducing today would do--permanently protect California's coast from oil and gas drilling. California's Resources Secretary Mike Chrisman, the secretary of California Environmental Protection Agency, Alan Lloyd, and the Lieutenant Governor, Cruz Bustamante, have also been on record opposing any effort to lift the congressional moratorium on offshore oil and gas leasing activities. Secretary Chrisman, who is also the chairman of the California Ocean Protection Council, has in fact stated ``Any pending federal legislation regarding Outer Continental Shelf (OCS) oil and gas leasing must retain all protections from the Congressional leasing moratorium and should seek to make these protections permanent.'' Letter to Congressman Pombo, 9/27/05. Californians are all too familiar with the consequences of offshore drilling. An oil spill in 1969 off the coast of Santa Barbara killed thousands of birds, dolphins, seals, and other animals. We know this could happen again. A healthy coast is vital to California's economy and our quality of life. Ocean-dependent industry is estimated to contribute $17 billion to California each year. Californians have spoken loud and clear that they do not want drilling on the Outer Continental Shelf. This bill will provide the coast of California with the permanent protection needed.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today the Senate will take up the conference report on the USA-PATRIOT Reauthorization and Improvement Act, as modified by an agreement reached last week. I am the original Democratic cosponsor of the unanimously passed Senate bill, as well as a cosponsor of the Combating Methamphetamine Epidemic Act and the Reducing Crime and Terrorism at America's Seaports Act, both of which are incorporated into the conference report. I will vote in favor of cloture on this bill, and will vote in favor of the bill when and if it comes to a vote. At the end of last year, after careful consideration, I voted against cloture on the conference report. I took this step because of two basic concerns, both of which have been substantially diminished by the agreement which is before us today. These changes, and the fact that a consensus agreement has been reached, are the reason I am changing my position. My first concern was with some of the provisions of the conference report. Specifically, the conference report did not provide adequate judicial review of so-called gag orders associated with the issuance of national security letters, and required those who wanted to contest these orders before a court to disclose information about their legal counsel to the FBI. This was unnecessary and inappropriate, and it has been changed. The revised conference report clarifies that a gag order will be reviewed by a Federal court and ensures that this review will include an inquiry into whether the Government is acting in bad faith. The compromise also eliminates the onerous requirement of prior notification to the FBI about legal counsel. On the other hand, the revised conference report does not go as far as I would have preferred. It does not adopt the original Senate language with respect to the standard to be applied for granting a Foreign Intelligence Surveillance Act warrant for physical items, including business records. This issue, usually referred to by its PATRIOT Act section number, 215, remains very controversial, and I believe the language could permit inappropriate fishing expeditions if not carefully monitored. However, the agreed-upon language does make clear that libraries performing traditional functions are largely exempt from the more intrusive aspects of the law. Importantly, the conference report retains and extends sunset provisions on the most controversial provisions, including section 215. This is critical, as these sunset provisions, which expire in 2009, are an important element of the continued vigorous oversight necessary to ensure this law is carried out in an appropriate manner. The second concern I had was that it appeared that efforts to forge a compromise bill had fallen apart, with acrimony and rancor marking the progress of negotiations. This was, in my view, tragic. I have long been a supporter of the USA-PATRIOT Act. I believe it is a critical tool in defending the Nation against terrorism. But I believe that it is a tool that is most effective when it is accepted as a bipartisan, nonpolitical, effort. Simply put, if there is one area where partisan debate and petty politics have no place, it is in the area of national defense against terrorism. So I believed strongly that a compromise bill supported by Members of both parties was essential. I recognize that achieving consensus means, almost by definition, that nobody will be completely happy with the outcome. As I noted, there are changes I would have made to this law, and I am sure most of my colleagues, Democrats and Republicans, would like other changes. But compromise and consensus require concessions and flexibility. That is why I will vote today against cloture, and why I plan to vote for the bill itself. I explained my views in a letter I sent to the Attorney General in December. In that letter I explained, and I quote: It was clear to me that Senate and House negotiators had come very close to reaching agreement on the Conference Report. I believe this was critical, because only through such a consensus approach can we ensure that the Patriot Act does not continue to be polluted with partisan rancor. This law is extremely important to the safety of America, and its effectiveness depends in large part on ordinary Americans believing it is a product not of partisan politics, but of reasoned debate and compromise. Because I believed consensus was so close at hand, and so important, I voted to provide Congress additional time to resolve the last points of disagreement. Thus I was disheartened to hear that the Administration has determined not to encourage further discussion on improving and refining the Conference Report--rather, to stand fast, and urge Senators to change their votes. I hope that this is not the case. . . . With that hope, I ask that you direct your staff to work with both Republicans and Democrats to address the few remaining issues. I am confident that good-faith discussion, honest debate, and careful drafting can reduce, perhaps even eliminate, some of the points of disagreement. . . . It is critical that the Congress and the Administration demonstrate our ability to work towards consensus and agreement. I hope you will work with me to that end. The USA-PATRIOT Act has come to be terribly misunderstood. Some think it is related to Guantanamo Bay and the detention of prisoners. Others are convinced that it authorizes torture or the secret arrest of Americans. It does none of these things. At the same time, some have irresponsibly sought to characterize anyone who seeks to improve, or criticize, the law as somehow ``playing into the hands of the terrorists.'' They have implied that the USA- PATRIOT Act would expire in its entirety, and that we would be left with no defenses against terrorist attacks. This, too, is untrue. When I spoke on this floor in December, advocating working together, I said, ``Congress has a long, and honorable, tradition of putting aside party politics when it comes to national security . . . it is critical that this approach be carried forward to the end, and that Congress reauthorize the USA-PATRIOT Act in a way that Americans can be confident is not the product of politics.'' I am pleased that we followed that tradition and that we put aside our differences and reached agreement. The fact that the White House and the Attorney General backed down from their intransigence and were willing to discuss and compromise is also a welcome change, and hopefully a sign of a more open approach to these issues in the future. I expect this bill will pass into law. I believe it will make America safer. It is the responsibility of the Congress to ``provide for the Common Defense,'' and I believe we live up to that duty in this bill. But our job will not end here. We must immediately turn to our oversight responsibilities. For instance, I understand that Senator Specter will be continuing his inquiry into the NSA Surveillance Program, and tomorrow the Senate Intelligence Committee will hopefully agree to take up their oversight responsibilities with respect to this program. The Judiciary Committee will also soon be holding a hearing designed to look at the FBI's progress in accepting its newly expanded intelligence missions and assess whether these efforts have been successful and whether they conform with the rule of law. I look forward to expanding on the spirit of compromise that this bill represents. I ask unanimous consent the letter to the Attorney General dated January 9, 2006, be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I thank the chairman of the committee. I note that the ranking member is here also. If he would like to go ahead of me, I have no problem with that.

Mrs. FEINSTEIN. I thank the Senator very much for that. Mr. President, let me give you at least my bottom line of this bill. Up to 2004, 74 American companies had been bankrupted. Salaries have been diminished for a large number of people. More people are thrown into the unemployment market as a product of bankruptcy. Victims receive less than 50 percent on the settlement dollar. Those are facts. It is deeply disturbing to me. I deeply believe that a no-fault fund, which has a medical board that evaluates the medical condition of an individual and automatically grants that individual an amount of money, is a much sounder way to go. Now, clearly, this is complicated legislation and there are difficult and technical issues involved. But a lot of misinformation has plagued the asbestos debate, and it continues to be repeated. I cannot say we have a perfect bill, but we have tried, and tried very hard. This has not been a take-it-or-leave-it bill. The chairman and the ranking member have been open to suggestions. They have been open to requests for amendments. There will be a substitute amendment that further refines the bill. Today, I want to discuss the concerns raised by those who oppose the bill and provide what I hope are important points. On Thursday, one Senator argued: It really comes down to a very basic question--the question of whether or not this bill has been carefully crafted, whether or not it contains enough money in the trust fund to compensate the hundreds of thousands of asbestos victims that will have to count on it. Let me address the beginning of that statement, Mr. President. I cannot think of any other bill where more time, more effort, and more man-hours have been committed to thoroughly understanding and trying to address all of the complex issues, and even to respond to the hypothetical issues that might potentially come up. The drafters of this legislation have worked for literally thousands of hours through the process of dozens of meetings over the past six years. The Judiciary Committee has held at least 8 hearings on the asbestos bill--4 just in the past year--and has heard testimony from 57 witnesses. We have met with experts from all sides who currently evaluate asbestos claims and make statistical projections for companies, for victims, and the courts. We met with doctors, victims, corporate CEOs, and general counsels. We met with trial lawyers, insurance representatives, and individuals who work for asbestos bankruptcy trusts. I recognize that there are real concerns from the opponents of the bill. Some people are unsatisfied with some of the compromises that have been incorporated. But to assert that the legislation was not carefully drafted is one argument that has no basis in reality. Now for the second part of the argument. Again, it is important to remember the history. Through this extensive consultation process, it became clear that there was an expected range of claims that could come into the fund. From this, several different experts, including Goldman Sachs, calculated the amount of funding necessary to cover the claims' values that the bill provided and the number of claims that the fund would pay based on the range of claims. We learned that the amount necessary to create a national trust was between $90 billion and $155 billion. The legislation now on the floor has funding of $140 billion--clearly, on the high side of the range of what the technical experts expect. I also think it is important to remember that previous versions of the asbestos bill had significantly less guaranteed contributions. S. 1125 provided $108 billion, with a $45 billion contingent fund. S. 2290 provided $104 billion, with a $10 billion contingent fund. However, each of these bills assumed that part of the money to pay claims would be collected through interest on savings. They did not meet the full funding through guaranteed contributions by businesses and insurers as this bill does. That is a significant difference. The underlying assumption of the prior two bills was that the amount of money being paid into the trust would be more than sufficient to pay claims and, instead, there would be an excess that the administrator could invest to help build the trust fund's assets. So the amount of money being paid into the fund was much less than $108 billion and $104 billion. In addition, neither of those bills contained provisions to guarantee that the remaining companies would be required to make up any potential shortfall. Yet the bill on the floor of the Senate today is over $30 billion above S. 1125 and S. 2290 in guaranteed contributions, with no contingency funding. In addition, when the CBO was asked to evaluate how much money the fund would need to pay claims, it projected that ``the proposed fund would be presented with valid claims worth $120 billion to $150 billion.'' This is the CBO language: CBO expects that the value of valid claims likely to be submitted to the fund over the next 50 years could be between $120 billion and $150 billion, not including possible financing (debt service costs) costs and administrative expenses. Again, $140 billion is well within the expected range. I think it is also important to note that throughout the process, the medical criteria has been tightened. I don't believe anybody really speaks to this. One category of claims--individuals who had lung cancer but no underlying asbestos markers--has been eliminated from the bill. An Institute of Medicine study has been added to the legislation that requires an evaluation of the link between asbestos exposure and cancer, other than lung cancer. If that link cannot be established by the IOM, then those claims will not receive compensation. With these modifications, the number of claims coming into the trust will be substantially reduced. Finally, many protections have been put in place that ensure that if, in the long run, the trust does not have sufficient funding to cover all claims, individuals will be returned to the tort system--the very solution opponents are advocating now. So if the trust were to run out of money, the individual would go back to the tort system. Some opponents also argue that passage of this act would lead to federalizing the responsibility for asbestos claims. We just heard this in the Democratic Caucus. It is this argument that is being used to make the case for a budget point of order against the bill. Some opponents have argued that the trust creates a new, albeit capped, entitlement for claimants. However, this statement is very misleading. According to the Congressional Research Service, entitlement programs are a form of mandatory spending which require the payment of benefits to persons if specific criteria established in the authorized law are met. If one only looked at the first part of the definition of entitlement, this concern may be understood. However, CRS further states that entitlements are not subject to discretionary appropriation from Congress. Instead, they are subject to mandatory appropriations. Entitlement payments are legal obligations of the Federal Government, and beneficiaries can sue to compel full payment. This is not the case here. Let me state that again. This is not the case here. The trust fund created by this legislation will be privately funded. The money collected for the trust comes from businesses and insurance companies. It does not come from the U.S. Treasury. While some opponents acknowledge that the Federal Government must play a role in the trust fund for it to be classified as an entitlement, they inaccurately conclude that if an individual satisfies the medical criteria and filing deadlines, then he or she is entitled to compensation from the Federal Government. This is not true. Although the program will be housed in the Department of Labor, the bill ensures that all expenses, including administrative expenses, are paid by the moneys collected from businesses and insurers. In addition, as an extra protection, it is expressly stated several times throughout the bill that the United States, or the U.S. Treasury, will in no way be required to satisfy any claim or any costs if the amount in the trust is inadequate. This bill expressly provides: Repayment of moneys borrowed by the administrator is limited solely to amounts available in the fund. It also states that nothing in this act shall be construed to create any obligation of funding from the U.S. Government, including any borrowing authorized. Read section 406(b). This is what the opponents say is not there. This is the face of the bill. It is there: Nothing in this act shall be construed to create an obligation of funding from the United States Government . . . or obligate the United States Government to pay any award or part of an award, if amounts in the fund are inadequate. I don't know what better guarantee there can be. If someone can suggest one, I am sure the chairman and the ranking member, and certainly myself, would agree to add it to the bill. With these explicit statements throughout the bill, it is abundantly clear that this legislation will not be a burden on the U.S. Treasury. While Congress can obviously pass any law it so chooses in the future, this bill specifically states multiple times in the text that taxpayers and the U.S. Treasury will in no way be required to cover any shortfall, any administrative costs, any debt or interest costs, or any costs incurred by the trust fund. Therefore, the only way taxpayers will be called upon to subsidize this legislation is if a future Congress chooses to pass, and the President signs, new legislation which would create such an obligation. This seems to me very unrealistic and highly unlikely. But even if it were to come to pass, we should not defeat this bill because of what some other Congress and some other President may or may not do at some time in the future. Opponents also argue that the Federal Government's liability is likely to arise through the debt service. They argue that the administrator could borrow beyond the fund's ability to repay the Treasury. I wish to respond to that. This statement ignores the plain text of the bill. The administrator's ability to borrow funds from the Federal Financing Bank is only available for the first 5 years. Section 221 states: The administrator may borrow from the Federal Financing Bank in accordance with section 6 of the Federal Financing Bank Act of 1973 as needed for performance of the Administrator's duties under this Act for the first 5 years. So for the first 5 years, there can be some borrowing. How is that borrowing limited and how is the loan paid back? This same section specifically limits the borrowing capacity of the administrator so that he or she may not overextend the fund's assets by borrowing beyond what the trust fund will be able to repay. Again, section 221 states: The maximum amount that may be borrowed under this subsection at any given time is the amount that, taking into account all payment obligations related to all previous amounts borrowed in accordance with this subsection and all committed obligations to the fund at the time of borrowing, can be repaid in full with interest in a timely fashion from the available assets of the fund as of the time of borrowing, and all amounts expected to be paid by participants during the subsequent 10 years. So it requires the administrator to look at what he or she could potentially repay and what contributions are still outstanding. It is hard to believe that any private lending institution would risk lending money to the trust fund which it could not clearly repay in the future. However, even if some private institution decided to take that risk, the bill specifically prohibits the administrator from entering into such a financially risky transaction. As I just read, the explicit language in the bill limits the administrator's borrowing capacity to an amount that can be repaid in full with interest from the available assets of the fund as of the time of borrowing and all amounts expected to be paid by participants during the subsequent 10 years. Finally, those who support the budget point of order argue that collection of the contributions by the businesses and insurers could fail to materialize, leaving the U.S. taxpayer on the hook to cover the costs, and we should look at that. We should look at it very carefully. But this ignores explicit provisions contained in the legislation. Senator Leahy and I fought hard to ensure that the payment obligations included in the bill were enforceable and guaranteed. First, the bill gives the administrator enforcement authority to compel payment by the companies, both defendant businesses and insurers alike. Let me quote section 223. It provides: If any participant fails to make any payment in the amount of, and according to, the schedule under this Act or as prescribed by the Administrator after demand and a 30-day opportunity to cure the default, there shall be a lien-- Not there may be a lien; there shall be a lien, mandatory language-- for the amount of the delinquent payment (including interest) upon all property and rights to property, whether real or personal, belonging to such participant. The participants of the fund are liable for the maintenance of the fund. I don't see how it could be any clearer. The chairman of the committee who is the author of this bill is in the Chamber. If someone has an amendment and comes to the chairman and says: Look, we think there is an oversight here or there, it could be tightened up by doing X or Y, I am sure this chairman will listen. But the language is very specific: If any participant fails to make any payment in the amount in the schedule under this act or as prescribed by the administrator after a demand and 30 days to pony up to cure the default, there shall be a lien for the amount of the payment, including interest, upon all property and rights to property. That includes every big business, every big insurance company, everyone that is in this fund, and it is only within that initial period that the administrator can, in fact, borrow. So how people come to the conclusion that the Government is on the hook for $40 billion I will never understand. If the company refuses to pay or fails to pay, the administrator must get a lien from a court on the company's assets in order to compel payment. Secondly, the bill ensures that if any one company cannot pay its obligation under the trust fund--and this is important--if any one company can't pay its obligation under the trust fund, the other companies must shoulder the cost. Specifically, section 204(h)--please read it, opposition--Guaranteed Payment Surcharge, states that if the required contribution does not come in, The administrator shall assess a guaranteed payment surcharge. Here it is, section 204(h)(3): To the extent it is insufficient to satisfy the required minimum aggregate annual payment, the administrator-- Not may-- shall assess a guaranteed payment surcharge. So the administrator shall collect any shortfall in contributions from other defendant companies. This legislation contains specific language to require that companies pay and that if the enforcement mechanism should fail for any reason, the the money still comes into the trust through payments from other companies. With explicit language protecting the American taxpayer and the U.S. Treasury from ever having to contribute to the fund, with explicit language limiting the administrator's borrowing authority, and with explicit language ensuring that the anticipated contributions are made, this legislation makes it abundantly clear that in no way, shape, or form can the trust harm the Federal budget. Opponents of the bill argue that those of us who support the bill have ``significantly distort[ed] CBO's conclusions'' and, at the same time, they assert that CBO ``likely understates'' the amount of money needed for the trust. They argue that because CBO uses qualifiers in their estimates such as acknowledging uncertainties in calculating the number of claims and the amounts to be paid, that one must draw the conclusion that CBO actually believes the cost to be much higher than that which is contained in their paper. Yet time and time again, when CBO has been asked to review their estimate and make changes based on new information, including the rather notorious Bates White study, they have declined to make changes. I was in that hearing; I heard the Director of CBO decline to make changes directly after the Bates White testimony. With each request, CBO has refused to alter its estimate of the projected costs. This is what they said in a letter to Chairman Specter dated December 19, 2005: The Bates White Report contains no new information that would cause CBO to revise its cost estimate. The size of the fund is based on the strongest statistical data and economic models available. Now, that is the best that is out there. That is the state of the art. Some can say it isn't enough. I can't counter that. All I know is that the committee sought the best, the committee sought the most responsible. As I said on the floor previously, a leading actuary with Tillinghast-Towers Perrin, an actuarial firm for the Manville Trust, testified before the committee that ``$108 billion appears to be more than adequate,'' and the RAND Institute estimates the future remaining costs of asbestos-related loss and expense at $130 billion. In addition, the new projections calculated by Tillinghast also confirm that the contributions to the asbestos trust fund should be sufficient. While opponents argue that the latest Tillinghast studies support their argument that there is inadequate funding, a closer analysis reveals that the new Tillinghast projections are actually in line with the projections used to calculate the money necessary to pay claims under the bill. Let me tell you how that happens. The new Tillinghast claims projections include claims for foreign exposures as well as Manville's level VI cancers. Both of these categories of claimants are ineligible for compensation under this bill's medical criteria. When these changes are accounted for and the Tillinghast numbers are adjusted, their new projections fall squarely within the range that the asbestos trust fund is based on, and the adjusted Tillinghast numbers are actually less than CBO's projections. In addition, by using a no-fault administrative system, the fund will significantly reduce the substantial transaction costs of the current tort system, costs which almost all experts agree consume more than half of the total amount paid out for asbestos claims. Remember at the beginning I said that one of the most startling things to me was to realize what happens with settlements, what happens to the dollars of settlements. The fact is that 61 percent of all of the settlement monies go for defendant costs, go for plaintiff costs, go for court costs, go for legal fees. Sixty-one percent. Sixty-one percent, then, of any tort court sum goes not to the victim but to lawyers and to tort costs. In addition, by using a no-fault administrative system, the fund significantly reduces the substantial transaction costs of the current tort system: (A) you don't need a lawyer; and (B) if you want to come in with a lawyer, that lawyer is limited to a 5-percent fee--not 30, 40, 50, 60, or 70 percent of a recovery, but 5 percent. According to the RAND Institute, 58 percent of the money spent on asbestos claims goes toward attorney's fees--31 percent to defense attorneys, and 27 percent to plaintiff attorneys. I urge everyone to read the RAND Institute's recent study. It is 168 pages. It describes what is happening in the tort system, and it is an independent, very good analysis. The bottom line: The asbestos bill needs less money to pay victims fair compensation since it eliminates these transaction costs which drain money away from the individual. This bill as amended obligates defendant and insurer participants to contribute $136 billion--that is a lot of money--$136 billion to the fund, and at least $4 billion more would be contributed from confirmed bankruptcy and other asbestos compensation trust funds. In fact, CBO recently estimated that the amount to be contributed by bankruptcy trusts will likely be around $8 billion. Here is what CBO said: The value of cash and financial assets of the asbestos bankruptcy trust funds would be $7.5 billion in 2006 and $8.1 billion when liquidated. As I stated previously, if the projections are wrong and the amount of money available proves to be insufficient in the long run, victims will be allowed to return to the courts. With this safety net, the legislation ensures that no one is left without an avenue of recourse. Some people have said there is a lack of certainty. A lack of certainty is not unusual when projecting what might occur in the future for the Federal budget or for future programs. I do not believe that uncertainty or ambiguity necessarily leads to the conclusion that the trust fund will require more funding. But I would hope opponents would view the ambiguities for what they are--an acknowledgment that no one can predict the future with 100 percent certainty, and the best anyone can do is make projections using sound statistical analyses, which this committee's bill has attempted to do. We don't know how many people have been exposed to asbestos and, of course, who will develop a disease--nor can we possibly know. However, that should not mean that we do nothing, that we let the present system, which we know is not good, prevail. That does not mean that the analyses and projections that have been done are useless, not valuable, or inaccurate. Instead, we have to find the best projections available, the most sound, the ones that are based on sound calculation and real- world experience of other trusts. That is what this legislation does. Another argument made by opponents is that there will be additional costs related to the debt service that could overwhelm the trust. Some have declared: Debt service contributes greatly to the trust fund's insolvency, underlining the severe mismatch between the timing of payments into the fund. Opponents have said that this conclusion is based on the argument that there will be a flood of claims at the start of the trust. However, this concern has also been examined and addressed through the process of drafting this bill. The so-called upfront funding has been significantly increased to the point where the trust fund now will have $42 billion in the first 5 years to pay claims. Under S. 2290--the old bill--the administrator would have collected up to $19 billion during the first 3 years and only $29 billion in the first 5 years. The difference is $15 billion has been added to the upfront funding of this bill. That is a 30-percent increase in the startup funding from what was provided in the bill last Congress. In addition, the Judiciary Committee adopted an amendment to speed up the initial contributions by insurers, defendant companies, and bankruptcy trusts so that the administrator can pay claims quickly. Section 204 requires the defendant companies to pay their initial payment within 90 days from the date of the enactment, and we are very serious about that. Section 212 requires the insurers to make their first payment within the same time line. And Section 402 requires the bankruptcy trusts to also make their first payment within the first 90 days. Here is what the bill says: Each defendant participant shall file, not later than 90 days; insurer participants, not later than 90 days. This is bill language. The assets in any trust established to provide compensation shall be transferred to the fund not later than 90 days after enactment. So everything is done in this bill to move a fast start forward. Within 3 months, the administrator will have collected initial payments from all the participants and will have almost $9 billion. Next, the bill includes a streamlined process to settle claims of terminally ill individuals immediately--immediately--upon enactment of this legislation. That is what is so attractive to me. Someone who has a very short time to live, someone with mesothelioma, has a chance of getting paid upfront, right away--much more than a chance, a commitment. This provision ensures the terminally ill individuals will have their claims processed quickly, and it should resolve some of the most pressing and most expensive claims before the trust is up and running so that there will not be an overwhelming flood of claims filed with the trust on day one. Senator Specter included language in the statute of limitations to give individuals sufficient time to file their claims--5 years--so there will not be a need to rush to the fund for fear of being cut off and the administrator and the medical board can concentrate on the sickest people first. Finally, as I mentioned previously, there are tight restrictions on how much the administrator may borrow for the express purpose of ensuring that the trust does not face a shortfall simply because of a debt service problem. I would like to address the Bates White study in a little more depth. When opponents argue that the projections are too low, many of the arguments made to support this conclusion appear to be based on the Bates White study. During consideration of this legislation, the Committee held a hearing on the Bates White study and asked CBO to review its conclusions. I was present and listened carefully to the testimony. Several criticisms and concerns were raised about the Bates White study, its assumptions, and its methodology. Witnesses before the Committee made several points that significantly undermined the credibility of the Bates White study. First, witnesses argued that the Bates White study overestimated occupational exposure. In determining the overall number of individuals who could recover from the bill the Bates White study appears to have counted every employee who ever worked in an industry where there was asbestos exposure. This conclusion was reached by comparing the Bates White study to the Nicholson study. The Nicholson, Perkel and Selikoff study, conducted in 1982, set the standard on this subject and is considered the most comprehensive asbestos study. It provides a good foundation for estimating the future cases of asbestos disease, and has been utilized in many of the models to develop future asbestos disease claims projections, including claims projections made for the Manville Trust. Yet, Bates White's conclusions are almost triple Nicholson's. Navigant is a consulting firm that has worked on asbestos claims since the 1980s doing evaluations of claims projections and costs to companies. During the hearing, Navigant's witness explained that this discrepancy seemed to occur because Bates White simply used a straight percentage of the total U.S. workforce, whereas Nicholson conducted an extensive analysis of the industry and occupational exposure to asbestos. Next, Bates White did not make a distinction in its calculations between exposed populations and eligible populations. This means that in the Bates White study it appears that every person who was ever exposed to asbestos was counted as eligible under the trust fund. However, not all individuals who are exposed to asbestos will become sick, nor will all individuals who are exposed to asbestos be able to meet the medical criteria and the exposure requirements necessary to receive compensation. While considering asbestos legislation, several witnesses have pointed out that just because someone may have been exposed to asbestos at some point in their lifetime, it does not follow that they will become sick or will qualify for payment. I think this is an important point and is feeding some of the misperceptions around this bill. The science has not determined that every person who is exposed to asbestos will get sick. This is true not just because each individual is different from one another and has differences in their immune systems, but because developing an asbestos-related disease usually requires prolonged and sustained exposure. Asbestos is a naturally-occurring mineral and most of us have been exposed to asbestos dust simply by walking outdoors. However, the current science concludes that casual contact is rarely sufficient to develop an asbestos disease. Dr. James Crapo is Professor of Medicine at the National Jewish Medical and Research Center. He has more than 25 years of experience with asbestos-related issues, including medical research and clinical treatment of patients suffering from asbestos-related diseases and has published in the field of environmental toxicology, including the basis of asbestos-induced lung injury. He testified that: All of us are exposed to asbestos from the environment and consequently have asbestos in our lungs. This background level of exposure does not cause any asbestos-related disease. Those diseases normally require substantial occupational exposures or the equivalent. In addition, the Navigant and the labor witnesses pointed out that the Bates White study did not seem to take into account that exposure rates within certain occupations decreased over time. This means that the Bates White study did not account for the fact that as companies became more aware of the dangers of asbestos they often did more to protect their workers. The committee also heard from Dr. Laura Stewart Welch, a board- certified physician in internal medicine and occupational medicine. She has an active medical practice and treated many workers with asbestos- related disorders. She is currently medical director for The Center to Protect Workers Rights, a research institute affiliated with the Building and Construction Trades department of the AFL-CIO, and has authored over 50 peer-reviewed publications and technical reports in the field of occupational and environmental medicine, including papers describing the findings of asbestos-related disease in this group of construction workers. She pointed out that the overall number from which Dr. Bates calculated the claims that will go into the trust is at least ten times too big. She explained that Dr. Bates extrapolated from a study that uses 2-3 fiber years as the basis for what constitutes significant exposure. The reference to fiber years is a way to calculate how much asbestos an individual has been exposed to. However, the legislation requires at least 25-40 fiber years to constitute significant exposure. So the legislation requires a much higher level of exposure to qualify. Witnesses concluded that by failing to adequately consider each of these factors, the Bates White study provided a significant overestimation of claims. Next, the committee heard testimony that argued the estimates made by the Bates White study do not reflect current experiences. The Bates White study asserts that by creating a no-fault system there will be a huge increase in filing of other cancer claims because it is no-fault rather than the adversarial system in the courts. However, the Manville Trust has similar, and in some cases exactly the same, medical criteria as the criteria in the FAIR Act, and it does not have litigation costs nor the deterrent of the adversarial system. The Manville Trust was formed in 1988, and is the first and largest asbestos trust. In fact, it is not just the largest asbestos trust, but it is the largest toxic tort or personal injury trust of any kind. As of mid-2005 the trust had paid about $3.3 billion to settle 655,096 claims. The Manville Trust has gained so much experience in the field of asbestos claims settlements that it plans to begin offering claims- resolution services to other companies. Therefore, the experience of the Manville Trust should be considered a fair starting point for projections. When comparing the Bates White study to Manville, witnesses from the committee hearing asserted Bates White projections are four times higher for other cancers than Manville. This was viewed as well outside a reasonable difference. In addition, witnesses pointed out that there are several evidentiary requirements that do not seem to be adequately accounted for. In the two areas where the Bates White study predicts significant growth in claims, it does not account for the role of the physicians panel which is made up of three doctors who will personally review claims. Lastly, the committee heard from experts who stated that the Bates White study used a methodology that has not been accepted by the unions, businesses, insurers, trial lawyers, CBO, the current bankruptcy trusts, or the courts now hearing asbestos cases. For all these reasons, many of us concluded that the Bates White analysis fell far outside acceptable ranges for projections. To be clear, throughout this process both the AFL-CIO witness as well as business witnesses disputed the assumptions underlying the Bates White study and rejected its conclusion. The next argument used by opponents is that the asbestos trust fund is going to fail because other trust funds have failed. This is not a new concern. In fact, throughout the process we looked at previous trust funds and attempted to evaluate the problems that arose. The Black Lung Disability Fund was established by the Black Lung Benefits Revenue Act to pay black lung benefits to eligible miners whose mine employment ended before 1970 or whose employers were no longer in existence and therefore could not be assigned liability for their benefits. It was funded by excise taxes levied on coal sold by mine operators, but the Act includes language for repayable advances to the fund from the U.S. Treasury. This meant that when the Black Lung Trust Fund's resources were inadequate to meet its obligations the U.S. Treasury could advance the fund money to cover the costs. This provision is intentionally not included in the asbestos bill and instead language stating the opposite is included. It is true that the number of black lung benefit claims were vastly underestimated and the costs of the black lung program were also underestimated. However, while the Black Lung Fund's costs were to be paid by industry, by 1977, 7 years after enactment, industry had made very few payments to the fund. The fund then sustained a deficit and the U.S. Treasury had to pay claims because of this default by mining companies. We did not ignore the problems created by the Black Lung Fund, rather we included several provisions in the asbestos bill to prevent this situation from taking place. They are: explicit language prohibiting the Administrator from requiring any costs to be paid by U.S. Treasury; limits on borrowing authority and capacity; strong enforcement provisions if businesses default; requirements that other companies cover any potential shortfall; and reversion to the tort system if the trust runs out of money. I have already discussed the language in the asbestos bill to ensure that the business and insurer contributions are made and enforced, and to limit how much the administrator may borrow. Finally, I would like to address an overarching concern that has been repeated throughout the debate. Interestingly, opponents keep arguing for 100-percent certainty. I don't know when we are ever provided 100- percent certainty. Congress is supposed to look at all the information available, hold hearings, raise questions, draft legislation, offer amendments and then try to pass a statute. That is exactly what has been done here. Senators Specter and Leahy have gone well beyond what is normally done around here to address problems. Every time an issue has been raised, they have tried to address the problem and find a solution. This stands in sharp contrast to the take-it-or-leave-it process that often describes legislative craftsmanship. To now hear my colleagues express such an intense level of outrage that the bipartisan bill before the Senate does not contain adequate certainty or enough compromises is hard to swallow. To argue that a bill should not move forward because there might be unintended consequences would mean we would almost never pass legislation. And if we can't pass legislation unless we can guarantee there will never be an unintended outcome, then we might as well pack up and go home. I should say I think this is a very important bill. Let me end with what I started. People who think the tort system is the way to go, who think it is OK that 61 percent of the settlement dollars go to transaction costs, who think that the victims who do not get this money are best served by the tort system--they are going to vote to sustain the point of order against the bill. For those of us who believe it is the sickest victims who are going to be best taken care of in this trust, that this trust sets up an orderly and medically oriented protocol for a no-fault trust system and that victims are going to benefit from it and businesses will cease going into bankruptcy because of it, if you think that is a worthy thing, then you will vote for us. I thank the Chair. I particularly thank the chairman and the ranking member of the committee. This has not been an easy bill. I truly believe they have both done a wonderful job, in the finest interests of the Senate, by working together across the aisle.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to introduce the Fairness in Judicial Salaries Act. This legislation is needed to prevent a continuing decline in the pay of our Federal judges and prevent damage to the quality of our judiciary. Impartial, dedicated, and wise judges are critical to our justice system. Nevertheless, in the past three decades, our Federal judges have been neglected. Since 1969, the salaries of Federal judges have declined by nearly 24 percent in inflation adjusted dollars. By comparison, in the same time period the salary of the average American worker has increased over 15 percent. Since 1993, when Congress last passed a comprehensive revision of Federal salaries, real judicial pay has declined about 10 percent. The drop in judicial pay is even more stark when compared to judges' peers in the legal community. In 1969, the salary of a Federal district court judge was about 20 percent higher than the salary of a top law school dean and about 30 percent higher than that of a senior law professor at a top law school. In contrast, today, top law school deans make twice as much as district court judges, and senior law professors at those schools make nearly 50 percent more. Today, partners at major law firms routinely make three, four or five times what Federal judges make. Furthermore, first year law school graduates at these law firms make more than experienced Federal judges. While judges are making less, they are also working more. In the same time period that judges pay has declined by nearly 24 percent, the caseload for district court judges has climbed by 58.4 percent and the caseload of Circuit Court judges has jumped 211.4 percent. While fairness alone would require a reasonable salary for judges, the growing pay disparity between judges and other members of the legal profession poses a real threat to the quality of our judiciary. In order to ensure that our judiciary can continue to attract--and-- keep top attorneys, it is imperative that judges' salaries be increased to at least make up for some of the loss in real pay that has taken place in the last 30 years. In 2003, the National Commission on the Public Service, also known as the Volcker Commission, concluded that ``the lag in judicial salaries has gone on too long, and the potential for the diminished quality in American jurisprudence is now too large.'' In a July 15, 2002 statement to the National Commission on the Public Service, the late Chief Justice Rehnquist said inadequate compensation seriously compromises the judicial independence fostered by life tenure. The prospect that low salaries might force judges to return to the private sector rather than stay on the bench risks affecting judicial performance. Chief Justice Rehnquist's views were echoed by new Chief Justice Roberts in his State of the Judiciary Address from earlier this year. Chief Justice Roberts said the following: If judges' salaries are too low, judges effectively serve for a term dictated by their financial position rather than for life. Figures gathered by the Administrative Office show that judges are leaving the bench in greater numbers now than ever before. In the 1960s, only a handful of district and appellate court judges retired or resigned; since 1990, 92 judges have left the bench. Of those, 21 left before reaching retirement age. Fifty-nine of them stepped down to enter the private practice of law. In the past five years alone, 37 judges have left the federal bench--nine of them in the last year. There will always be a substantial difference in pay between successful government and private sector lawyers. But if that difference remains too large, as it is today, the judiciary will over time cease to be made up of a diverse group of the Nation's very best lawyers. Instead, it will come to be staffed by a combination of the independently wealthy and those following a career path before becoming a judge different from the practicing bar at large. Such a development would dramatically alter the nature of the federal judiciary. Many of the judges that have left the bench in recent years cited financial considerations as a major factor in their decisions to leave the bench. In my home State of California, several Federal judges have gone on the record to say that they left the Federal bench because of financial pressures. Some of these judges have even taken jobs in the California State judiciary, since the State courts offer better salaries than the Federal bench. As a result of the linkage of judicial salaries with the salaries of Members of Congress, when Congress has voted to deny itself a cost-of- living adjustment, as it has in 5 of the last 12 years, it has simultaneously denied all Federal judges cost-of-living adjustments, as well. Consequently, the real pay of judges has declined. I am not suggesting that judges be paid as much as partners at law firms; however, they should receive a fair salary. The legislation that I introduce today, the Federal Judicial Fairness Act, provides a straightforward solution. First, the act terminates the linkage of congressional pay increase to judicial pay increases, so that Congress's decision to deny itself pay raises will not also place that burden on Federal judges. Second, the act increases the salaries of all Federal judges by 16.5 percent, in order to at least partially make up for the decline in real pay for judges over the last three decades. In 2003, both President Bush and Chief Justice Rehnquist agreed that a pay adjustment of at least 16.5 percent was needed. Finally, the act would provide Federal judges with annual cost-of- living adjustments based on the employee cost Index, an index already used by the Federal Government to help Federal salaries keep up with inflation. The cost of this salary increase would be only $41.3 million, a relatively small sum to safeguard the quality and independence of our judiciary. Our Federal judges make many sacrifices in serving our Nation and a cut in pay is one of these sacrifices. However, the disparity between judicial salaries and salaries in the rest of the legal profession has grown so wide that the quality of our judicial system may be endangered. It is time to provide these critical public servants with a fair salary that will guarantee the future health of the judiciary. I urge my colleagues to support this important legislation.