Dianne Feinstein

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.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to pay tribute to the Bay Area Council for Jewish Rescue and Renewal's Climate of Trust Program. The council's work in combating ethnic and religious hatred while strengthening tolerance and moderation in Russian society has made a great difference in the lives of all the program's participants. In 1998, a wave of anti-Semitic activity terrorized the Jewish population in a provincial town in northwest Russia. In response, the Bay Area Council established the Climate of Trust Program, a collaborative partnership between American and Russian police officers, local officials, human rights activists, and ethnic and religious community representatives dedicated to resolving conflicts peacefully and establishing an atmosphere of tolerance and mutual respect in Russia. It is fitting that the pilot program for the Climate of Trust began in one of the most diverse cities in the world, my hometown of San Francisco. In 2000, representatives of the San Francisco Police Department, the District Attorney's Office, the California Superior Court, and the Anti-Defamation League went to Russia to join their counterparts in a seminar on religious tolerance. The participants continued the dialogue when the Russian delegates traveled to San Francisco later that year. In total, seven of these exchanges have now taken place. During these meetings, attendees discuss a wide variety of issues including hate crime laws in the United States, how hate incidents are investigated, elements of a hate crime and its impact on the community, diversity in the police department, and community policing. These interactions culminated in the establishment of four permanent regional tolerance centers in Russia. These centers design and implement activities that promote tolerance and effective communication between law enforcement and the community. Organized and run by Russian police officers and community members alike, the centers sponsor hate crimes courses for police cadets to identify and handle ethnic or religious violence and produce a tolerance textbook for high school students. From its modest beginning in 1998, the Climate of Trust has grown into a far-reaching and effective program. Thousands of Russians, from small town police officers to federal government officials, have attended Climate of Trust seminars and workshops. The success of this program is due in no small part to the hard work of the Bay Area Council, USAID, and, most importantly, the team of American volunteers and their Russian counterparts who have worked together to develop new models for promoting tolerance and diversity. We have all witnessed the tragic consequences of ethnic hatred and religious intolerance. It is our solemn obligation to work together to ensure that tolerance and understanding prevails. I commend and congratulate the Climate of Trust Program of the Bay Area Council for Jewish Rescue and Renewal for their tireless efforts in these areas, and I look forward to working with them again in the future.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I am introducing legislation along with Senators Collins, Dorgan, Snowe, Bingaman, Chafee, Clinton, Schumer, Murray and Boxer to ensure that when a senior signs up for a Medicare prescription drug plan, the drugs covered by their plan cannot be removed or changed throughout that year. Under the legislation, if you sign up for a plan in January, the drugs covered by your plan will continue to be covered the rest of that year. If you become eligible for Medicare during the year, for instance you turn 65 in May, and you sign up for a plan, the drugs covered by your plan when you enroll in it will continue to be covered the rest of that year. At the end of the year, if a plan wants to change its coverage, it can do that. The bill does nothing to prevent plans from changing their drug coverage for the coming year. However, that can only happen at the end of the year, at the time all Medicare beneficiaries have the option to switch plans. Seniors deserve the peace of mind to know that the drug plan they enroll in will cover the drugs it says it will all year. Under current law, a prescription drug plan can change its formulary as many times as it wants throughout the year so long as it gives notice to its enrollees. However, seniors have no recourse other than going through a lengthy appeals process if their drug plan suddenly drops their medicines. At the end of that appeals process, there is still no guarantee that seniors will get their drugs. Under current law, they have to wait until the next open enrollment period which may be as much as nine months away. That is unacceptable. Seniors can't and shouldn't have to wait all year to obtain lifesaving and life sustaining drugs they thought would be covered by their drug plan. The bill allows a prescription drug plan to add drugs to its formulary--for instance in cases where a new drug is approved by the FDA or a generic alternative to a brand name drug becomes available. The bill also allows a prescription drug plan to remove a drug from its formulary if the FDA issues a clinical warning about the drug, if the FDA pulls a drug from the market like in the case of Vioxx, or if the drug has been determined to be ineffective. But, in those instances, the prescription drug plan must notify the HHS Secretary, affected enrollees, physicians, and pharmacies of the change. Seniors in California have an overwhelming array of prescription drug plan options. There are at least 110 drug plan options for Californians. It can take days, if not weeks to determine which plan is best based on your drug needs and health status. Unless this bill is approved, seniors have no guarantee that their drugs will be covered throughout the year. I think that is wrong. This legislation will change that. Some might argue why this bill is necessary now. We are one month into the new Medicare drug benefit and what we have witnessed throughout the Nation is widespread confusion. Seniors are being turned away at the pharmacy counters and they are being incorrectly asked to pay hundreds of dollars for their drugs. States are absorbing the costs to provide drugs for a Federal program. So far, California has spent more than $18 million of its own money. I support efforts to reimburse States fully for the drug costs they've absorbed as a result of implementation errors by this Administration and I support transitional relief for the so-called ``dual eligible'' Medicare beneficiaries whose transition from Medicaid to Medicare has been disastrous. The Administration contends that this legislation isn't necessary because plans can't change their formularies without notifying the Centers for Medicare and Medicaid Services (CMS) and enrollees first and that CMS won't allow plans to make changes to their formularies that hurt seniors. This ``just trust us'' argument being used by the Administration is anything but reassuring, especially given all the major program implementation problems it has caused due to poor planning and inadequate foresight. I believe seniors deserve more and they deserve the protections guaranteed under this legislation. We must act now to protect all Medicare beneficiaries from the type of ``bait and switch'' tactics like signing up for a plan thinking you were getting certain drugs only to find out down the road that those drugs were no longer covered. The bill is about parity for seniors. If seniors are prohibited from changing drug plans except during the annual open enrollment period, then they deserve to know that the plan they are locked in to is also locked in to covering the drugs it said it would. I urge my colleagues to support this legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I am introducing legislation along with Senators Collins, Dorgan, Snowe, Bingaman, Chafee, Clinton, Schumer, Murray and Boxer to ensure that when a senior signs up for a Medicare prescription drug plan, the drugs covered by their plan cannot be removed or changed throughout that year. Under the legislation, if you sign up for a plan in January, the drugs covered by your plan will continue to be covered the rest of that year. If you become eligible for Medicare during the year, for instance you turn 65 in May, and you sign up for a plan, the drugs covered by your plan when you enroll in it will continue to be covered the rest of that year. At the end of the year, if a plan wants to change its coverage, it can do that. The bill does nothing to prevent plans from changing their drug coverage for the coming year. However, that can only happen at the end of the year, at the time all Medicare beneficiaries have the option to switch plans. Seniors deserve the peace of mind to know that the drug plan they enroll in will cover the drugs it says it will all year. Under current law, a prescription drug plan can change its formulary as many times as it wants throughout the year so long as it gives notice to its enrollees. However, seniors have no recourse other than going through a lengthy appeals process if their drug plan suddenly drops their medicines. At the end of that appeals process, there is still no guarantee that seniors will get their drugs. Under current law, they have to wait until the next open enrollment period which may be as much as nine months away. That is unacceptable. Seniors can't and shouldn't have to wait all year to obtain lifesaving and life sustaining drugs they thought would be covered by their drug plan. The bill allows a prescription drug plan to add drugs to its formulary--for instance in cases where a new drug is approved by the FDA or a generic alternative to a brand name drug becomes available. The bill also allows a prescription drug plan to remove a drug from its formulary if the FDA issues a clinical warning about the drug, if the FDA pulls a drug from the market like in the case of Vioxx, or if the drug has been determined to be ineffective. But, in those instances, the prescription drug plan must notify the HHS Secretary, affected enrollees, physicians, and pharmacies of the change. Seniors in California have an overwhelming array of prescription drug plan options. There are at least 110 drug plan options for Californians. It can take days, if not weeks to determine which plan is best based on your drug needs and health status. Unless this bill is approved, seniors have no guarantee that their drugs will be covered throughout the year. I think that is wrong. This legislation will change that. Some might argue why this bill is necessary now. We are one month into the new Medicare drug benefit and what we have witnessed throughout the Nation is widespread confusion. Seniors are being turned away at the pharmacy counters and they are being incorrectly asked to pay hundreds of dollars for their drugs. States are absorbing the costs to provide drugs for a Federal program. So far, California has spent more than $18 million of its own money. I support efforts to reimburse States fully for the drug costs they've absorbed as a result of implementation errors by this Administration and I support transitional relief for the so-called ``dual eligible'' Medicare beneficiaries whose transition from Medicaid to Medicare has been disastrous. The Administration contends that this legislation isn't necessary because plans can't change their formularies without notifying the Centers for Medicare and Medicaid Services (CMS) and enrollees first and that CMS won't allow plans to make changes to their formularies that hurt seniors. This ``just trust us'' argument being used by the Administration is anything but reassuring, especially given all the major program implementation problems it has caused due to poor planning and inadequate foresight. I believe seniors deserve more and they deserve the protections guaranteed under this legislation. We must act now to protect all Medicare beneficiaries from the type of ``bait and switch'' tactics like signing up for a plan thinking you were getting certain drugs only to find out down the road that those drugs were no longer covered. The bill is about parity for seniors. If seniors are prohibited from changing drug plans except during the annual open enrollment period, then they deserve to know that the plan they are locked in to is also locked in to covering the drugs it said it would. I urge my colleagues to support this legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to speak on the asbestos bill and to indicate my support for the cloture motion which will be voted on at 6 o'clock this afternoon. For over 15 years now, believe it or not, the U.S. Supreme Court has repeatedly urged Congress to create a solution to this asbestos crisis. In 1997, in a case called Amchen Products v. Windsor, Justice Ginsburg wrote this: The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure. This is exactly what we are trying to do in this effort. It is true it is not easy to do. It is true it has taken many years of hearings in the Judiciary Committee, and it is true efforts to draft this legislation have been ongoing for many years, but I would like to take this opportunity to commend the chairman and ranking member of our committee, Senator Specter and Senator Leahy, for their tireless efforts to develop a true bipartisan compromise, and I know it hasn't been easy. Before discussing the specifics of this legislation, I think it is important to remember what has brought us here and why so many of us have spent hundreds of hours working through the complex issues in trying to develop a no-fault administrative solution. As has been stated, the pivotal question before this body is, Will a victim be better off in a trust fund, or will they be better off in the tort system? I believe that overall a victim will be better off in this trust fund. Up to this point, more than 70 American companies have filed for bankruptcy caused by asbestos liability. This has cost the American economy up to 60,000 jobs. Each displaced worker from a bankrupt company will lose on average an estimated $25,000 to $50,000 in wages over his or her career because of periods of unemployment and the likelihood of having to take a new job paying a lower salary. This impact is not limited to workers who lose their jobs. For the workers who are able to keep their jobs at these companies, they can expect an average 25-percent reduction in the value of their pensions. And for every 10 jobs lost to an asbestos bankruptcy, a community will lose 8 additional jobs. At least four companies headquartered in my home State of California have been bankrupted from asbestos lawsuits. Additionally, 41 companies with current or former operations in California have been sued or are currently facing lawsuits. They include: Allwood Door Company; Ashland; Atlas Corporation; Bechtel; Bethlehem Steel; California Portland Cement Company; Celotex; Dow Chemical; Exxon Mobil; Federal Mogul; Flintkote; Gencorp; Georgia Pacific; Goodrich Aerospace; Hill Brothers Chemical Company; Honeywell; Jacuzzi Brands; JM A/C Pipe Corporation; Kaiser Cement; Kelly Moore Paint; Metalclad Insulation; National Gypsum; National Steel and Shipbuilding Company; Norton and Sons of California; Occidental Petroleum; Owens-Illinois California Container; Owens Corning Fiberglas; Pacific Gas and Electric; Pittsburgh Corning; Plant Insulation Company; Polyone; Raymark Industries; Reinhold Industries; RPM; The Scotts Company; Southern California Edison Company; Todd Shipyards; Tyler Pipe Industries; Walter Industries; Unocal; U.S. Gypsum; and Viacom. One of those companies, Celotex, had three plants and two regional sales offices in California. In 1987, Celotex employed 325 people there, with a payroll of $7 million. They were forced into bankruptcy and today they operate in the United Kingdom. This is one impact of what has been happening. According to a study done by the RAND Institute for Civil Justice, in 1980, 300 companies were being sued for asbestos claims. This grew so much that by 2002, 8,400 companies had been named as defendants. RAND also concluded that litigation has spread beyond the asbestos and building products industries to the point that companies now being sued cover 75 out of 83 different types of industries in the United States. And, just through 2002, $70 billion had been paid out to 730,000 personal injury claims. So again, the question is whether a victim is better off in a no- fault trust where they automatically recover if they meet the criteria or in the tort system with high transaction costs that often eat up 50 to 60 percent of a judgment. It is true that bankruptcies have tragic consequences, not just for the businesses, but also for their employees who lose their jobs, lose their savings, and for the victims whose settlements are frequently reduced even more by bankruptcy trusts until they are receiving pennies on the dollar. I think the most startling and most egregious example of the asbestos tragedy is what occurred in Libby, MT. Candidly, this is what put it on my radar screen big time. This small community has been devastated because of the callous and potentially criminal actions of one company, W.R. Grace. The asbestos found in Libby, MT, tremolite asbestos, has demonstrated an unusually high level of toxicity, as compared with chrysotile asbestos. Diseases contracted from tremolite asbestos are unique and they are highly progressive, which means they move quickly. So far 192 residents from this small community have died and 1,400 are suffering from asbestos-related diseases. In addition, W.R. Grace not only sent its workers into the earth to mine asbestos without proper protection, it also pumped asbestos out of its factory and into the community of Libby. W.R. Grace provided asbestos materials to high schools and parks. It even put out piles for children to play in. For decades, there was an unprecedented 24-hour- per-day contamination of this community. Based on this and other actions, a Federal grand jury in February of last year indicted W.R. Grace on multiple criminal counts. The indictment charges that W.R. Grace was aware of several studies that demonstrated the dangers of asbestos exposure and concealed this information from the people of Libby and from the Environmental Protection Agency. The prosecutor is quoted in the press as saying W.R. Grace's treatment of workers and residents is ``a human and environmental tragedy.'' Sadly, while the situation in Libby is extraordinarily unique and our legislation recognizes this, the harm caused by asbestos is far reaching. In California, we have had shipments of asbestos from Libby in 35 locations. Our shipyards became hotspots for asbestos-related diseases because the shipping industry used asbestos to insulate boilers, steam pipes, hot water pipes, and incinerators. In fact, according to the data compiled from the National Center for Health Statistics, between 1979 and 2002, 4,618 Californians died because of asbestos-related diseases. Statistics do not adequately tell the full story of this tragedy. The day after Father's Day in 2003, Alan Reinstein of Redondo Beach, CA, first learned about the devastating effect asbestos can have. After months of ineffective and inaccurate testing to diagnose his health problems that Mr. Reinstein was experiencing in his lungs, doctors finally determined that he was suffering from mesothelioma. Mesothelioma is a debilitating and aggressive form of cancer that has been directly linked to asbestos exposure. After learning the correct diagnosis, Mr. Reinstein had to have major surgery to remove his left lung, his diaphragm, and the lining around his heart. The surgery to save his life was so extensive it nearly killed him. He and his wife Linda today face his continued health problems from mesothelioma. As a matter of fact, he is a very rare case and the only person I know of who has survived for more than 1 year with mesothelioma. Billy Speicher from Ontario, CA, spoke of his experience with mesothelioma before the Judiciary Committee around this time last year. He discussed how he was exposed to asbestos while serving as an aircraft mechanic for the Marine Corps in the late 1950s and again as a pipefitter from 1965 to 1999. He stated that in his jobs: Asbestos was everywhere. It was all over me and all over everyone who worked near me . . . At first the doctors I was seeing for two years kept telling me I had asthma--even though I had CAT scans that showed my lungs were scarred. But finally the fluid built up so much in my lungs they realized I had mesothelioma. Now I'm living with a lot of pain--and I can barely get my breath. [I] can't hardly sleep at night either. You know that mesothelioma is a death sentence. These stories illustrate the personal tragedies asbestos has caused. Unfortunately, these two men are not alone. So the question is what to do, and many people think: Just leave it up to the tort system. I looked at that. But then you also hear cases of people who receive pennies on their judgment, and the question arises, Is it not possible to protect victims and not bankrupt companies and have a no-fault system whereby medical people can make the judgments and people can be paid a fair sum? That is what this legislation is all about. Compromises have been made. What I have tried to do, on the Judiciary Committee, is ensure that there are strong provisions in place to protect individuals who were struck with terminal asbestos-related diseases. There are some important provisions that I would like to highlight. The bill we are now considering contains higher awards values for victims than the version that was before the Senate in the 108th Congress. A broader definition of asbestos has been included to address the potential threat of naturally occurring asbestos that has been discovered in California and other parts of the country. During the startup period, the bill incorporates a process so mesothelioma victims and other terminally ill victims will have their claims resolved and paid within 9 months or else they will be allowed to take their case to court. So either they get prompt payment or they can go to court. I have insisted on that. Thanks to Senator Specter and Senator Leahy, that is in the bill. The committee also adopted an amendment that provides accelerated payments for terminally ill victims so they can get their awards quickly, once the fund becomes operational. The bill protects cases that have a verdict, final judgment, or final order issued by a trial court and cases in trial or those that have an enforceable settlement so that victims who have had their claims resolved are not suddenly uprooted. And this legislation prevents subrogation of awards, ensuring that victims' awards cannot be reduced. As everybody has said, this bill is not perfect. However, given the current state, I think it is an important solution to help provide relief to both victims and businesses. My understanding is that the chairman will have a managers' package that will further clarify and make improvements to the bill as well. I urge my colleagues to look carefully at that managers' package because many improvements have in fact been made. During this huge undertaking, there have been many concerns raised and criticisms levied against the bill. At every step, Senators Specter and Leahy have attempted to address any flaws or ambiguities. This has not been a ``take it or leave it'' piece of legislation. I know of no chairman or ranking member who have been more receptive to looking at changes and evaluating them. Several concerns have been expressed regarding how quickly money will come into the fund and whether the trust fund will be able to process the immediate flood of claims that are currently pending in court. The so-called upfront funding has been increased throughout the process, so now the fund will have $42 billion in the first 5 years to pay claims. In addition, the 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. The bill also provides the administrator of the trust fund with borrowing authority, so if the upfront funding of $42 billion proves to be inadequate, he or she may borrow funds to cover any shortfall. Next, the bill includes a streamlined process to settle claims of terminally ill individuals immediately upon enactment of the legislation. This provision ensures that terminally ill individuals will have their claims processed quickly, and it should resolve some of the most pressing claims before the trust is up and running so there would not be an overwhelming flood of claims filed with the trust on day one. Finally, 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. Another concern that has been expressed, and I want to address it, is that the legislation will harm small businesses by requiring payments to the fund that are well beyond the means of these small businesses. Under this bill, small businesses, as defined under section 3 of the Small Business Act, are explicitly exempt from having to contribute to the fund. Let me repeat that. Under this bill, small businesses, as defined under section 3 of the Small Business Act, are explicitly exempt from having to contribute to the fund. At the same time, these companies will receive the protections provided under the legislation. They don't have to contribute, and they will receive the protections provided under the legislation--meaning they cannot be sued. For example, manufacturing companies that have fewer than 500 employees will qualify as a small business. Some categories of manufacturing, including chemical manufacturing, will qualify if they have fewer than 750 employees. It is also important to remember that companies are only required to pay if they have already expended money on asbestos claims. They only pay if they have already expended money on asbestos claims. Smaller companies that had not incurred asbestos liability-related costs of $1 million or more before December 31, 2002, are exempt from having to contribute to the fund. In addition, for those companies which are not exempt from having to contribute to the fund, the bill tiers companies by size and amount of liability. The current tort system provides no protections for small businesses and allows any company of any size, no matter how small, to be sued into bankruptcy. Another argument made against the bill is that there is inadequate funding to cover all future asbestos claims. Trying to project how many individuals will make claims is clearly an inexact science--if you can each call it a ``science.'' Even the Manville Trust, an almost 20-year- old trust that was created after the bankruptcy filing of the Johns- Manville Corporation, has had to alter its projections time and time again. Since we do not know how many people have been exposed to asbestos and, of those, who will develop a disease, we must rely on protections based on sound calculations and real-world experiences of other trust funds. The size of the fund is based on the strongest statistical data and economic models available. A leading actuary with Tillinghast-Towers Perrin testified before the committee on June 4, 2003, that ``$108 billion appears to be more than adequate,'' while RAND Corporation estimates the remaining future cost of asbestos- related loss and expense at $130 billion. By using a no-fault administrative system, the fund will significantly reduce the substantial transaction costs of the current tort system, costs that most experts agree consume more than half of the total amount being expended. Of the $130 billion of future asbestos-related costs, it is estimated--and listen to this carefully-- it is estimated that approximately $28 billion, or 21.5 percent, is attributable to defendant costs and approximately $41 billion, or 40 percent, will go to plaintiffs' attorneys. So there you have 61.5 percent going to lawyers. I understand how lawyers feel, but 61.5 percent of the total amount going to lawyers means that amount of money is not going to victims. Because of these transaction costs, if we continue in the current system, less than 40 percent of the $130 billion estimate of future asbestos-related loss and expense--less than 40 percent will be paid to asbestos victims. This legislation provides for $140 billion to come into the fund over 30 years without the transaction costs of the legal system, allowing for more money to go to victims. The bill, as amended, obligates defendant and insurer participants to contribute $136 billion to the fund, and at least $4 billion more would be contributed from confirmed bankruptcy and other asbestos compensation trust funds. As an added protection against the risk of insufficient funding, the legislation gives the administrator of the fund the authority to borrow from commercial and government lending institutions. Finally, 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, carefully thought out and eagerly debated, this legislation ensures that no one is left without an avenue for recourse. Another argument opponents of the bill make is that victims will be forced to wait years before they receive compensation. While California has a system to provide expedited trials when a victim is terminally ill, victims in most States across the country are forced to wait years before they can have their cases brought before a judge or a jury. And often, even after the case is heard and decided, or a settlement is reached, payments can still be stretched out for several months or even years. Due to the long delays in other States, I have fought throughout this process to ensure that the fund follows California's example and resolves claims of terminal individuals as quickly as possible. An amendment was adopted in committee that ensures once the trust fund becomes operational, individuals who have mesothelioma are paid in one lump sum within 30 days after their claims are approved, or within 6 months after their claims are filed, whichever is shorter. Let me repeat that because that is important. Mesothelioma victims are paid in one lump sum within 30 days after their claims are approved, or within 6 months after their claims are filed, whichever is shorter. What we are trying to do is prevent the delay in payment to someone who is terminally ill. Other terminally ill claimants, individuals who have been diagnosed with less than a year to live, must be paid within 6 months after their claims are approved, or 1 year after their claims are filed, whichever is shorter. During the committee consideration of the bill, we also adopted an amendment to speed up payments to terminally ill individuals while the administrator is attempting to get the fund up and running. This amendment provides for a process whereby terminally ill victims can receive a settlement directly from the administrator or claims facility even before the fund is operational. So the first people to be served before the fund is operational are terminally ill victims. If, for whatever reason, the administrator or claims facility is unable to process or pay these claims during the startup period, the companies or the insurers will be required to make a settlement offer directly to the individual. We cover that possibility as well. If the offer is rejected because it is less than the individual would have received under the fund--in other words, the company makes an offer but it is a low offer--the companies have 20 days to make a new offer or else they are penalized. Under these settlement agreements, claims are to be paid to mesothelioma victims, with 50 percent of the claim to be paid within 30 days after the settlement is accepted, and the other 50 percent within 6 months after the settlement is accepted. Other terminal victims are to be paid 50 percent of the claim to be paid within 6 months after settlement is accepted, and 50 percent within 1 year after settlement is accepted. If after 9 months, as I said, the terminally ill individual has still not had their claim processed or fully paid, then they may return to the court. This has been hard fought for, and this is the fail-safe in this legislation. I think it is fair to say that the companies would like to avoid this. I don't know if Senator Specter would agree with that, but I found that to be true. And, therefore, this ability to go back into court if you are terminally ill and you are not paid right away is an added protection that you will get paid. Finally, I want to address the argument that this bill creates a new entitlement program and will cost the people millions of dollars. This is simply untrue. 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 authorizing law are met,'' and they are not subject to discretionary appropriations from Congress. Entitlement payments are legal obligations of the Federal Government, and beneficiaries can sue to compel full payment. That is not the case here. The fund created by this legislation will be privately funded. The money collected for the fund comes from businesses and insurance companies--not from the U.S. Treasury. 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 nothing in the act shall be construed to create any obligation of funding from the United States or to require the United States to satisfy any claims if the amounts in the fund are inadequate. If anyone doubts that, they can look up section 406(b) of the bill. Some have argued that the Government's liability is derived from the provision that allows borrowing from the Federal financing bank. In response to an inquiry from former Senator Don Nickles on a previous version of this bill, the GAO stated that ``[t]o ensure that the government incurs no liability for repayment of borrowing under the act, Congress may wish to explicitly state that repayment of borrowing is limited solely to amounts available in the fund.'' That is what Senator Specter did. The bill expressly provides that ``[r]epayment 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 United States Government, including any borrowing authorized . . . '' With these explicit statements throughout the bill, it is abundantly clear that this legislation would not be a burden on the U.S. Treasury. In conclusion, from the beginning it has been clear that creating a national asbestos trust fund is an extraordinarily complex undertaking. This has been a compromise effort and there are numerous issues where competing interest groups have come together, such as the creation of a no-fault administrative system, the equitable allocation of contributions, the establishment of reasonable medical standards, the resolution of pending claims and settlements, fair compensation values, and transparency of the system to both victim and corporate stakeholders alike. That is very important. However, I must say it often seemed that with every solution and compromise, more concerns and problems would arise. In the end, there are some provisions I think all sides would like to change, but compared to the shortfalls in the current system, this is a strong solution and a good compromise. I hope Members will vote to close off debate and that we will be able to pass this important piece of legislation. I thank the Chair. I yield the floor.

Mrs. FEINSTEIN. I thank the Senator very much.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I would like to offer a few words in observance of the passing of U.S. District Judge William Matthew Byrne, Jr., a great legal mind and ambassador of justice who nobly served our country for over 30 years on the Federal bench. I extend my deepest sympathy to the family of Judge Byrne, his many friends and colleagues, and the members of the legal community everywhere who had come to know his talent and charm. A giant in his field, Judge Byrne tirelessly traveled the globe teaching and promoting the rule of law. His efforts touched countless individuals and left an immeasurable impact on legal systems on an international scale. After honorably serving our Nation in the U.S. Air Force and amassing an unparalleled 96 percent conviction record as a U.S. attorney in Los Angeles, Judge Byrne was named head of the Commission on Campus Unrest by President Nixon. As head of the Commission, Judge Byrne sought to bridge the growing cultural divide that had developed as a result of the war in Vietnam. The Commission's report revealed Judge Byrne's unassailable judgment and great courage. Bravely stepping into the middle of the fray, he found fault with students and police alike. Judge Byrne's work on the Commission played an important role in reuniting the country around our shared values. His contribution was recognized in 1971, when he was confirmed to a Federal judgeship at the age of 40, making him at that time the youngest man in America's history to rise to this prominent position. Although he dealt with many high-profile cases, Judge Byrne was most remembered for his courageous handling of the trial of Daniel Ellsberg, the man charged with releasing classified documents in the infamous Pentagon Papers case. The Government, he ruled, did not have a case, and a mistrial was declared. In a time of rampant government scandal and deep-seated corruption at the highest levels of power, Judge Byrne courageously stood up for his convictions, sending the powerful message that nobody was above the law. ``The totality of the circumstances in this case,'' Judge Byrne ruled, ``offend a sense of justice.'' It is for this sense of justice that Judge Byrne will always be remembered. Throughout his long and remarkable career, Judge Byrne distinguished himself as a man of sound jurisprudence, honor, and integrity. His lasting legacy of sensible legal adjudication serves as an inspiration to all Americans. Once again, my heart goes out to Judge Byrne's family and all those who knew him. He will truly be missed.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I offer today private relief legislation to provide lawful permanent residence status to Carmen Shahrzad Kulcsar, a 15-year-old Australian national currently living with her aunt and uncle in San Marcos, CA. I have decided to offer private relief legislation on Carmen's behalf because I believe that removal from the United States would not only be tragically unfair to her, but also to her aunt and uncle who have taken Carmen into their home and treated her like a daughter after the tragic events that brought her to America. Furthermore, Carmen's removal could put her aunt's, her uncle's, and her own life in grave danger. Carmen's parents separated due to physical abuse, alcohol abuse, and allegations of affairs. In 1992, at the young age of two, Carmen witnessed her father shoot her mother point blank range in the head. Her father--David Kulcsar--was convicted of murder and sentenced to 12 to 16 years in prison. Fortunately for Carmen, her American aunt Manieh Varner was granted sole guardianship and custody of her niece by an Australian court. Carmen entered the United States on a temporary Visitor's Visa and has resided here for the past 13 years with her aunt and uncle. Carmen is a model student at her high school. She takes honor classes and has worked hard to earn a cumulative grade point average of 3.5. Her report card has multiple comments regarding her outstanding citizenship and as being a pleasure to have in class. Carmen is a member of the competitive Academic Decathlon Team. Her future can be a bright one and it is unlikely that she will become a burden on the State or Federal Government. Carmen's aunt has always wanted to adopt her niece and begin the path to legal residency. However, there has always been one problem. Carmen's father never wanted Carmen to go with her aunt and made repeated threats for revenge against Mrs. Varner. Adopting Carmen requires notifying Mr. Kulcsar about the adoption and Mrs. Varner believed always, as she does now, that doing so would put her and Carmen's life in risk. Mrs. Varner cannot pursue adoption now because time constraints prevent the process from being completed before Carmen's 16th birthday; thus, adoption would have no bearing for immigration purposes. Mr. and Mrs. Varner have done their best to try and create a life for Carmen that would otherwise have been impossible for her in Australia. Both U.S. citizens, Mr. Varner is a high school teacher while Mrs. Varner is employed by the State of California's Department of Transportation. Along with a daughter of their own, they have made the best possible situation of a horrible tragedy. Unfortunately, if this private relief bill is not approved, the choices available to Carmen are grim. Clearly it would be impossible for her to go back to Australia. The only memory she has of that country is the memory of her mother's murder at the hands of her father. The only family in Australia is that of her unstable, recently released from prison father. She would be forced to live illegally in the United States through no fault of her own. America is the only land she has ever known. It is her home. Given these extraordinary and unique facts, I offer this private relief bill on behalf of Carmen Shahrzad Kulcsar. We have the opportunity to make a just and fitting solution for this wonderful family. Therefore, I ask my colleagues to support this private relief bill. I ask unanimous consent that the text of the legislation be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I offer today private relief legislation to provide lawful permanent residence status to Carmen Shahrzad Kulcsar, a 15-year-old Australian national currently living with her aunt and uncle in San Marcos, CA. I have decided to offer private relief legislation on Carmen's behalf because I believe that removal from the United States would not only be tragically unfair to her, but also to her aunt and uncle who have taken Carmen into their home and treated her like a daughter after the tragic events that brought her to America. Furthermore, Carmen's removal could put her aunt's, her uncle's, and her own life in grave danger. Carmen's parents separated due to physical abuse, alcohol abuse, and allegations of affairs. In 1992, at the young age of two, Carmen witnessed her father shoot her mother point blank range in the head. Her father--David Kulcsar--was convicted of murder and sentenced to 12 to 16 years in prison. Fortunately for Carmen, her American aunt Manieh Varner was granted sole guardianship and custody of her niece by an Australian court. Carmen entered the United States on a temporary Visitor's Visa and has resided here for the past 13 years with her aunt and uncle. Carmen is a model student at her high school. She takes honor classes and has worked hard to earn a cumulative grade point average of 3.5. Her report card has multiple comments regarding her outstanding citizenship and as being a pleasure to have in class. Carmen is a member of the competitive Academic Decathlon Team. Her future can be a bright one and it is unlikely that she will become a burden on the State or Federal Government. Carmen's aunt has always wanted to adopt her niece and begin the path to legal residency. However, there has always been one problem. Carmen's father never wanted Carmen to go with her aunt and made repeated threats for revenge against Mrs. Varner. Adopting Carmen requires notifying Mr. Kulcsar about the adoption and Mrs. Varner believed always, as she does now, that doing so would put her and Carmen's life in risk. Mrs. Varner cannot pursue adoption now because time constraints prevent the process from being completed before Carmen's 16th birthday; thus, adoption would have no bearing for immigration purposes. Mr. and Mrs. Varner have done their best to try and create a life for Carmen that would otherwise have been impossible for her in Australia. Both U.S. citizens, Mr. Varner is a high school teacher while Mrs. Varner is employed by the State of California's Department of Transportation. Along with a daughter of their own, they have made the best possible situation of a horrible tragedy. Unfortunately, if this private relief bill is not approved, the choices available to Carmen are grim. Clearly it would be impossible for her to go back to Australia. The only memory she has of that country is the memory of her mother's murder at the hands of her father. The only family in Australia is that of her unstable, recently released from prison father. She would be forced to live illegally in the United States through no fault of her own. America is the only land she has ever known. It is her home. Given these extraordinary and unique facts, I offer this private relief bill on behalf of Carmen Shahrzad Kulcsar. We have the opportunity to make a just and fitting solution for this wonderful family. Therefore, I ask my colleagues to support this private relief bill. I ask unanimous consent that the text of the legislation be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I am introducing legislation today that reforms and improves the regulation of lobbying and raises congressional ethics standards. There is a perception in America that members of Congress care less about the public interest and more about advancing their own personal and financial interests. We need to make fundamental changes in how we permit lobbyists to influence legislation, hearings, appropriations, and our general oversight of the Executive Branch. The Democratic leadership bill to reform lobbying rules, the Honest Leadership and Open Government Act, which I am cosponsoring, contains sensible enough reforms. Rather than standing pat, the measure I am introducing today is tougher medicine. I believe it will go a long way to changing the view of constituents that Congress is corrupt and ethically challenged. The measure: institutes a Congress-wide two year ban on Senators, House members and their staffs lobbying Capitol Hill; takes a zero tolerance approach to lobbyist offered sports and entertainment tickets and meals; prohibits any lobbyist sponsored, or paid for, travel; and eliminates the option of registered lobbyists working in any capacity for a Senator's or House Member's election campaigns or fundraising operations. A New York Times poll this past Friday sums up, in stark terms, public perceptions of Congress. When asked ``Do you think that recent reports that lobbyists may have bribed members of Congress are isolated incidents or is this the way things work in Congress'', 77 percent of the respondents said bribing is the ``way things work'' in Congress. The survey indicates a 61 percent disapproval rating of Congress as well. One poll participant, Mr. Donald Pertius from Arkansas, commented that ``It seems like the integrity of Congress Members in the last few years has just gone to pot.'' A key step, that will go a long way to clearing up the perception that individuals leaving the Hill immediately trade on their contacts and friendships, is a two year Congress-wide ban on lobbying for Members and staff once they leave their jobs. Members and staff make a beeline for K Street when they leave the Hill. According to the New York Times, 50 percent of the 36 Senators retired since 1998 and 40 percent of the 162 House Members have signed up as lobbyists. The Democratic leadership bill, and from what I understand the Republican measure being drafted, restricts staff from lobbying their former offices. That is good but we need to go further. We need to change the minds of people across America that working in the Senate or House is about a commitment to public service--not a revolving door to cashing in as a private sector lobbyist. On another front, numerous Senate and House campaigns have registered lobbyists as Treasurers for Members' PACs and in other key finance roles. It's another backdoor way for a lobbyist to insinuate his or her way into a politician's inner circle. Published reports confirm that 71 lawmakers now list lobbyists as treasurers to their PACs or their campaign committees, nearly a fivefold increase since 1998. We need to make a clean break from this kind of collaboration that's fast on the rise. The legislation I am introducing prohibits the formation of any political committee by a politician if a person registered as a lobbyist is formally affiliated with such an entity. Alex Knott at the Center for Public Integrity stated in the Wall Street Journal last week that ``By putting a lobbyist in charge of your political operations, you are conflicted from the start.'' He's absolutely correct. Senators, House Members, their staffs and lobbyists alike ought to brace themselves for major change. The old rules and regulations that govern Washington are due for overhaul, and I believe that the two comprehensive leadership bills will represent a good start to that process. I hope my colleagues are receptive to even more stringent efforts, in the form of this legislation I am introducing today, and look forward to the full Senate debate on this issue in the coming months. I ask unanimous consent that the text of the legislation be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I am introducing legislation today that reforms and improves the regulation of lobbying and raises congressional ethics standards. There is a perception in America that members of Congress care less about the public interest and more about advancing their own personal and financial interests. We need to make fundamental changes in how we permit lobbyists to influence legislation, hearings, appropriations, and our general oversight of the Executive Branch. The Democratic leadership bill to reform lobbying rules, the Honest Leadership and Open Government Act, which I am cosponsoring, contains sensible enough reforms. Rather than standing pat, the measure I am introducing today is tougher medicine. I believe it will go a long way to changing the view of constituents that Congress is corrupt and ethically challenged. The measure: institutes a Congress-wide two year ban on Senators, House members and their staffs lobbying Capitol Hill; takes a zero tolerance approach to lobbyist offered sports and entertainment tickets and meals; prohibits any lobbyist sponsored, or paid for, travel; and eliminates the option of registered lobbyists working in any capacity for a Senator's or House Member's election campaigns or fundraising operations. A New York Times poll this past Friday sums up, in stark terms, public perceptions of Congress. When asked ``Do you think that recent reports that lobbyists may have bribed members of Congress are isolated incidents or is this the way things work in Congress'', 77 percent of the respondents said bribing is the ``way things work'' in Congress. The survey indicates a 61 percent disapproval rating of Congress as well. One poll participant, Mr. Donald Pertius from Arkansas, commented that ``It seems like the integrity of Congress Members in the last few years has just gone to pot.'' A key step, that will go a long way to clearing up the perception that individuals leaving the Hill immediately trade on their contacts and friendships, is a two year Congress-wide ban on lobbying for Members and staff once they leave their jobs. Members and staff make a beeline for K Street when they leave the Hill. According to the New York Times, 50 percent of the 36 Senators retired since 1998 and 40 percent of the 162 House Members have signed up as lobbyists. The Democratic leadership bill, and from what I understand the Republican measure being drafted, restricts staff from lobbying their former offices. That is good but we need to go further. We need to change the minds of people across America that working in the Senate or House is about a commitment to public service--not a revolving door to cashing in as a private sector lobbyist. On another front, numerous Senate and House campaigns have registered lobbyists as Treasurers for Members' PACs and in other key finance roles. It's another backdoor way for a lobbyist to insinuate his or her way into a politician's inner circle. Published reports confirm that 71 lawmakers now list lobbyists as treasurers to their PACs or their campaign committees, nearly a fivefold increase since 1998. We need to make a clean break from this kind of collaboration that's fast on the rise. The legislation I am introducing prohibits the formation of any political committee by a politician if a person registered as a lobbyist is formally affiliated with such an entity. Alex Knott at the Center for Public Integrity stated in the Wall Street Journal last week that ``By putting a lobbyist in charge of your political operations, you are conflicted from the start.'' He's absolutely correct. Senators, House Members, their staffs and lobbyists alike ought to brace themselves for major change. The old rules and regulations that govern Washington are due for overhaul, and I believe that the two comprehensive leadership bills will represent a good start to that process. I hope my colleagues are receptive to even more stringent efforts, in the form of this legislation I am introducing today, and look forward to the full Senate debate on this issue in the coming months. I ask unanimous consent that the text of the legislation be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to pay tribute to the first lady of the civil rights movement--Coretta Scott King. Mrs. King, the widow of the late Reverend Martin Luther King, Jr., dedicated her life to sharing Dr. King's quest for social justice and peace. Although one cannot say enough about her lifelong commitment to the cause of racial and economic equality, it is important to also note that Coretta Scott King was a visionary for women's rights on her own merit. She was the first woman to deliver the Class Day address at Harvard, and the first woman to preach at a statutory service at St. Paul's Cathedral in London. And Mrs. King served as a liaison to international peace and justice organizations even before Dr. King took a public stand in 1967 against United States intervention in the Vietnam war. As we mourn the passing of Coretta Scott King, we are once again reminded of her quiet and resolute compassion for others. As she once remarked, and continued to demonstrate throughout her long life, Dr. King's dream was equally hers as well. ``I didn't learn my commitment from Martin. We just converged at a certain time.'' Together, their fearless commitment to the civil rights movement shaped and inspired the revolutionary social changes in the United States over the last half-century. Rev. Martin Luther King, Jr., and Coretta Scott King were first vaulted to the national stage during the Montgomery bus boycott. Led by Dr. King, the 1955 boycott lasted nearly 13 months and truly ignited the Nation's civil rights movement. The boycott led to the Supreme Court questioning the legality of the Jim Crow law that mandated the discrimination of African-Americans on the public bus system. And on November 13, 1956, in the landmark case Browder v. Gayle, the Supreme Court banned segregation on buses. It was truly a remarkable victory for the cause of freedom and equality. Throughout the turbulent decades of the 1950's and 60's, Dr. King's vision helped the Nation form a new and better understanding of itself, one that celebrates its diverse nature and strengthens its commitment to the principles of equality and justice. Yet one cannot simply overlook the passion and commitment of Mrs. King as her own individual. Throughout her long life, Mrs. King served as an inspirational presence around the world for the values of equality and peace. Coretta Scott was born April 27, 1927, the middle of three children born to Obadiah and Bernice Scott. She grew up in the two-room house her father built on land that had been owned by the family for three generations. Her exposure to the injustices of segregation were formed early on, as she walked to her one-room school house each day, watching buses full of white children kick up dust as they passed. During high school, Mrs. King excelled academically and demonstrated a great talent for music. She attended Antioch College in Yellow Springs, OH, where 2 years earlier her older sister, Edythe, had become the first black to enroll. At Antioch, she studied education and music. In 1953, the young Coretta Scott was preparing for a career in music at the New England Conservatory of Music in Boston, when she met a young graduate student in philosophy. A year later she and Dr. King, then a young minister from a prominent Atlanta family, were married. During Dr. King's career, Mrs. King mostly shied away from the prominent spotlight of her husband, balancing motherhood and movement work. She devoted most of her time to raising their four children: Yolanda Denise, born in 1955, Martin Luther III, born in 1957, Dexter Scott, born in 1961, and Bernice Albertine, born in 1963. But she also gained recognition for the ``Freedom Concerts'' she organized, where she lectured, read poetry and sang to raise awareness of and money for the burgeoning civil rights movement. Upon the tragic assassination of Rev. Martin Luther King, Jr., on April 4, 1968, Mrs. King bravely took up the mantle of the civil rights cause. Even before her husband was buried, she marched at the head of the garbage workers he had gone to Memphis to champion. Over the next few decades, Coretta Scott King gained nationwide interest and admiration for her efforts to establish a national holiday in honor of her husband. By an act of Congress, the first national observance of the holiday took place in 1986. Dr. King's birthday is now marked by annual celebrations in over 100 countries. During the 1970s, Mrs. King continued to work on behalf of the cause of economic justice. In 1974 she formed the Full Employment Action Council, a broad coalition of over 100 religious, labor, business, civil and women's rights organizations dedicated to a national policy of full employment and equal economic opportunity. She also helped to found the Martin Luther King Jr. Center for Non- Violent Social Change in Atlanta, dedicated both to scholarship and to activism. Over time, Mrs. King also developed her own causes and rhetoric, which were consistent with the vision of her husband. For example, when she stood in for her husband at the Poor People's Campaign at the Lincoln Memorial on June 19, 1968, she spoke not just of his vision for social justice, but also of gender and racial equality. She called upon American women ``to unite and form a solid block of women power to fight the three great evils of racism, poverty and war.'' Mrs. King also dedicated herself to the cause of peace, traveling throughout the world on goodwill missions to Africa, Latin America, Europe and Asia. In 1983, she marked the 20th anniversary of the historic March on Washington by leading a gathering of more than 800 human rights organizations, the Coalition of Conscience, in the largest demonstration the Capital City had seen up to that time. And in 1993, Mrs. King was invited by President Clinton to witness the historic handshake between Prime Minister Yitzhak Rabin and Chairman Yassir Arafat at the signing of the Middle East peace accords. Mrs. King also envisioned plans for a memorial dedicated to her husband. Recently, I cosponsored a bill that approved funding for such a memorial. This memorial will be the first on the National Mall in honor of a person of color. It is my hope that this memorial will continue to remind the Nation, and the world, of the powerful words of hope Dr. King expressed here in Washington, DC, more than 40 years ago. Throughout her life, Mrs. King was seen as an inspirational figure around the world, someone who truly personified the ideals to which she and Dr. King pledged their lives. But although our country has come a long way since the days when our country first met the legendary Coretta Scott King and Rev. Martin Luther King, Jr., we still have much to accomplish. We must steadfastly protect the advances already made in the fight for social equality, and also further those advances in the years ahead. We owe the legacy of Coretta Scott King, and that of her remarkable husband, the late Martin Luther King, Jr., no less.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I thank the ranking member of the Judiciary Committee and I thank the Chair. I come to the floor to offer my reasons for opposing Judge Alito. Let me begin with this: If the Supreme Court's decisions were simply mathematical computations of legal points, our job would be easy and all of the Court's decisions would be 9 to 0. But the legal philosophy and views of each individual Justice do play a role in decisionmaking on the Court. Perhaps not the majority of the time, when the question before the Court is not controversial; but certainly when the question is controversial and divisive, legal views and philosophies do play a role. We just had a recent example. Last week the Supreme Court upheld Oregon's Death with Dignity Act by a 6-to-3 decision in a case called Gonzales v. Oregon. When then-Judge Roberts came before the Senate, I and others questioned him on his end-of-life views. He then replied that the Government should not enter the arena. When discussing my point that he would not want the Government telling him what to do, he said: The basic understanding that it's a free country and the right to be left alone is one of our basic rights. He gave us the impression that he believed there was, in fact, a right to die. However, just last week, Chief Justice Roberts joined the two most conservative members of the Court, Justices Scalia and Thomas, in an opinion that, if it had carried the day, would have allowed the administration to invalidate the end-of-life initiative twice supported by Oregon voters in State elections, once when it was enacted and once when it was reaffirmed. Secondly, history reveals that legal views and philosophies have been the rationale for the rejection of at least 12 Presidential nominees for the Supreme Court. Members on the other side of the aisle often say these legal views and philosophies are not a bona fide consideration. But what I say is these have been used as the rationale for the rejection of at least a dozen Presidential nominees in history. Let me mention a few of them. It began with President George Washington when he nominated John Rutledge in 1795. Rutledge was rejected by a vote of 10 to 14 because he made a speech denouncing the Jay Treaty between the United States and Great Britain. Fifteen years later, President James Madison's nomination of Alexander Wolcott was rejected by the Senate by a vote of 9 to 24, in part, based of his policies while a U.S. collector of customs and his actions strongly enforcing controversial embargoes. President Andrew Jackson, in 1835, nominated Roger Taney to the Supreme Court. He had served as the Secretary of Treasury, and he removed the Government's deposits from the Bank of the United States. Senators who were opposed to that move offered a motion postponing his nomination indefinitely, which passed 24 to 21. President James Polk, nominated George Woodward in 1845, and allegations arose that as a delegate to the 1837 Constitutional Convention, he introduced an amendment that would have prohibited any foreigners who came to Pennsylvania after 1841 from voting or holding office. President Ulysses S. Grant nominated Ebenezer Hoar in 1869, who had served as Attorney General. Senators were upset by the fact that he recommended nominees to the circuit courts without taking into consideration Senators' preferences. His nomination was defeated 24 to 33. The same thing happened in 1881, when President Rutherford Hayes nominated Stanley Mathews. He was defeated because of his close ties to railroad and financial interests. President Warren Harding, in 1922, nominated Pierce Butler. His nomination was blocked from consideration on the Senate floor because of an alleged procorporation bias and his previous advocacy for railroad issues that were coming before the Court. In 1930, President Herbert Hoover's choice of John Parker was rejected because he made statements opposing the participation of African Americans in politics and because of his labor record while chief judge of the U.S. Fourth Circuit Court of Appeals. Marshall Harlan II was nominated by Dwight Eisenhower in 1954. The nomination was never reported out of committee because some members felt he was ``ultraliberal'' and hostile to the South and dedicated to reforming the Constitution by ``judicial fiat.'' In 1968, President Lyndon Johnson nominated Abe Fortas to be elevated to Chief Justice of the Supreme Court. His nomination was defeated after the Senate failed to invoke cloture 45 to 43. One Senator is reported as saying that Fortas' ``judicial philosophy disqualifies him for this high office.'' It went on for two of President Nixon's nominees. Clement F. Haynsworth, Jr. was rejected in 1969 by a vote of 45-55. At that time, five senators issued a joint statement that expressed ``doubts about his record on the appellate bench,'' and one senator opposed the nomination on the basis of his record on civil rights issues. The other, G. Harrold Carswell, was rejected by a vote of 45-51, in part based on his judicial philosophy. A statement issued by four senators at the time stated they opposed his nomination because his ``decisions and his courtroom demeanor had been openly hostile to the black, the poor and the unpopular.'' And, of course, one of President Ronald Reagan's nominees, Judge Robert Bork, whose views and legal philosophy were of great concern. Judge Bork believed Americans had no constitutional right to use contraception. He argued that in guaranteeing one man, one vote, the Court ``stepped beyond its boundaries as an original matter.'' And he had a broad view of Executive power. He once asserted that a law requiring the President to obtain a court order before conducting surveillance in the United States, and against U.S. citizens was ``a thoroughly bad idea and almost certainly unconstitutional.'' Most recently, White House Counsel Harriet Miers was withdrawn even before consideration by the Judiciary Committee due to the rightwing's objections. So it is abundantly clear that judicial philosophy and legal views have been evaluated by senators from both sides of the aisle throughout history, and they are valid reasons to reject a nominee for the U.S. Supreme Court. To now argue that evaluating one's judicial philosophy is setting a new precedent is simply turning a blind eye to history. So while none of us can predict how any person will act in the future, we do have to thoroughly consider information available that provides insights into a nominee's judicial philosophy and legal reasoning. I want to make clear. Secondly, many of my colleagues on the Judiciary Committee have argued that the nomination of Justices Ginsburg and Breyer have set a precedent for how Supreme Court nominations should be handled, that no one questioned their judicial philosophy, and that they swept through by large votes. I want to take a moment to answer that. The fact of the matter is that there was real advice and consent in the nominations of Justices Ginsburg and Breyer. Senator Hatch, in his book ``Square Peg: Confessions of a Citizen Senator,'' who was then the ranking member of the Judiciary Committee, gave the following account of the Ginsburg nomination: It was not a surprise when the President called to talk about the appointment and what he was thinking of doing. So President Clinton told Senator Hatch what he was thinking of doing. Senator Hatch goes on: President Clinton indicated he was leaning toward Bruce Babbitt . . . Clinton asked for my reaction. I told him the confirmation would not be easy. I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. Both were confirmed with relative ease. So since the ranking member of the Judiciary Committee--the minority ranking member--had recommended these nominees, it is not surprising that they moved through the confirmation process relatively easy. I am confident that if President Bush had decided to nominate any of the candidates suggested by the current ranking member of the committee, Senator Leahy, the process could have been smooth this time as well. But he didn't. With that said, I also believe that today is a very different day than the time when Justice Ginsburg and Justice Breyer were before the Senate. Let me point out some of the differences. There was not the polarization that there is within America today. There was not the clear effort to upset the current balance of the Court and move it far to the right. When Justices Ginsburg and Breyer were before the Senate, it had been more than 50 years since any statute had been struck down by the Supreme Court on commerce clause grounds. It wasn't actually until April 26, 1995, after both Justices had been confirmed, that the Supreme Court began to revisit an area that had been well settled since the New Deal in the mid-1930s in its decision on a case known as Lopez. In U.S. v. Lopez, the Court struck down the Gun-Free School Zones Act that had been passed by the Congress, which essentially prohibited the possession of a firearm within a thousand feet of a school. It was this decision that signaled the beginning of the Rehnquist Court's federalism ``revolution.'' In the next decade, from 1995 to 2005, the Rehnquist Court struck down all or portions of 30 congressionally enacted laws, 10 of them on federalism grounds. Here they are on this chart. I will point out some of them to you: The Indian Gaming Regulatory Act, the Federal Election Campaign Act, the Cable Television Consumer Protection and Competition Act, the Religious Freedom Restoration Act, the Communications Decency Act, the Brady Handgun Violence Prevention Act, the Water Resources Development Act, the Coal Industry Retiree Health Benefit Act, section 316 of the Communications Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Violence Against Women Act, the Telecommunications Act, the Americans with Disabilities Act, section 2511 of the Omnibus Crime Control and Safe Streets Act, the FDA Modernization Act, the Child Pornography Act, the Bipartisan Campaign Reform Act, the Child Online Protection Act and on and on and on, using various sections of the Constitution to hold impermissible congressional actions in these areas. Now, this is a major thrust of the Court, and it is a serious thrust. It is one that this body and the other body ought to understand because, with these actions, the Court was essentially declaring that the Congress cannot legislate in many important areas, areas that are very important to me and to my constituents. When Justice Ginsburg and Justice Breyer were before the Senate, we were not in the midst of a war with Iraq, nor was our country faced with a war on terror that could last for our lifetime and, for all we know, for our children's lifetime. Few would have predicted that the President would authorize the use of torture in defiance of the Geneva Convention and the Convention Against Torture and Military Law; that the President would argue that he had inherent plenary authority to detain Americans without due process; and that the President would authorize the electronic surveillance of Americans in direct violation of the law, a law passed by this body, the other body, and signed by President Carter in 1978. In addition, when Justices Ginsburg and Breyer were before the Senate, Planned Parenthood v. Casey had just recently been decided. Casey made it clear that Roe v. Wade remained controlling precedent; it affirmed a woman's constitutional right to privacy; it clarified that States have an interest to protect viable unborn life; and it held that many State laws relating to abortion were valid. With the Casey decision, there was a general acceptance that a woman's right to choose was secure. There had been a clear and direct challenge to Roe--as a matter of fact, it has been challenged at least three dozen times--and the Court had affirmed in Casey Roe's central holding. Finally, as I noted when discussing Senator Hatch's book ``Square Peg,'' at the time Justices Ginsburg and Breyer were before the Senate, we didn't have an administration that was bent on moving the Court dramatically in one direction. Yet today, when we are evaluating a nominee to replace Justice Sandra Day O'Connor--a pivotal Justice, a Justice who was the fifth vote in 148 out of 193 decisions--the President continues to assert that he will only nominate those who view the Constitution through a lens of strict constructionism and originalism. I think we must remember what these terms mean. I want to take a moment to do so. It is widely accepted among legal scholars that strict constructionists and originalists look to evaluate the Constitution based on what the words say as written and what the Framers intended those words to mean at the time they were written. If we examine what these terms could mean when applied to actual constitutional questions today, it becomes clear why most legal scholars view the Constitution as a living document, able to adjust to the differences of the country today. Remember, in colonial times, there were 13 colonies and around 3 million people. Today we are close to 300 million people and we are 50 States. Justice Brennan wrote in 1986 about this, and I quote him: During colonial times, pillorying, flogging, branding, and cropping and nailing of the ears were practiced in this country. Thus, if we were to turn blindly to history for answers to troubling constitutional questions, we would have to conclude that these practices would withstand challenge under the cruel and unusual clause of the eighth amendment. He wrote that in the Harvard Law Review in December of 1986. If an originalist analysis were applied to the 14th amendment, women would not be provided equal protection under the Constitution, interracial marriages could be outlawed, schools could still be segregated, and the principle of one man, one vote would not govern the way we elect our representatives. My concerns about confirming a strict constructionist or originalist to the Court are best demonstrated by what this legal reasoning could mean in three important areas: congressional authority to enact legislation, checks on Presidential powers, and individual liberty and privacy interests. I want to talk about these for a minute in the context of Judge Alito. It is my conclusion that Judge Alito would most likely join Justices Thomas and Scalia in the originalist and strict constructionist interpretations of the Constitution. And those are the interpretations that have been used by the Rehnquist Court in the past decade to overthrow all or portions of the 30 laws to which I just referred. I have come to this conclusion based on Judge Alito's record in the Reagan administration and on the bench. In 1986, Congress passed what seemed to me a pretty simple law. It was called the Truth in Mileage Act. It basically forbid anyone from tampering with odometers in automobiles. As a deputy at the Office of Legal Counsel, Judge Alito recommended that President Reagan veto this bill because it violated principles of federalism. Judge Alito also drafted a statement for President Reagan to make when he vetoed the bill, asserting ``it is the States and not the Federal Government that are charged with protecting the health, safety, and welfare of their citizens.'' It is the States, not the Federal Government. The implication is the Federal Government does not have a role in protecting the health, safety, and welfare of our citizens. Judge Alito's restricted views of congressional authority later surfaced in his decisions while on the Third Circuit. For me, a prime example is the case of U.S. v. Rybar. This case is significant because it was a case where Congress clearly had the authority to enact legislation, and yet Judge Alito wrote a separate opinion, a dissent, to argue against the law. He was the sole dissenter, and he was outvoted. In his opinion, he used a legal technicality that would have thrown out the conviction of a man who had illegally possessed and sold fully automatic machine guns in the State of Pennsylvania. In reaching his conclusion, he seemed to ignore past precedents, clearly establishing congressional authority to regulate firearms, such as the Miller case of 1939. He also dismissed previous statutes that had already outlined the obvious impact guns have on interstate commerce, even when sold within a State. To me, that was a major indication of his thinking. The facts in this case make this point even more obvious: one gun was from China, the other was a military M3 submachine gun made during World War II by General Motors. Clearly, both guns had traveled through interstate commerce before reaching Pennsylvania where the arrest took place. Judge Alito's views on congressional power could also limit Congress's ability to protect the environment. In the next few years, the Supreme Court is likely to hear a number of cases challenging Congress's authority to pass laws protecting the environment, such as the Clean Water Act and the Endangered Species Act. In fact, later this term, the Supreme Court will hear two cases. One is Carabell v. Army Corps of Engineers, and the other Rapanos v. U.S. The issue in both is whether the Congress has the authority to regulate nonnavigable waterways under the Clean Water Act. Both are brought to the Court on the basis that Congress could not regulate environmental control in nonnavigable waterways. If the Supreme Court were to strike down this provision, the Federal Government would lose its primary tool to protect wetlands. If confirmed, Judge Alito could be the decisive vote in these environmental cases, and his record on the environment, in this regard, is not reassuring. Let me give an example. In the case Public Interest Research Group v. Magnesium Elektron, it was undisputed that a chemical company had committed 150 different violations of the Clean Water Act by illegally dumping chemicals into a river. The plaintiffs in the case were members of an environmental group and had stopped using the river because of the pollution. Judge Alito voted in a 2-to-1 decision to throw the case out. He adopted a narrow reading of both the Clean Water Act and the legal concept of standing. In doing so, his conclusion would have gutted the provision that allows individual citizens to enforce the law. Three years later, the Supreme Court in a 7-to-2 decision in Friends of the Earth v. Laidlaw rejected Judge Alito's expansive view of the standing requirement, making it easier for individuals to sue to stop violations of the Clean Water Act. So this is a serious concern--Clean Water Act, Clean Air Act, Endangered Species Act. Our ability to legislate in these areas is very much at stake with this judge. Judge Alito's views on the scope of Presidential powers are deeply concerning to me at this point in American history. The Constitution gives both the President and the Congress critical roles in the defense of our Nation. The Constitution specifically provides in article I, section 8: The Congress shall have Power To . . . provide for the common Defense and general Welfare of the United States . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies . . . To provide and maintain a Navy; To make Rules for the Government and Regulation of the Land and Naval Forces . . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Services of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . . and To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. . . . In other words, we are responsible to give the powers to the President for him to execute in these areas. That is a very important article, and it is the heart of congressional authority and the balance of power at a time of crisis. Our national security and constitutional liberties suffer when either branch oversteps its bounds. Today our Nation is in a very different place than it was 10 years ago. We face new challenges to our constitutional framework of checks and balances. This President has asserted unprecedented authority in many areas which has raised profound constitutional questions. They include: May the President authorize torture? Does the Constitution permit the President to order the arrest and detention of individuals inside the United States without due process or access to counsel? Does the Constitution allow the President to violate laws based on inherent plenary power? Is it constitutionally permissible for the President to authorize electronic surveillance of Americans without a warrant in violation of Federal law? Given the critical importance of these questions to both our national security and our constitutional democracy, I asked Judge Alito a variety of questions to get a sense of his vision of the balance of power between the President, the Congress, and the courts. Rather than engage in a productive discussion about the issues, he simply repeated obvious truisms, such as ``nobody is above or below the law,'' or agreed to the unsurprising proposition that the Constitution and the laws of the Nation are supreme. He did not answer whether the President had to follow these laws. His answers were inadequate, so I was left to evaluate his views based on his prior record. At the Department of Justice, Judge Alito was part of the effort to press for expanded Presidential power, and there is no doubt about that. While serving in the Department of Justice, he wrote a memo on Presidential signing statements, and here is what he argued: From the perspective of the executive branch, the issuance of interpretive signing statements would . . . increase the power of the Executive to shape the law. ``The power of the Executive to shape the law.'' Do we believe this is correct, or do we believe that the ability to make and shape the law rests with the Congress, and the President can sign it or veto and indicate his reasons for so doing, but not shape the law to his specific demand? Then when speaking before the Federalist Society in November of 2000, Judge Alito expressed his support for the unitary executive theory. In 1988, this unitary executive theory was rejected by the Supreme Court in a decision called Morrison v. Olson. It was rejected overwhelmingly. The majority was 7 to 1. The opinion was offered by Justice Rehnquist. The Court rejected Justice Scalia's argument that the independent counsel must be under the executive branch and report to the President. That took care of what is called the theory of the unitary executive. Yet more than a decade later, Judge Alito declared: I still think that this theory best captures the meaning of the Constitution's text and structure. Clearly, this is a statement for expanded Presidential authority and for the unitary executive. Judge Alito's vague answers at the hearing, coupled with the specific statements made a few years ago, lead me to conclude that he is a strong proponent of expanded Presidential authority and that he is not committed to a proper system of checks and balances, which brings me to my third point. If one is pro-choice in this day and age, with the balance of the Court at stake, one cannot vote to confirm Judge Alito. I, for one, really believe there comes a time when you just have to stand up, particularly when you know the majority of people stand as you do. And I don't make that statement simply based on my gut instincts. It is reflected in the polls we see. A Gallup poll released earlier this week, January 24, stated that 63 percent of Americans do not want to see Roe overturned. And that is backed up by other polls. A CNN/USA Today/Gallup poll released earlier this month, January 9, said a majority of Americans, 56 percent, do not believe Judge Alito should be confirmed if his confirmation hearings reveal he would vote to overturn a woman's right to have an abortion. Around here when it comes to the issue of abortion the tail wags the dog. The minority is the dominant voice, while the majority of people out there feel very differently on the question. A majority of people, it is clear, in the United States of America believe that a woman should have certain rights of privacy--privacy that is limited by the State's interest to protect potential life, but a certain right to privacy. If you know this nominee is not going to respect those rights but holds differing views, then you have to stand up. I am very concerned about the impact Judge Alito could have on women's rights, including a woman's right to make certain reproductive choices as limited by State regulation. When the issues of Roe and precedent came up during the hearings for Chief Justice Roberts, he engaged in a conversation with me and other Senators. He acknowledged that Roe is well settled. He discussed the different factors the Court considered when Casey affirmed the central holding of Roe. In fact, during Judge Alito's hearings, I read part of the Roberts transcript to him and I gave him an opportunity to review it. I then asked him to tell me where he differed from Chief Justice Roberts and if he, too, believed Roe is well settled. He responded this way: I think that depends on what one means by the term well settled. That was after reading an explicit and full description of what the now Chief Justice had said before us. His response clearly indicated, at least in my view, that he didn't regard precedent that highly. I next tried to talk to him about his legal views and what he meant when he said ``precedent is not an inexorable command.'' I specifically stated: Those are the words that Justice Rehnquist used arguing for the overturning of Roe. So my question is did you mean it that way? The most Judge Alito would say is this: The statement that precedent is not an inexorable command is a statement that has been in the Supreme Court case law for a long period of time. And sitting here, I can't remember what the origin of it is. . . . In providing nothing more than this for an explanation, Judge Alito spoke volumes about his view on Roe. I listened carefully to the testimony of many legal scholars, including professors in constitutional law. One I want to quote, and I quoted it in the committee as well because it meant a great deal to me, is a professor of constitutional law at Harvard, Professor Larry Tribe. He said that, with the addition of Judge Alito: The Court will cut back on Roe v. Wade, step by step, not just to the point where, as the moderate American center has it, abortion is cautiously restricted, but to the point where the fundamental underlying right to liberty becomes a hollow shell. It is important to remember that Roe, as modified by Casey, is in fact a moderate compromise that considers both sides of the question. Together, Roe and Casey protect women's privacy interest but also allow States to pass regulations to restrict that interest postviability. If you look carefully at Judge Alito's decisions in three cases-- Planned Parenthood v. Casey, Blackwell v. Knoll, and Planned Parenthood v. Farmer--you will see in his writing where serious questions of his views arise. While sustaining Roe in these cases, Judge Alito's opinions also raised serious questions indicating if Judge Alito was not bound by precedent, or there was a gray area, he would weaken Roe by narrowly interpreting what constitutes an undue burden. Since in his dissent in Casey, Judge Alito argued that spousal notification was not an undue burden--a position rejected by the Supreme Court. Judge Alito may have a different interpretation of when life begins that could dramatically alter the Court's rulings and impact women's access to contraception. This concern was highlighted when in Alexander v. Whitman, Judge Alito wrote a separate opinion to clarify that he disagreed with the Court's ``suggestion that there could be `human beings' who are not `constitutional persons.''' Judge Alito may not agree with the Supreme Court's holding in Roe that a woman's health must be protected for a law to be constitutional. This issue was raised in Planned Parenthood v. Farmer where Judge Alito agreed with the decision of the Court to strike down a New Jersey abortion law. However, he asserted that the Court's opinion, including the discussion about the lack of a health exception, was ``never necessary.'' In addition, I was deeply troubled by Judge Alito's 1985 job application. Let me tell you where he was in 1985. He was not a youngster. Senator Durbin pointed this out in the Judiciary Committee. He had already clerked at a New Jersey law firm. He had already clerked for a Federal court of appeals judge. He had spent 4 years as an assistant U.S. attorney, and he had spent 4 years as Assistant to the Solicitor General in the Department of Justice, and he had argued 12 cases on behalf of the Federal Government before the Supreme Court and numerous other cases before the Federal courts of appeals. So this was not some naive ingenue coming down the pike, trying to get a job in the administration. He filled out the job application and gratuitously added these words, that he believed ``the Constitution does not protect a right to an abortion.'' He was not asked the question; he simply added those words. Why would you do that if you have argued 12 cases before the Supreme Court, if you spent 4 years as an assistant U.S. attorney, if you have argued before Federal circuit courts, you have clerked for judges--why would you do it unless it was a deeply held view of yours that you wanted to express? I asked him about this privately in my office and he said that he was attempting to get a political appointment. But he also told me that the application speaks for itself and he did not disavow what he wrote. That spoke volumes about where he is today. It is pretty clear to me that, given a chance, he would vote to overthrow Roe. He also wrote in that same application: In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment. The Warren Court's reapportionment decisions established the principle of one man, one vote, and they stopped the abhorrent practice of diluting votes by making some voting districts larger than others. For example, prior to these decisions some voting districts in the same State were 41 times the size of others. As an attorney with the Solicitor General's Office of the Department of Justice, Judge Alito argued three affirmative action cases, each time urging the Supreme Court to strike down affirmative action programs. The arguments he made in these cases are contrary to the Supreme Court's subsequent decision in Grutter v. Bollinger, another 5- 4 decision where Sandra Day O'Connor was the decisive fifth vote. In Grutter, the Court held that the University of Michigan and other colleges and universities receiving Government funding could consider race, ethnicity, and gender in school admissions policies in order to encourage a diverse student body. Judge Alito encouraged the Senate to judge him on his 15-year record on the Third Circuit. An examination of this record reveals a judge who tends to rule against civil rights more often than his colleagues. A review of Judge Alito's opinions by Yale Law School professors concluded that in the area of civil rights law, he consistently used procedural and evidentiary standards to rule against female, minority, age, and disability claimants. Similarly, a review of 311 published opinions by Knight-Ridder found that, although his opinions were rarely written with obvious ideology, he seldom sided with an employee alleging discrimination. Here again, there is a case, Riley v. Taylor, that is particularly troubling. This case took place in Delaware, where prosecutors had excluded every African-American juror in all four of its first-degree murder trials that had taken place in a Delaware county that year. A majority of the Third Circuit, sitting en banc, concluded that excluding every Black juror in four State murder trials was evidence of race-based discrimination. I would conclude that, too. The Court noted that it is not ``necessary to have a sophisticated analysis by a statistician to conclude that there is little chance of randomly selecting four consecutive all white juries.'' Judge Alito dissented. In contrast, he argued that ``there is little chance of randomly selecting left-handers in five out of six Presidential elections. But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?'' This dissent demonstrates a failure to grasp the critical point. Left-handed individuals have not suffered the long history of discrimination in this country the way African Americans have. I think to use that, as a Federal appellate court judge, as a bona fide argument to say that you can have four consecutive murder trials in a county and exclude every African American from the jury shows you have a mode of thinking that is not in the mainstream of American legal thinking. So, bottom line, based on all of the information before me, I have decided to vote against Judge Alito's confirmation. Mine is a vote that is made with the belief that a person's legal reasoning and judicial philosophy, especially at a time of crisis, at times of conflict, and at times of controversy, do mean a great deal. It is my belief that this nominee's legal philosophy and views will essentially swing the Court far out of the mainstream, toward legal philosophy and views that do not reflect the majority views of this country. I will vote no. I urge my colleagues to vote no. I ask unanimous consent to have printed in the Record a list of California organizations that oppose Judge Alito's confirmation and a set of letters from pro-choice organizations following my full remarks, and I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I am pleased to join with Senators Lautenberg, Snowe, Schumer, Coleman and many others to introduce legislation to reimburse States for prescription drug expenses they have incurred for their residents who are dually eligible for Medicare and Medicaid. States have had no other option but to step in and ensure seniors can still get their drugs because the implementation of the new Medicare drug benefit has been so poorly handled by the Bush administration. The faulty implementation of the new drug benefit has caused a major health emergency in California and States across the country, particularly for seniors with chronic and debilitating diseases who rely on multiple medications every day to keep them alive. It is incomprehensible to me that with all the money and time given to the Centers for Medicare and Medicaid Services, CMS, to implement this new drug benefit, stories emerge every day of seniors and disabled individuals being hospitalized because they are being told they have to pay hundreds of dollars for their medications which they cannot afford and thus don't take. Because of severe glitches in the database run by CMS, these individuals are leaving pharmacies without their medications or are making undue sacrifices to pay for costs they should not have incurred in the first place. So far, more than 24 States and the District of Columbia have stepped in to say they will cover the cost of prescription drugs for their residents who are dually eligible for Medicare and Medicaid and who cannot access lifesaving and life sustaining drugs as a result of Federal incompetence. Earlier this week, the Governor of California and California's State legislative leaders announced a plan to make $150 million available for 30 days to cover drug costs for dual eligible individuals who have fallen through the system. In California, these individuals account for more than 1 million of the State's 4 million total Medicare recipients. Problems with the Bush administration's implementation of the drug benefit have cost California $5.5 million to fill 63,000 prescriptions, as of January 18. I have no doubt these costs are just the beginning. Unless these significant implementation errors are fixed immediately, the new drug benefit amounts to a massive unfunded mandate. The Bush administration must reimburse States, in full, for the drug costs they have absorbed as a result of major implementation errors that occurred on their watch. The legislation I am introducing today with Senators Lautenberg, Snowe, Schumer and Coleman will ensure that States are repaid in full by the Federal Government for all costs associated with prescription drugs for dual eligible individuals. The States did not create the crisis felt by our Nation's poorest and most vulnerable seniors and disabled and the States should not be responsible for costs associated with a Federal program that was intended to provide these individuals with comprehensive prescription drug coverage at little or no cost. It is simply unacceptable for the Bush administration to tell States and the Congress not to worry because the private health insurance plans will reimburse States for the costs they've incurred. States should not be made to wait to be reimbursed because of implementation foul-ups caused by CMS. I urge my colleagues to support this legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I am pleased to join with Senators Lautenberg, Snowe, Schumer, Coleman and many others to introduce legislation to reimburse States for prescription drug expenses they have incurred for their residents who are dually eligible for Medicare and Medicaid. States have had no other option but to step in and ensure seniors can still get their drugs because the implementation of the new Medicare drug benefit has been so poorly handled by the Bush administration. The faulty implementation of the new drug benefit has caused a major health emergency in California and States across the country, particularly for seniors with chronic and debilitating diseases who rely on multiple medications every day to keep them alive. It is incomprehensible to me that with all the money and time given to the Centers for Medicare and Medicaid Services, CMS, to implement this new drug benefit, stories emerge every day of seniors and disabled individuals being hospitalized because they are being told they have to pay hundreds of dollars for their medications which they cannot afford and thus don't take. Because of severe glitches in the database run by CMS, these individuals are leaving pharmacies without their medications or are making undue sacrifices to pay for costs they should not have incurred in the first place. So far, more than 24 States and the District of Columbia have stepped in to say they will cover the cost of prescription drugs for their residents who are dually eligible for Medicare and Medicaid and who cannot access lifesaving and life sustaining drugs as a result of Federal incompetence. Earlier this week, the Governor of California and California's State legislative leaders announced a plan to make $150 million available for 30 days to cover drug costs for dual eligible individuals who have fallen through the system. In California, these individuals account for more than 1 million of the State's 4 million total Medicare recipients. Problems with the Bush administration's implementation of the drug benefit have cost California $5.5 million to fill 63,000 prescriptions, as of January 18. I have no doubt these costs are just the beginning. Unless these significant implementation errors are fixed immediately, the new drug benefit amounts to a massive unfunded mandate. The Bush administration must reimburse States, in full, for the drug costs they have absorbed as a result of major implementation errors that occurred on their watch. The legislation I am introducing today with Senators Lautenberg, Snowe, Schumer and Coleman will ensure that States are repaid in full by the Federal Government for all costs associated with prescription drugs for dual eligible individuals. The States did not create the crisis felt by our Nation's poorest and most vulnerable seniors and disabled and the States should not be responsible for costs associated with a Federal program that was intended to provide these individuals with comprehensive prescription drug coverage at little or no cost. It is simply unacceptable for the Bush administration to tell States and the Congress not to worry because the private health insurance plans will reimburse States for the costs they've incurred. States should not be made to wait to be reimbursed because of implementation foul-ups caused by CMS. I urge my colleagues to support this legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I am pleased to join with Senators Lautenberg, Snowe, Schumer, Coleman and many others to introduce legislation to reimburse States for prescription drug expenses they have incurred for their residents who are dually eligible for Medicare and Medicaid. States have had no other option but to step in and ensure seniors can still get their drugs because the implementation of the new Medicare drug benefit has been so poorly handled by the Bush administration. The faulty implementation of the new drug benefit has caused a major health emergency in California and States across the country, particularly for seniors with chronic and debilitating diseases who rely on multiple medications every day to keep them alive. It is incomprehensible to me that with all the money and time given to the Centers for Medicare and Medicaid Services, CMS, to implement this new drug benefit, stories emerge every day of seniors and disabled individuals being hospitalized because they are being told they have to pay hundreds of dollars for their medications which they cannot afford and thus don't take. Because of severe glitches in the database run by CMS, these individuals are leaving pharmacies without their medications or are making undue sacrifices to pay for costs they should not have incurred in the first place. So far, more than 24 States and the District of Columbia have stepped in to say they will cover the cost of prescription drugs for their residents who are dually eligible for Medicare and Medicaid and who cannot access lifesaving and life sustaining drugs as a result of Federal incompetence. Earlier this week, the Governor of California and California's State legislative leaders announced a plan to make $150 million available for 30 days to cover drug costs for dual eligible individuals who have fallen through the system. In California, these individuals account for more than 1 million of the State's 4 million total Medicare recipients. Problems with the Bush administration's implementation of the drug benefit have cost California $5.5 million to fill 63,000 prescriptions, as of January 18. I have no doubt these costs are just the beginning. Unless these significant implementation errors are fixed immediately, the new drug benefit amounts to a massive unfunded mandate. The Bush administration must reimburse States, in full, for the drug costs they have absorbed as a result of major implementation errors that occurred on their watch. The legislation I am introducing today with Senators Lautenberg, Snowe, Schumer and Coleman will ensure that States are repaid in full by the Federal Government for all costs associated with prescription drugs for dual eligible individuals. The States did not create the crisis felt by our Nation's poorest and most vulnerable seniors and disabled and the States should not be responsible for costs associated with a Federal program that was intended to provide these individuals with comprehensive prescription drug coverage at little or no cost. It is simply unacceptable for the Bush administration to tell States and the Congress not to worry because the private health insurance plans will reimburse States for the costs they've incurred. States should not be made to wait to be reimbursed because of implementation foul-ups caused by CMS. I urge my colleagues to support this legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I am pleased to join with Senators Lautenberg, Snowe, Schumer, Coleman and many others to introduce legislation to reimburse States for prescription drug expenses they have incurred for their residents who are dually eligible for Medicare and Medicaid. States have had no other option but to step in and ensure seniors can still get their drugs because the implementation of the new Medicare drug benefit has been so poorly handled by the Bush administration. The faulty implementation of the new drug benefit has caused a major health emergency in California and States across the country, particularly for seniors with chronic and debilitating diseases who rely on multiple medications every day to keep them alive. It is incomprehensible to me that with all the money and time given to the Centers for Medicare and Medicaid Services, CMS, to implement this new drug benefit, stories emerge every day of seniors and disabled individuals being hospitalized because they are being told they have to pay hundreds of dollars for their medications which they cannot afford and thus don't take. Because of severe glitches in the database run by CMS, these individuals are leaving pharmacies without their medications or are making undue sacrifices to pay for costs they should not have incurred in the first place. So far, more than 24 States and the District of Columbia have stepped in to say they will cover the cost of prescription drugs for their residents who are dually eligible for Medicare and Medicaid and who cannot access lifesaving and life sustaining drugs as a result of Federal incompetence. Earlier this week, the Governor of California and California's State legislative leaders announced a plan to make $150 million available for 30 days to cover drug costs for dual eligible individuals who have fallen through the system. In California, these individuals account for more than 1 million of the State's 4 million total Medicare recipients. Problems with the Bush administration's implementation of the drug benefit have cost California $5.5 million to fill 63,000 prescriptions, as of January 18. I have no doubt these costs are just the beginning. Unless these significant implementation errors are fixed immediately, the new drug benefit amounts to a massive unfunded mandate. The Bush administration must reimburse States, in full, for the drug costs they have absorbed as a result of major implementation errors that occurred on their watch. The legislation I am introducing today with Senators Lautenberg, Snowe, Schumer and Coleman will ensure that States are repaid in full by the Federal Government for all costs associated with prescription drugs for dual eligible individuals. The States did not create the crisis felt by our Nation's poorest and most vulnerable seniors and disabled and the States should not be responsible for costs associated with a Federal program that was intended to provide these individuals with comprehensive prescription drug coverage at little or no cost. It is simply unacceptable for the Bush administration to tell States and the Congress not to worry because the private health insurance plans will reimburse States for the costs they've incurred. States should not be made to wait to be reimbursed because of implementation foul-ups caused by CMS. I urge my colleagues to support this legislation.

Mrs. FEINSTEIN

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

Mrs. FEINSTEIN. Mr. President, let me ask this question. The question is whether I can have such a commitment from the majority leader, since these are both bills that have passed this body unanimously and have also been conferenced by the House, if we could consider them when we come back in January to be the first order of business?

Mrs. FEINSTEIN. Mr. President, reserving the right to object, it is my understanding--I ask that it be confirmed--that titles III and VII of the conference report to accompany H.R. 3122 concerning port security and the Combat Meth Act are not in this unanimous consent agreement. Is that correct?

Mrs. FEINSTEIN. Does the minority leader concur in that?

Mrs. FEINSTEIN. Thank you. January or February. Thank you very much.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I thank the Senator from Washington, and I thank the Chair. ANWR is an issue that arouses great passion on both sides of this issue, but there are strong arguments that underlie the belief that the opening of these critical 1\1/2\ million acres of pristine wilderness is small, from an oil production perspective, and very damaging environmentally. First, the Arctic Refuge Coastal Plain, where the drilling would occur, is the ecological heart of the Refuge. It is the center of wildlife activity. If ANWR were opened for drilling, the wilderness would be crisscrossed by roads, pipelines, powerplants, and other infrastructure. The Department of Interior estimates that 12,500 acres would be directly impacted by drilling. I strongly believe that destroying this wilderness does very little to reduce energy costs, nor does it do very much for oil independence. It will produce too little oil to have a real impact on prices or overall supply, and it would offer a number of false hopes. On average, ANWR is expected to produce about 800,000 barrels of oil a day and, in 2025, these 800,000 barrels per day would represent but 3 percent of the projected 25 million barrels of oil a day of U.S. consumption. By changing SUV mileage requirements to equal sedans, we produce a million barrels of oil a day savings. I don't believe we can drill our way to energy independence. I urge a ``no'' vote.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to state my opposition to this cynical effort to add a very controversial provision to allow drilling in the Arctic National Wildlife Refuge and also adds a provision to grant unprecedented liability protection to vaccine manufacturers to a critical Defense appropriations bill. Holding funding for our troops and relief for Hurricane Katrina victims hostage in this manner is just plain wrong and a violation of at least two Senate rules--XXVIII and a budget point of order--and cynical. Rule XXVII prevents Senators from adding provisions that have not been included in either the House or Senate bill from being added to the conference report. Neither the House nor the Senate included any language on ANWR, so according to the Senate rules, it should not have been included in the conference report. The provision also appears to violate section 311 of the Budget Act. The budget resolution which we passed in April assumed that the Treasury Department would raise about $2 billion from opening the Arctic for drilling. Yet the appropriations bill spends $5 billion of revenue from ANWR. As far as I know, opening ANWR to drilling has not been rescored, so the score from earlier this year is still in effect. As a result, this provision is subject to a budget point of order. It makes a mockery of the rules and procedures of the Senate and strikes a blow at the heart of collegiality. The ANWR provision was originally added to the budget reconciliation bill. Courageous House Republicans stood up and said no. So when this route was closed, it was added to this important appropriations bill, in violation of at least one Senate Rule and the Budget Act. To make matters worse, the vaccine proposal was added to the bill after the House-Senate Conference Committee concluded its meeting. This is outrageous. I believe it is all being done with a cynical attitude that says unless we accept it, we are going to run the risk that we will vote against a major bill which funds all military operations at a critical time in our history. ANWR is an issue that arouses great passion on both sides of the issue. There are strong arguments that underlie the belief that the opening of these critical 1.5 million acres of pristine wilderness is small from an oil production perspective and damaging environmentally. First, the Artic Refuge's Coastal Plain, where the drilling would occur, is the ecological heart of the refuge. It is the center of wildlife activity and the home of nearly 200 wildlife species, including polar bears, musk oxen, and porcupine caribou. If ANWR were opened up for drilling, the wilderness would be crisscrossed by roads, pipelines, power plants, and other infrastructure. In fact, the Department of the Interior estimated that 12,500 acres would be directly impacted by drilling. I believe that destroying this wilderness does very little to reduce energy costs, nor does it do it very much for oil independence. I also believe deeply that we cannot drill our way out of our Nation's over dependence on oil. ANWR will produce too little oil to have a real impact on prices or overall supply. And it would offer a number of false hopes: First, to those seeking lower gasoline prices: opening the Refuge would only lower gasoline prices only 1 cent per gallon 20 years from now. Second, to those seeking a major boost in oil supply: the United States now consumes 20 million barrels of oil per day, a number that will climb every year unless we learn to conserve and recognize that we must find alternatives to fossil fuels. On average, ANWR is expected to produce about 800,000 barrels per day. And in 2025, this 800,000 barrels per day would represent only 3 percent of the projected 25 million barrel a day U.S. daily consumption. So, in essence, we would be sacrificing this cherished wilderness to obtain about 10.4 billion barrels of oil over the 35-year projected ANWR lifetime. This amounts to a little more than one year's supply of oil for the United States. There are other things we can do to meet our energy needs, including raising fuel economy standards and drilling at alternative sites. First, just changing the mileage of SUVs and light trucks from 21 to 27.5 miles per gallon would save the United States 1 million barrels of oil a day and reduce our dependence on oil imports by 10 percent. This would save more oil in 1 day--1 million barrels--than ANWR would produce in one day 800,000 barrels. Second, there are other important supplies of domestically produced oil. The Minerals Management Service, MMS, has reported that there are 36.9 billion barrels of undiscovered, technically recoverable oil that exists in the Gulf of Mexico, much of which would likely be found under the 8,043 already leased blocks in the Gulf. These already leased blocks can be drilled right now, without delay, if the oil companies were willing. In addition, there are new technologies to produce oil from ``depleted'' oil fields throughout the United States. According to scientists, using enhanced oil recovery could allow the United States to produce an additional 32 billion barrels of technically recoverable oil from already existing wells. The bottom line is that it is hardly worthwhile to damage the Nation's only refuge that encompasses a complete range of arctic ecosystems and provides an essential habitat for many species for less than 1 percent of the world's oil output. Drilling will not give us more energy security, but it will carry huge environmental costs. We can start to address high energy prices, energy security and global warming by increasing fuel economy standards, encouraging energy efficiency, promoting the development of new and alternative fuels, and supporting the invention and commercialization of new vehicle technologies. Drilling in ANWR is not the answer. Before I close, I also want to say a few words about another problematic provision in the bill. I was quite surprised to discover yesterday that after the conference on Sunday had been closed, new liability protections for pharmaceutical companies were added to the conference report. Over 30 pages of new language were included that provide essentially complete immunity from civil liability for drug companies and medical device manufacturers even when there is reckless disregard or gross negligence in developing or manufacturing these products--so long as the Secretary of HHS has made a ``Declaration.'' In addition, pharmaceutical and medical device companies are protected even when there are criminal violations of FDA standards so long as the administration has not taken action to enforce the violations. The bill does appear to allow for a lawsuit if an injured patient can demonstrate willful misconduct on the part of the company. However, the language is unclear as to whether the Secretary has to first approve regulations before even these suits may go forward. In addition, the bill literally directs the Secretary to promulgate regulations to further restrict the definition of willful misconduct--a decision that is usually left up to a court. Even more disturbing is that none of the Secretary's decisions are subject to review by a court, essentially wiping out individual's access to an impartial forum. I am also concerned that this legislation preempts State laws. If States have stronger laws to protect consumers from defective drugs or devices those laws are pre-empted, as we do in California, those laws are wiped out. Finally, the bill does create a trust fund to pay patients who cannot meet these severely restrictive standards based on the Smallpox Emergency Personnel Protection Act. However, that act is meant as a supplemental benefits program for health care workers administering the potentially deadly smallpox vaccine. And more importantly, there is no money for the trust. I am very disturbed that this egregious provision was added to the conference report. I am disturbed both by the process in which it was added, and by the substantive impact it could have if enacted into law. It is with a heavy heart that I will vote against cloture on this bill. I support the military 100 percent. I support our efforts to help the victims of Hurricane Katrina 100 percent. But I cannot support the manner in which this important bill was hijacked in an effort to get several very controversial provisions enacted despite widespread opposition. In an article that appeared in the Fairbanks Daily News-Miner, Senator Stevens was quoted saying that if a Senate filibuster over ANWR stops this bill, the legislation can be modified and passed so it has no impact on military finances. He said, ``If we lose, then we'll reconstitute the conference and ANWR will be out.'' I would hope that is the result. It would be the best course for this Congress and the Nation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to oppose the budget reconciliation conference report. The conference report cuts total $39.7 billion versus the Senate proposed $34.6 billion. It reduces mandatory outlays for entitlement programs by relying heavily on added financial burdens on poor, working Americans. This ``deficit-reduction'' effort of cuts in vital programs is offset by provisions soon to come which will provide $95 billion in additional tax cuts--including cuts to capital gains and dividends rates. The conference report will raise $39.7 billion while capital gains and dividends tax cuts passed by the House will reduce revenues by $20 billion over 5 years and $50 billion over 10 years. This strategy is clearly not reducing the deficit, and it does not justify cutting programs for the poor to benefit the wealthy. This bill is just another step to further the Republican agenda of severely cutting benefits to working-class families while handing out tax cuts to the wealthy. The fiscal year 2006 Department of Defense appropriations conference report is another illustration of this--this bill contains a 1 percent across-the-board cut to discretionary programs totaling $8.6 billion in fiscal year 2006. While Republican leaders had the opportunity to create significant savings in the conference report by reducing prescription drug costs and eliminating unnecessary payments to HMOs, they chose not to. This bill provides relief for special interests in exchange for greater burdens on poor, working families, welfare recipients, and children. Here is an overview of who wins and who loses in this conference report. The conference report fails to include provisions in the Senate bill that would have limited what Medicaid pays for prescription drugs. The Senate bill increased the minimum rebates that drug manufacturers are required to pay the Medicaid Program for drugs provided to Medicaid beneficiaries. The Senate bill also applied the rebates to drugs provided to Medicaid beneficiaries in managed care plans. In total, the prescription drug provisions in the Senate bill would have saved $3.9 billion over 5 years and $10.5 billion over 10 years. The conference report eliminates all but a few hundred million of these cuts. Although not in this bill, the drug industry scored another major victory in the fiscal year 2006 Department of Defense conference report by being handed broad liability protection even in instances of reckless disregard or gross negligence. This egregious provision protects drug companies even when there are criminal violations of FDA standards. I think we can safely say this holiday season will be a merry one for the drug industry. Unfortunately, the same cannot be said for poor and working Americans on Medicaid under this bill. The conference report maintains the $10 billion Preferred Provider Organization, PPO, stabilization fund even though 52 Senators voted to eliminate it and the extremely strong showing of private health insurance participation in the Medicare prescription drug benefit obviates the need for it. Even the independent, non-partisan Medicare Payment Advisory Commission, MedPAC, recommended, nearly unanimously, that the $10 billion stabilization fund be eliminated because it is unnecessary and unwarranted and provides an unfair competitive advantage to PPOs. In total, the conference report contains $1.9 billion in increased copays and premiums for poor families and children in Medicaid. That is over 5 years. If you look at the 10-year figure, that amount jumps to $10.1 billion. The Senate bill contained no such increases in premiums and copays. In total, the conference report cuts $3 billion that will directly impact Medicaid beneficiaries. What is going to happen to these families once they are required to pay possibly as much as 20 percent of the cost of each medication they take or 20 percent for each doctor visit with no annual limit on how much they have to pay out-of-pocket? They simply won't go to the doctor, they won't take their medications, or they will simply not enroll in Medicaid at all. For those Medicaid beneficiaries who can no longer afford to stay enrolled in Medicaid or choose not to enroll, who wind up in an emergency room for their medical care, under this bill there is no limit on what they may be charged, other than a 10-percent limit of the cost of service for those who are between 100 percent and 150 percent of poverty, which is equivalent to between $9,570 and $14,355 of individual annual income. As under the House-passed spending reconciliation bill, the conference report allows providers to deny a service if the patient has no ability to pay the charges at the time of services and States can terminate Medicaid coverage if the family cannot pay premiums. The conference report allows States to provide any child, without regard to income, a lower benefits package than they have today. That means low-income children, no matter how poor they are, are no longer guaranteed vision screenings, eyeglass coverage, therapy services, and medical equipment that would allow them to attend school. I am disappointed that the conference report eliminates a provision that Senator Hutchison and I worked hard to get included in the Senate bill which protects Medicaid adult day health care services in eight States: California, Texas, New York, New Jersey, Maryland, Massachusetts, New Hampshire, and Washington. In California alone, the elimination of this provision means that 47,000 seniors and disabled people are at risk of losing community-based health care services. And why are they at risk? They are at risk because of aggressive actions by this administration to force California's adult day health care program into a 1915(c) Medicaid waiver which the State of California estimates will make 40 percent of currently eligible program participants ineligible for the services they receive today. These services include skilled nursing care, physical, occupational, and speech therapy, and nutrition services for low-income, frail elders and disabled adults. The administration is pursuing this despite vocal, bipartisan opposition from California's Congressional Delegation. I ask unanimous consent to enter into the record two letters from the California delegation to the administration opposing a waiver. Cuts to Federal student loan programs in the conference report will push college out of reach for many middle- and low-income families. The $12.7 billion reduction over 5 years, nearly one-third of the conference report's total cuts, will be the largest cut to student aid ever enacted. This conference report makes it more expensive for students and their parents to borrow for college by increasing the interest rates and fees they pay on loans. At the same time, this bill protects private lenders at a higher cost to the Government. This is being done as students and families are struggling to pay skyrocketing college costs. The average cost of attending a public university for 1 year in our country has increased 66 percent within the last decade. Students will be forced to take out more loans to meet the cost of increasing tuition. This will only drive them greater into debt, making it even more expensive for students to pursue a college degree. The conference report reauthorizes the TANF Program for 5 years despite overwhelming opposition in the Senate to including TANF reauthorization in budget reconciliation. The conference report contains drastically inadequate child care funding and will cost California approximately $350 million more annually as a result of changes to work participation requirements. Lastly, I am deeply concerned about the impact this conference report will have on child welfare in California. This bill, like the House- passed bill, reduces Federal foster care supports that help grandparents and other relatives care for abused and neglected children. It also contains a provision overturning a 2003 Ninth Circuit Court of Appeals decision in Rosales v. Thompson that may harm more than 4,400 foster kids in California alone. Mr. President, the bill before us today represents a victory for special interests over the interests of our nation's poorest and most vulnerable citizens. I urge my colleagues to join me in rejecting this bill. I ask unanimous consent that two letters be printed in the Record.