Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Madam President, I plan to offer an amendment to the fiscal year 2004 Labor-HHS appropriations bill that seeks to offer States an alternative Medicaid FMAP formula while allowing States to remain in the current formula structure if they choose. This amendment is vital to providing some relief to States who have been shortchanged by hundreds of millions of dollars under the current FMAP formula for the cost of providing Medicaid services. The amendment will not penalize any State who wishes to remain under the current formula. It simply allows States to opt into a new formula that better reflects States' need. This new FMAP is only for Medicaid expenditures in excess of fiscal year 2003 Medicaid expenditure levels. For States who opt to go with the new formula, per capita income is replaced with a ratio of the most recent 3-year averages of total taxable resources, TTR, as determined by the U.S. Department of the Treasury, and persons below the poverty level. The multiplier is also lowered from 0.45, used in the current FMAP formula, to 0.40. For the period 2004-2013, the new formula has a maximum increase of one percentage point per fiscal year above the current FMAP formula for the prior year. Once a State opts to go with the new formula, they will not be able to switch back to the current FMAP formula. However, they will be held harmless at the FMAP rate they would have gotten under the current formula, prior to the Jobs and Growth Tax Relief Reconciliation Act of 2003, for the current year. States opting for the new formula will have Medicaid expenditures, up to the fiscal 2003 levels, matched at the current FMAP formula and with expenditures above the fiscal 2003 levels matched at the new formula FMAP. In a study released in July 2003, GAO found that the formula used to calculate the portion of each State's Medicaid expenditures that the Federal Government will pay--the FMAP--often widens the gap between individual States and the national average. Under the current formula, 21 States move farther from the average State's funding ability after the Federal match is added. In fact, 4 of the 21 States--California, Florida, Hawaii, and New York--have below-average funding ability before Federal matching is added and move farther below the average after Federal matching aid is added. Since Medicaid was enacted in 1965, the Federal match rate has been determined by a State's per capital income. In its study, GAO found that per capita income is a poor proxy for determining both State resources and the low-income population. The Feinstein amendment will give States the option to choose a formula that is based on a combination of the State's total taxable resources and population below the poverty level.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I take this opportunity to extend warm birthday greetings to a constituent of mine, Linda Maxwell Robertson. Linda will be turning 50 on September 1st. Linda is an unusual woman who pursued a career in commercial film production in New York City right out of high school. She started as a production assistant and rapidly rose through the ranks so that, at the ``ripe old age'' of 26, she co-founded her own production company with a partner, Mark Ross. Within a few years, her company had annual billings in excess of $8 million. Later, Linda established a commercial production company in New York for noted Hollywood directors Ridley and Tony Scott and Patrick Morgan. Linda is a Past President of the East Coast Chapter of the Association of Independent Commercial Producers, AICP, and a current member of the Directors Guild of America. In addition to her work-related responsibilities, Linda served as a media consultant to the Partnership for a Drug-Free America and was the Executive in Charge of Production for the United Nations' worldwide campaign to celebrate its 50th anniversary. In that capacity, she produced commercials in North America, South America, England, Thailand, South Africa, Mozambique, Australia, and the Czech Republic. These accomplishments would be enough to satisfy most people, but not Linda! In her mid-40s, she went to college to New School University, where our friend and former colleague, Bob Kerrey, now serves as President. Linda earned her Bachelor's degree in Psychology in 2000, graduating with a 3.9 grade point average, GPA. While she was earning her BA, Linda started Black/Max Productions with her friend, Ann Black. The two of them are busy developing innovative and educational children's programming. In July 2000, Linda and her husband Mike, daughter Charlotte, and dog Sally moved to Newport Beach and now live in Laguna Beach. At present, Linda is a few semesters shy of earning a Master's degree in clinical psychology from Pepperdine University's Graduate School of Education and Psychology. This September, she'll begin work as a trainee in marriage and family therapy at Pepperdine's Community Counseling Center. She is currently working as head of marketing and special events coordinator at the Cannery Restaurant in Newport Beach. Linda finds the time, somehow, to get her poetry published and to be active in charitable affairs in her community and at St. Margaret's Episcopal School in San Juan Capistrano, where her daughter Charlotte will be entering the 10th Grade this fall. Meanwhile, her husband Mike is Creative Director at Heil-Brice Retail Advertising, HBRA, in Newport Beach and the two of them are on the brink of opening one or more ``It's a Grind'' coffee shops in Orange County. I know that Linda is an inspiration to all who know her, especially her family--her younger brother, Gray, served as my legislative director for two years. It's a pleasure to send her birthday greetings. I could tell her to keep up the great work, but I don't think it's necessary!

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I took the floor last night to speak about the nomination of William Pryor and the unfortunate circumstances surrounding that nomination, and since that time certain of my colleagues on the other side of the aisle have chosen to mischaracterize my statements and perpetuate the unfair and baseless charges I was trying to debunk. I want to briefly correct the record on two of these mischaracterizations, because I believe very strongly that these types of wrongful allegations should not be allowed to stand. First, the junior Senator from Pennsylvania stated that anyone who questioned Mr. Pryor's ``deeply held beliefs'' would be questioning his religious beliefs. Specifically, he said: I just suggest that it is obvious to anyone that this code word is an antireligious bias. Senator Durbin attempted to correct the record immediately but was not allowed to do so until later. I appreciate his efforts in that regard, but I think I should also set the record straight myself. First, what I said in my statement was clearly not a religious attack. I said, and I quote: Many of us have concerns about nominees sent to the Senate who feel so very strongly, and sometimes stridently, and often intemperately about certain political beliefs and who make intemperate statements about those beliefs. So we raise questions about whether those nominees can be truly impartial, particularly when the law conflicts with those beliefs. So Mr. President, I was very careful to raise this concern about deeply held political beliefs, not religious beliefs. And my concern is not just the beliefs themselves but the manner in which they are expressed. I have found that intemperate statements often accompany intemperate people. Indeed, I went on to say that, and again I quote: It is true that abortion rights can often be at the center of these questions. As a result, accusations have been leveled that any time reproductive choice becomes an issue, it acts as a litmus test against those whose religion causes them to be anti-choice. But pro-choice Democrats on this committee have voted for many nominees who are anti-choice and who believe that abortion should be illegal, some of whom may even have been Catholic. I do not know because I have never inquired. So this truly is not about religion. This is about confirming judges who can be impartial and fair in the administration of justice. I think when a nominee such as William Pryor makes inflammatory statements and evidences such strongly held beliefs on a whole variety of core issues, it is hard for many of us to accept that he can set aside those beliefs and act as an impartial judge--particularly because he is very young, 41; particularly because this is a lifetime appointment; and particularly because we have seen so many people who have received lifetime appointments then go on and do just what they want, regardless of what they said. So it is of some concern to us. That is what I said. I did not attack Mr. Pryor's religion. Nobody in this debate has. I did not attack his religious beliefs. Nobody in this Senate has. To accuse anyone in this body of using an anti-Catholic litmus test is inaccurate, and wrong. It is ill-advised, and it risks bringing us back to a day where religion and race and gender debates split this Nation apart at its seams. The judicial nominations process is a serious one and filled with countless debates about very serious issues. We should focus on what is important and real, not on what can inflame political supporters. The second mischaracterization of my statement was by the junior Senator from Alabama. I know he feels very strongly about this nominee, so I do not blame him for fighting hard for Mr. Pryor. Nevertheless, the junior Senator from Alabama did not accurately portray what I said in my statement. Specifically, the Senator said that I claimed Mr. Pryor had ``used his power as attorney general to obstruct the enforcement of the Violence Against Women Act in Alabama.'' What I actually said was that Pryor ``used his position as attorney general to limit the scope of crucial civil rights laws like the Violence Against Women's Act, VAWA, the Age Discrimination In Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act, and the Family Medical Leave Act. . . . For example, he was the only attorney general to argue against a key provision in the Violence Against Women Act on federalism grounds.'' Now in retrospect, I should have been more careful in the wording of my statement, and for that I am sorry. I said that Mr. Pryor ``used his position as attorney general to limit the scope of crucial civil rights laws . . .'' rather than saying what I meant to say, which was that he argued for limiting the scope of those laws--sometimes successfully--in briefs before the Federal courts. But I certainly never said that he used his power to ``obstruct'' the law in Alabama. Some other comments have been made throughout this debate that mischaracterize the Democratic opposition to this nominee and in many instances state, or at least imply, that our opposition is based on religion. I will say once again, this is simply not true. I hope, as I said yesterday, that this debate can focus on what it should focus on, the qualifications of this nominee. That focus should not have been lost through a violation of the committee rules, the thwarting of an ongoing investigation into the nominee, or these false charges of religious bias.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to pay tribute to MG Kevin B. Kuklok, who is about to retire and return to private life after more than 35 years of selfless service to our Nation as a U.S. Marine. Major General Kuklok graduated from the University of North Dakota, with a Bachelor of Science degree in chemical engineering. He also received his master's degree in business administration from the United States International University in San Diego, CA. He enrolled in the Platoon Leaders Class program in March 1965, and was commissioned a Second Lieutenant in the Marine Corps Reserve in August 1968. He has served with numerous operational commands in billets ranging from staff officer to Commanding General. Some of these units were Marine Medium Lift Helicopter Squadrons 267 and 367; 2d Battalion, 7th Marines; Marine Attack Helicopter Squadron 169; Marine Air Group 46; and Marine Medium Helicopter Squadron 766. He was Commanding Officer Headquarters and Maintenance Squadron 41, Det B; Commanding Officer of Marine Medium Helicopter Squadron 764. He also served as Director of Readiness and Safety, 4th Marine Aircraft Wing, MARRESFOR, New Orleans, LA. Upon promotion to brigadier general, he assumed command as the commanding general, Reserve Marine Ground Task Force East, Camp Lejeune, NC. Major General Kuklok is a veteran of Operations Desert Shield and Desert Storm. He also served as the commanding general, 4th Marine Aircraft Wing, Marine Corps Reserve, from September 1997 until August 2000. In November 2001, General Kuklok was ordered back to active duty to support Operation Enduring Freedom, at which time he assumed his current duties as Assistant Commandant, Plans, Policies and Operations, his last active duty position. Throughout his career as a U.S. Marine, Major General Kuklok has demonstrated uncompromising character, discerning wisdom, and a sincere, profound sense of duty to his country, his Corps, and especially to his marines and their families. On behalf of my colleagues on both sides of the aisle, I wish to recognize Major General Kuklok's accomplishments and his devoted service to the Nation. Congratulations to him, his wife, Diana, and their two children, Nicole and Bryce, on the completion of a long and distinguished career.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. No. I would rather finish my remarks. If I have time left, I will yield.

Mrs. FEINSTEIN. I do not think more than 10 or 12 minutes.

Mrs. FEINSTEIN. Mr. President.

Mrs. FEINSTEIN. Mr. President, thank you very much. I thank the chairman of the committee and I thank the ranking member. I have served on this committee for 10 years. I love this committee. The Presiding Officer serves on this committee. It is a challenging committee. It is particularly challenging for me because I am a nonlawyer. I have had a great opportunity to work across the aisle on any number of different proposals with the chairman of the committee, with the Senator from Arizona, Mr. Kyl, with Senator Lindsey Graham, with others. I have enjoyed it. There has always been a spirit of collegiality. However, that spirit of collegiality is at a crossroads. Something very ugly has been injected. It has to do with this nominee, and it has to do with circumstances around this nominee. I will spend a few moments discussing them. This kind of thing that has been going on has to stop. Last week, the Democratic members of the committee were accused by outside groups, and even some of our colleagues on the committee, of applying an anti-Catholic religious litmus test on the nomination of William Pryor. These charges are false. They are baseless. They are offensive. And they are beneath the dignity of a Senate committee tasked with making very important decisions on the future of the Federal judiciary. We have heard a lot about the ad. I never thought I would see an ad like this. It is a rather insidious ad. I will not show it, but I will describe it. It is two courtroom doors. Atop it says ``Judicial Chambers.'' On the doorknob hangs a sign that says ``Catholics Need Not Apply.'' When I saw this ad, I thought we were going back decades. When I saw this ad, I thought: Uh-oh, if there is one thing I know--and I have watched cities polarized, I have seen assassinations result from the polarization--I know what happens when people seek to divide. One of the easiest ways to divide is to use race or religion in an adverse manner. That is what this ad sought to do. It sought to divide. Then I watched C-SPAN the other night. I saw clergy discussing the ad. I saw them beginning to believe that religious litmus tests were being used by the Judiciary Committee. Now, in fact, that has never been the case. Senator Schumer pointed out during Mr. Pryor's markup in the committee that this kind of thing is becoming somewhat of a pattern. Once it becomes a pattern, no one really knows where it goes. We have not opposed a lot of nominees. The ranking member has made that clear: 140 nominations have gone through. Just today we had a hearing in the morning. I introduced two California judges who were going through in a 4-month period of time, new judges produced because the chairman and the ranking member agreed there was a very heavy caseload in San Diego and there should be a number of new judges. They were nominated in May. Already these judges have had their hearing. So good things do happen. However, each time we have opposed a nominee, there has been bias used as a rationale for those who do not agree with us, to purport that bias is part of our rationale. It happened with an anti-Hispanic charge with Miguel Estrada, an anti-woman charge with Priscilla Owen, an anti- Baptist charge with Charles Pickering, and now with William Pryor an anti-Catholic charge. You have no idea what happens when this begins to circulate throughout the electorate. People do not know exactly what goes on. It is a dastardly thing to do. In a sense it is scurrilous, because it caters to the basic insecurity of all of us who share a religion that may be different from someone else's. So it has a truly insidious quality to it. To call us antiwoman--I don't have to tell you how bizarre it is for me to be called antiwoman. And to say we have set a religious litmus test is really equally false. Many of us have concerns about nominees sent to the Senate who feel so very strongly, and sometimes stridently, and often intemperately about certain political beliefs and who make intemperate statements about those beliefs. So we raise questions about whether those nominees can be truly impartial, particularly when the law conflicts with those beliefs. It is true that abortion rights can often be at the center of these questions. As a result, accusations have been leveled that any time reproductive choice becomes an issue, it acts as a litmus test against those whose religion causes them to be anti-choice. But pro-choice Democrats on this committee have voted for many nominees who are anti- choice and who believe that abortion should be illegal, some of whom may even have been Catholic. I do not know because I have never inquired. So this truly is not about religion. This is about confirming judges who can be impartial and fair in the administration of justice. I think when a nominee such as William Pryor makes inflammatory statements and evidences such strongly held beliefs on a whole variety of core issues, it is hard for many of us to accept that he can set aside those beliefs and act as an impartial judge--particularly because he is very young, 41; particularly because this is a lifetime appointment; and particularly because we have seen so many people who have received lifetime appointments then go on and do just what they want, regardless of what they said. So it is of some concern to us. I hope these accusations will stop. I hope we can focus on the merits of each nominee, not on baseless allegations against Members of the Senate who are trying to do their constitutional duties. I am very concerned because, to date, not a single Member on the other side has said they believe these ads are baseless, have said they know we do not practice this kind of decisionmaking. No one has disavowed these ads. So I call on the committee to disavow these ads. I call on the administration to disavow these ads. And I call on them to set the record straight. There was a time in our history when the phrase ``Catholics need not apply'' was used to keep countless qualified Americans from pursuing the American dream. The same can be said for ``no Jews need apply'' and ``no Irish need apply.'' And, much like Justice Sandra Day O'Connor, when she first looked for her first job and I first looked for my first job, really ``women need not apply.'' In fact, I lost my first job to a man who was less qualified than I, but I was a woman and I had a small child and at that time that was not much coin of the realm to get a job. So I was beaten out many times by men who were less qualified--had less academic experience, less graduate experience, et cetera. These were dark times in American history and many of us in this body remember those times. But every one of us should be absolutely committed to preventing those days from ever recurring. What this is a sign of is that those days are beginning to occur again. I hope we do not see political cheap-shot artists bringing painful phrases back for the purposes of intimidating Senators and stacking Federal courts. We should be above that in this debate. This is the Senate, as the distinguished Senator from Nevada has said, and our constitutional duty should not be marred by false allegations or intimidating political tactics. Our Nation's history in fighting bigotry of all kinds must continue. I urge my colleagues very sincerely to condemn these tactics and move on to debating the merits of controversial nominees. Now a second event at the Pryor markup also disturbed me greatly and was especially troubling because we faced a repeated refusal to acknowledge the clear application of a longstanding committee rule on ending debate. Without the violation of the rule, Mr. Pryor would still be before the Judiciary Committee, as I deeply believe he should be. The Judiciary Committee rules contain a clause known as Rule 4 that prevents closing off debate on a nominee unless at least one member of the minority agrees to do so. It isn't used a lot but it has been used before when I have been on the committee. During debate on the Pryor nomination, the Ranking Member attempted to invoke this rule because members of the minority did not believe that an ongoing investigation into Mr. Pryor's nomination had been given sufficient time. Serious allegations were made about Mr. Pryor's truthfulness to the committee during the hearing, and staff had been looking into those allegations. Put simply, the job has not been completed. But, as Chairman Hatch did earlier this Congress with regard to the nomination of Deborah Cook and John Roberts, he chose to ignore this rule and force through a vote over the objections of every member of the minority on the committee. We thought the issue had been resolved during discussions over what happened last time, but apparently we were wrong. The rule contains the following language: The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bringing the matter to a vote without further debate, a rollcall vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the Minority. That is a reading on its face. It stands on its face. It is what it is. Over the last few decades, it has clearly meant that unless one member of the minority agrees to cut off debate and move straight to a vote, no vote can occur. This is one of the only protections the minority party has in the Judiciary Committee. Without it, there might never be debate at all. A chairman could convene a markup, demand a vote, and the entire process would take 2 minutes. This is not how a deliberative body should function, and more importantly, it is contrary to the rules. Either the rules are observed or we have chaos on the committee. If we do not like the rules, we should change the rules. But we should follow the rules. As I understand it, this rule was first instituted in 1979. Senator Kennedy was chairman of the committee at the time. It has been followed ever since. Senator Hatch, our current chairman, has also followed the rule. I make no bones about the fact that I am very fond of the chairman, but he has been going through some kind of a change lately, and I don't quite know what it is. During the markup of Bill Lann Lee to be the Assistant Attorney General for the civil rights division, there was some fear that Republicans, who had the votes to defeat the nomination would move directly to a vote and prevent any debate on the issue at the markup. Democrats, on the other hand, wanted the chance to explain their position, and maybe even try to change some minds on the other side. During that markup, then, there was significant discussion about what rule 4, the rule about cutting off debate, really means. At one point, it is interesting to note, Chairman Hatch himself commented that: At the appropriate time, I will move to proceed to a vote on the Lee nomination. I assume there will be no objection. It seems to me he deserves a vote. People deserve to know where we stand on this issue. Then we will, pursuant to Rule IV, vote on whether to bring the Lee nomination to a vote. In order to vote on the nomination, we need at least one Democrat to vote to do so. That is precisely what we are discussing. The situation then was the same as the situation regarding Mr. Pryor. In order to vote on the nomination, we need at least one Democrat to vote to do so. But we never even had the chance to vote on cutting off debate. I don't need to lecture this body that we are a nation of laws. We know that. We expect these laws to be obeyed. This is a Senate of rules. Our rule book is 1,600 pages long. There is no greater expert on rules than the senior Senator from the great State of West Virginia. Rules have always been observed. Some of them are complicated. This happens to be pretty simple, and we all understand it. I want to spend a moment on the materials that have been before us that are being investigated. The materials in question came to the Judiciary Committee just 2 or 3 weeks ago. Those materials raise real questions about whether Mr. Pryor misled the committee about his activities on behalf of the Republican Attorneys General Association, a fundraising organization that I believe raises serious concerns about conflicts of interest. For instance, questions have been raised about whether Mr. Pryor raised money from tobacco companies, while at the same time arguing against pursuing those companies through litigation. I don't know whether this allegation is true or not true. None of us do. I wasn't really prepared to vote. But we should look into it and we should be able to match his statements to the committee with the facts. There are other areas where the documents given to the committee suggest that Mr. Pryor may not have been completely forthcoming at his hearing. We will never get past the partisan bad-feelings that are increasingly apparent in the Judiciary Committee if we cannot even rely on having our rules followed to the extent of carrying out an investigation with materials about which none of us knew existed when we had the hearing on the nominee. On the merits, this is a nominee who has been before us for just a few months. I mentioned the investigation. I mentioned rule 4. But let me go into a couple of the merits from our side and from our point of view. He used his position as Attorney General to limit the scope of crucial civil rights laws like the Violence Against Women's Act, the Age Discrimination In Employment Act, the American with Disabilities Act, the Fair Labor Standards Act, and the Family Medical Leave Act. He said that he doesn't believe that the Federal Government should be involved in ``education or street crime.''

Mrs. FEINSTEIN. I beg your pardon?

Mrs. FEINSTEIN. Mr. Pryor calls Roe v. Wade ``the worst abomination of constitutional law in our history.'' He has written that he could ``never forget January 22, 1973, the day seven members of our highest court ripped out the life of millions of unborn children.'' That is a quote. It is a very strong statement. He has lobbied for the repeal of section V of the Voting Rights Act. After the Bush v. Gore decision, Pryor made the astounding statement, ``I'm probably the only one who wanted [the decision] 5-4 . . . I wanted Governor Bush to have a full appreciation of the judiciary and judicial selection so we can have no more appointments like Justice Souter.'' This is a sitting attorney general taking on a Justice of the U.S. Supreme Court by name. I have never heard of that before. Of course, there is always a first time. It was also an attack on a Justice who was well known as being more moderate than he was expected to be and who does not simply toe a party line. So is Mr. Pryor saying he would want only those judges who remain completely faithful to the ideology of those who choose them? Is he saying that Justice Souter is simply not conservative enough? I think he is. Mr. Pryor has taken positions so extreme that they are at odds with the rest of the Nation's attorneys general. For example, he was the only attorney general to argue against a key provision in the Violence Against Women Act on federalism grounds. So there is a reason we feel strongly about it. My experience is that in appointing someone to the trial bench when that individual has never been a judge is probably a good idea, even if they are an attorney general. One can make some judgments about people who hold political office and who are strong advocates as to whether in fact they can separate themselves from their ideology, whatever that ideology may be. I believe people can do this. I voted for Jeffrey Sutton because I had that belief. In this case, I am not so sure because the rhetoric is so strident and so very intemperate. The Senator from Alabama, who is present on the floor, believes he can, and there are people who believe he can. But I think the jury is out because there is a venture into an attack on a sitting U.S. Supreme Court Justice, there is a characterization of a landmark Supreme Court case as ``an abomination,'' and other things as well. There is an attack on many significant--significant to those of us on this side of the aisle--pieces of Federal legislation. Truly, this is a nomination that deserves and merits debate--an open debate. But I would like the debate to take place with the observation of the rules of the committee and after the investigation that is ongoing is finished. I hope the Senator from North Dakota's importuning to leadership is taken. We don't need to have a cloture vote at this time on this nominee. That cloture vote can come after the results of the investigation are finished--certainly after the Energy bill--because I think if a cloture vote is taken, these arguments I have made on the merits of the case are really going to be dispositive as far as votes on our side are concerned. I thank the Chair. I yield the floor. I thank very much the chairman of the committee.

Mrs. FEINSTEIN. It was a nice thing.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I thank the chairman of the committee. I wanted to say a few words in support of what Senator Cantwell is trying to do. Perhaps those of us in the West are more disconnected from the Beltway than I ever believed, but let me give you a startling fact which will demonstrate market manipulation. The total cost of electricity in California in 1999 was $7 billion. It increased 400 percent in one year to $27 billion the next year. There is no way supply and demand can be responsible for a 400 percent increase. What we now know is that power generators, traders, and marketers manipulated the western energy markets, and the market abuse wasn't simply limited to Enron. Look at these schemes. There are more than we ever knew: Ricochet, Death Star, Get Shorty, Fat Boy, Nonfirm Export, Load Shift, Wheel Out, Black Widow, Red Congo, Cuddly Bear. This was not limited to Enron. It was a widespread series of schemes perpetuated by many companies that supplied and traded in the West. I deeply believe this. The State of California, the California Attorney General's office, and the State's largest utilities compiled the 3,000-page report detailing the pervasiveness of fraud and manipulation in the western energy market in 2000. Then they couldn't present it to FERC. They had to go to a Ninth Circuit Court of Appeals to get the ability to conduct discovery and evidentiary hearings to be able to bring the allegations of fraud and manipulation to FERC. So the whole Federal system is stacked against allowing a State to make a presentation of fraud and manipulation. This report concluded that energy companies intentionally withheld power from the western market, driving prices up and creating false shortages. For example, from August 30 to December 3, 2000, Dynegy shut down one of its units for repairs, yet repairs had already been done prior to August 30. The report's conclusion: The plant was shut down to intentionally drive up prices. Another example. Following an external tube leak, Merit held one of its plants offline for 2 extra days, from October 20 until October 22, 2000, denying the western energy market much needed power and driving prices up. The report also submitted evidence that suppliers bid higher after the California independent systems operator declared emergencies, knowing full well the State would need power and would be willing to pay any price to get it. Further, we learned that suppliers submitted false load schedules to increase prices. One example of this bogus load is demonstrated in an internal PowerX memo, which documents that PowerX entered into a contract with the explicit purpose of overscheduling and underscheduling and for congestion manipulation. Other games were played in the western energy market, including collusion among sellers, sharing of nonpublic generation outage information, and the manipulation of the nitrogen oxide emission market. Just look at one fact. One company, CMS Energy Corporation, has admitted conducting wash energy trades that artificially inflated its revenue by more than $4.4 billion. These round trips accounted for 80 percent of that company's trading that year, in 2001. So 80 percent of the trading of a large company was bogus in that year. The market was rife with fraud and manipulation. Senator Cantwell's amendment attempts to strengthen the Federal Power Act, so that the fraudulent and manipulative behavior we witnessed in the western energy crisis does not go unpunished. The problem is that FERC could not go back. FERC would not accept findings from California to document the fraud and manipulation. California, to this day, has not received $1 of refund, despite settlements. So that is what is really going on out there, and that is a huge problem. To have an Energy bill that doesn't adequately deal with fraud and manipulation is something none of us should vote for. I will tell you why. Under the present regulations, it can and will happen again. These companies will try to do it if they possibly can. Consumers should be protected from fraud and manipulation perpetrated by people who are only motivated by profit, which we know dominated the trading scenario in the western energy market. I can tell you terrible things traders said about shutting off power for the purpose of inflating the bottom line of their company. That is wrong and it should be dealt with. The fact is that FERC has not dealt with it up to this point. So I very strongly support what Senator Cantwell is trying to do. I hope the Senate will accept it because I think the energy title is weak. I hope at a later time to add natural gas to some of the provisions that this bill achieves in terms of increasing penalties in the electricity market. Unfortunately, the bill does not harmonize penalties for the natural gas market, and there is ample evidence of fraud and manipulation as well in the national gas market, specifically with El Paso Natural Gas, and I hope to indicate that in an amendment I will do at a later time. I have tried to truncate my remarks to cooperate with the chairman. I yield the floor.

Mrs. FEINSTEIN. Reserving the right to object.

Mrs. FEINSTEIN. It is a fair description. I have great respect for the chairman of our committee. However, he did not correctly present the California situation. I would like an opportunity to set the record straight.

Mrs. FEINSTEIN. If I may respond, this is an amendment on market manipulation. You, Mr. Chairman, have just said there wasn't market manipulation.

Mrs. FEINSTEIN. I would like to present evidence specifically. I have 18 to 20 disks involving 3,000 pieces of paper which is evidence presented to FERC of market manipulation in the California market. This Senator has done a great service because those of us out west know what happened. What happened is so egregious as to give the senior Senator from California an opportunity to support the amendment of her colleague.

Mrs. FEINSTEIN. I have been patient.

Mrs. FEINSTEIN. I asked for 15 minutes.

Mrs. FEINSTEIN. I will do my level best.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I thank the Senator from Nevada for the courtesy of allowing me to move ahead with some additional remarks on the Chilean and Singaporean free-trade agreements and on the immigration policy that is attached to those agreements. I have expressed my deep concern about the temporary entry provisions of the free-trade agreements on which we are about to vote. I was prepared to support the trade agreements. However, I believe the USTR has made a terrible mistake in negotiating immigration provisions in these trade agreements, and, thus, delving into areas of authority that should have been left to the Congress. I spoke to this to some extent on Friday, and I would like to speak again today because I think this is like peeling an onion. The more you look at it, if you look at immigration law, the more you see the major loophole this agreement is creating. This agreement would create new categories for nonimmigrant visas for free-trade professionals. It would permit the admission, on its face, of up to 5,400 professionals from Singapore and up to 1,400 from Chile each year. That is on its face. It would require the entry for their spouses and children, so they could join foreign workers in the United States. That, of course, makes it less of a temporary visa program. Those visas can be extended indefinitely. They can be renewed year after year after year ad infinitum. The bill would require without a numerical limit the entry of business persons under categories that parallel three other current visa categories: The B-1 visitor visa, the E-1 trader or investor visa, and the L-1 intercompany transfer visa. In fiscal year 2002, the State Department issued more than a total of 5,232,492 visas to foreign nationals under the current temporary visa category that parallels those in the free-trade agreement--5.2 million individuals from foreign countries who come here each year and replace American workers in various pursuits. How many more do we need? This legislation requires the entry of foreign workers in a new way on L-1 visas regardless of whether they are nationals of Singapore or Chile. I don't think most Members realize that. You can get an L-1 visa now under this trade agreement just if you have been employed by a Chilean or Singaporian country. You don't have to be a citizen of that country. This is particularly egregious, and I will explain why a little later. The bill would permit but not require the United States to deny the entry of a free-trade professional if his or her entry would adversely affect the settlement of a labor dispute. It would require the United States to submit the dispute about whether it should grant certain individuals entry to an international tribunal. An international tribunal for the first time that I can recall would determine now under this treaty a sovereign right which belongs to the United States of America. In enacting the Trade Promotion Act, the Congress did not provide the USTR authority to negotiate new visa categories or immigration programs or to impose new requirements on the existing temporary entry system. In fact, the USTR has taken that upon itself. In negotiating these agreements, the USTR has negotiated a perpetual visa category that we as Members will not be able to modify no matter what the circumstances or the economic consequences may be. Employers can renew these new employee visas each and every year under the agreement with no limit while also bringing in every year an additional crop of new entrants to fill up the annual numerical limits for new visas. This makes it possible for foreign employees entering the country on a supposedly temporary basis at the age of 22 to remain until he or she is ready to retire at the age of 70. That is not what temporary visas aim to do. In effect, by voting for these provisions we are adding to the U.S. labor market a continuous supply of 6,800 guest workers a year in addition to the more than 40,000 from Chile and the 30,000 from Singapore who came in last year under the existing temporary work categories. In other words, this is in addition to the 50,000 workers who have already come in from these two countries. I don't believe Members realize that. These workers come in without taking into account the potential impact on U.S. workers. By voting on this agreement, we as Members of Congress are effectively ceding our authority to limit the duration of these visas when it is in the national interest to do so because we can't change a thing. We can't change a comma. We can't dot an ``i''. We can't cross a ``t''. That is fast track. Another problematic provision--and we should be very concerned about this--is that the unlimited L-1 visa category included in the Chile and Singapore agreement does not require that these workers be citizens of either Chile or Singapore. They can be from anywhere as long as they are working for a company right now located either in Chile or Singapore. This means under the agreement, a Chinese or Indian or any other country's multinational corporation with offices in Singapore, for example, can transfer an unlimited number of Chinese or Indian employees to the United States. What happens if the corporation also has offices in countries hostile to the United States or are state sponsors of terrorism? Under these agreements, the corporation may send an unlimited number of such nationals to the United States under the E-1 trader visa and the L-1 intercompany transferee visa category. In other words, these trade agreements create a major loophole through which thousands of foreign workers can come into the country with little scrutiny. I don't believe there is anybody virtually in this Senate who understands that. This is the problem of having the USTR negotiate an immigration agreement. They don't understand it either. And I don't think they really understand what has been accomplished here. Effectively, these agreements permit unlimited entry through Singapore and Chile under the L-1 visa category for any worker anywhere. In negotiating these agreements, the USTR has eviscerated existing requirements that U.S. corporations first demonstrate that there is a shortage of domestic workers in an industry seeking foreign workers. Every one of us knows that unemployment rates are on the rise. In professional and technical services, it is over 6 percent. In computer and mathematical occupations, it is 5 percent. In architecture and engineering occupations, it is 4 percent. In informational technology, it is 7 percent. In financial services, it is about 4 percent. In business and professional services, it is almost 9 percent. When there are all of these vacancies, why are we allowing new sources of low-wage labor into this country when we are not facing a labor shortage in any of these industries today? There is no public interest in keeping Americans unemployed in order to accommodate new guest worker programs that would be established by these trade agreements. Quite the contrary. We face the highest unemployment rate in almost a decade, and I can tell you it is high among these worker categories as well. I think these agreements are going to do no more than foster a race to the bottom where American workers are forced to compete with whatever foreign workers will accept in the lowest wage categories. That is wrong. This trend should be stopped, not exacerbated. In negotiating these agreements, the USTR has expanded the types of occupations currently covered under the H- 1B visa to include management consultants, disaster relief claims adjusters, physical therapists, and agricultural managers--professions that do not require a bachelors degree. This a weakening of what are supposed to be highly qualified and highly skilled workers. Now they are amending this to permit a whole host of unskilled categories. You don't even have to have a higher education to qualify to come in as a skilled worker in a technical field. These agreements lower the skill level in another way, too. In negotiating the agreements, the USTR has lowered the standards for which foreign professionals could enter the United States to work. Under current law, H-1B professionals must exhibit--and this is a term of art--highly specialized knowledge in the occupation for which he or she is seeking a visa. This agreement would require the applicant only to possess specialized knowledge. In other words, they are weakening the requirement. You don't need to be highly specialized, just specialized. And then for some, you don't even need to have a higher education. This distinction is critical because the highly specialized knowledge criteria used under the H-1B program was designed to ensure that employers don't abuse the program to undercut American workers in occupations where there is no skill shortage. I assume that this is a crucial point. To back that up, neither the trade agreement nor the implementing language would enable the Department of Labor to have the authority to investigate or conduct spot checks at worker sites, as they do now with H-1B visas, to uncover instances of U.S. worker displacement and other labor violations pertaining to the entry of foreign workers. So what this agreement is doing is handcuffing the Labor Department and removing from it specific authority that it has now to go out to investigate and to see whether the law is being abused and domestic workers are being replaced purposefully with foreign workers. You would say: Well, is this really necessary for them to have this authority? The answer is absolutely. There have been labor violations involving H-1B visas, and not a few but a lot. These violations have jumped more than fivefold since 1998, according to the Labor Department. Back pay awards for such employees who have been replaced have soared by more than 10 times, jumping from about $365,000 in 1998 to over $4 million in 2002. So we know there is fraud going on. What this bill does is just simply eliminate the regulations to eliminate any investigation as to whether the fraud exists or not. In response to what I have just said about the soaring awards because of fraudulent uses of visas, Labor Department officials have stepped up H-1B investigations. They say there really could be thousands of H-1B workers today who don't file complaints because they fear the loss of their visa. In the last 5 years, Labor investigated 656 complaints involving H-1B visas. What did they find? They found that out of 308 cases that have become final, the Labor Department found 261 H-1B violations. That is almost a two-thirds rate of violation. Of that number, 227 employers owed 1,413 domestic workers who were replaced by foreign workers almost $8 million in back wages. This temporary work visa system gives employers tremendous power over immigrants. More than 1 million people already are employed in the United States under visas for skilled workers. The growing trend in H- 1B violations is proof that some companies will, in fact, violate and have violated the worker protection laws to protect their bottom line. This is happening now, and in a tough economy it is going to happen more often. Those of us who are elected by workers to protect them, if we vote for this agreement, fail to do our job because this agreement weakens protections. The most offensive aspect of these provisions is that the USTR has bargained away our sovereign right to set the criteria for admitting foreign visitors and workers to our country. Under the agreement, if Congress determines that the visa categories in this agreement should be subject to numerical limits or labor certification, we could well be subject to defending that decision before an international tribunal. So an international tribunal would decide the sovereignty of the United States of America to make these decisions. During a time when our country is preoccupied with the threat of terrorism on our soil, what protection do we have to prevent individuals from purposely utilizing and abusing this visa process? In essence, control over employment-based visas will effectively be taken out of the hands of Congress and placed in the hands of corporate executives, the USTR, and countries that are parties to these types of agreements. That is, frankly, unacceptable to me, and such proposals should be rejected by Congress. I don't think this Congress should relinquish its plenary authority over immigration to any administration, whether it be Democratic or Republican, nor to any country that is party to a trade agreement. It is hard to imagine that against the backdrop of the highest unemployment rate in almost a decade, this administration has negotiated what, in essence, is a permanent guest worker program. That is the hard fact of what is in this bill. Today in our Nation, 15 million people are unemployed, underemployed in part-time jobs out of economic necessity, or have given up looking for work altogether; 9.4 million are considered officially unemployed. In California, 1.1 million are out of jobs. The average person has been out of work for 20 weeks, a phenomenon this country has not seen since 1948, in over 50 years. Yet while we are faced with unprecedented unemployment, we are negotiating and accepting a permanent guest worker program. Beneath the aggregate unemployment numbers is an even more disturbing trend. Unlike past instances of high unemployment, the ranks of the jobless are increasingly populated by highly skilled, college-educated workers. Workers who typically had little difficulty finding a new job are becoming discouraged by their lengthy stay on the unemployment roll. A recent CBS news segment on the Nation's unemployed captured so poignantly the lives behind the numbers. The Presiding Officer should know that this CBS clip was actually done in his State. The news footage shows a line of cars stretching out of sight down a flat two- lane road in Logan, OH, where the jobless and struggling families were waiting for the twice-a-month distribution of free food by the local office of America's Second Harvest. The head of the agency said: We are now seeing a new phenomenon. Last year's food bank donors are now this year's food bank clients. CBS reporter Cynthia Bowers observed: You could call it a line of the times, because in a growing number of American communities these days, making ends meet means waiting for a handout. There are many reasons for the persistent weakness in the labor market. But I think we are making the situation worse by agreeing to the immigration provisions set out in these trade agreements. Increasingly, American workers have expressed fears of losing their positions to foreign workers who are paid considerably less and whose ability to remain in the United States is often contingent upon their not making trouble from their employer. I must tell you, I didn't believe this 5 or 6 years ago because I was importuned by one CEO after another to vote to increase the quota on H-1B visas. They all supported me, that there was no abuse. It was only when we began to look deeply into it that we found there was abuse. Today, more and more out-of-work technology workers are filing complaints with the Government or going to court to protest perceived abuses of temporary visa programs. We cannot simply blame the foreign workers for causing Americans to lose their jobs. It is shortsighted, behind-the-scenes policies such as these visa provisions, negotiated in secret, without any meaningful public hearing, included in trade agreements in small print, that invite a dependence on cheaper, more pliable foreign labor, and thus threaten American jobs. The scarcity of jobs has left many skilled immigrants more dependent on their employer and less willing to quit if trouble starts. The abuses have been particularly widespread in the high-tech industry, which used H-1B visas to bring in tens of thousands of programmers and other professionals. Remember, it is not just these workers; there are another 5.2 million coming in each and every year. They come in and companies seize upon them. Let me give you an example of testimony that is going on right now in the Judiciary Committee in the Immigration Subcommittee. A woman named Pat Fluno, a computer programmer and former Siemens employee, is testifying that she and 14 of her colleagues were required to train their foreign worker replacements before U.S. workers were laid off. Their replacements were foreign nationals on L-1 visas. That is exactly the visa program we are establishing in this trade agreement. They were paid one-third the salary the U.S. workers were making. There is no requirement that L-1 visa employers pay the prevailing wage. Ms. Fluno was making $98,000 a year. Her replacement is making $32,000 a year. This is Siemens, and that is what it did to 15 workers. Unlike U.S. workers, foreign workers on L-1 visas don't pay income tax. Ms. Fluno, before the Immigration Subcommittee of Judiciary right now, estimates that the Federal Government and the State of Florida would lose over $1.1 million in income taxes as a result of layoffs of the 15 employees. The international consulting firm that Siemens used to obtain the foreign workers knew that the U.S. workers would be laid off, so they did not use the H-1B visas to bring the workers in; they used the underregulated L-1 visa to get around the existing employer protection of the H-1B visa program. That is what we are creating more of in this bill. This type of abuse really should stop because if we don't stop it, it is going to go on. Look, if you pay an American worker $98,000 and you can bring in a technical worker and pay them $32,000, and it is OK, how would any of our workers ever be able to own a home and raise their kids? Temporary professional workers are often paid less than American workers despite requirements that they be paid prevailing wage rates. Employers seeking to hire H-1B workers can base their prevailing wage rates on third party salary surveys up to 2 years old. An H-1B worker in a job since the beginning of 2003 might still be getting the 2001 prevailing rate. I only use this because H-1B is a much more regulated program than the L-1 visa program that is in this bill. You see how they can kind of gerrymander this program by using out-of-date prevailing wage rates. In December of last year, a New Jersey-based company, Pegasus Consulting Group, was ordered to pay $231,279 in back wages to 19 former employees. Most of them were Indian nationals. The judge also required the company to pay $40,000 in civil money penalties for violating the prevailing wage provisions of the H-1B visa rules. The judge found that some of the employees had gone several months without being paid. So this is happening today. Our Nation's growing dependence on foreign workers is not--and I originally thought it was--spurred by a lack of skills or education in the United States. In June of this year, an estimated 1.286 million bachelor's degrees were conferred all across the United States, along with 436,000 master's degrees, 80,400 professional degrees, and 46,700 doctoral degrees. In addition, an estimated 633,000 associate's degrees were awarded. We have told, and continue to tell, our young people to acquire more education, to get a skill, to remain competitive in the job market, and they are doing so. If an advanced degree, years of experience, and a good work ethic are not enough to land a job and to keep a job, what does the future hold for the American worker? Now, for some, the answer to that question is really pretty tragic. Just in April of this year, Kevin Flanagan, a 41-year-old software programmer, took his life in the parking lot of Bank of America's Concord Technology Center on the afternoon he was told he lost his job. His father said it was the ``straw that broke the camel's back.'' Flanagan knew that his employer, Bank of America Corporation, as other corporations weathering the economic storm, was cutting high-tech jobs and sending them overseas. He applied for other jobs at the bank but didn't receive responses. His father said: ``He felt like he was fighting a large corporation that pretty much didn't care.'' Kevin Flanagan's death, which is a suicide, underscores the anxiety that has swelled among technology workers throughout this land, at the Bank of America in particular, and elsewhere, as more businesses shift high-tech jobs to foreign workers, even as they cut those jobs in the United States. To add insult to injury, some employers are requiring U.S. workers to train their replacements before they are laid off, and then they see where their replacement worker earns one-third the salary. So I don't think we should gamble with the lives and livelihoods of American workers with an agreement the consequences of which are so problematic. I really find expanding the least regulated of all the visa categories at a time of economic distress in the United States, at a time when we have so many of our own highly skilled domestic workers out of work and looking for a job, somewhat cynical. To do this in secret, not do it by virtue of lawmakers who are elected, who know their States, who hold hearings, and then make adjustments to visas is really stealth and very ill advised. We should never use immigration law as a bargaining chip to negotiate bad trade deals. We should never have offered visas to Chile and Singapore as part of these trade deals, and we should not trade American jobs as part of a free-trade agreement. That is what we are doing in this trade agreement. Bear in mind, we already have tens of thousands of workers, highly skilled workers, coming in from Chile and Singapore every year under the H-1B visa. What is cynical here is that the L-1 visa does not have the protections the H-1B visa has, and the Labor Department cannot go out and do an investigation and, therefore, cannot certify that no American worker is being replaced in his or her job. So I have to accept that the reason they are doing the L-1 visa is because they want to do just that: replace American workers with foreign workers. Remember, you can have a Chilean-owned company or Singaporean-owned company, I believe, not necessarily in Singapore, that can qualify under this agreement. The fast-track process should not undermine Congress's authority under the Constitution, and that is what this agreement does. This is a bad trade bill, a bad precedent, and if this Congress does not stand up for its right to protect the American people, who will? We asked in the Judiciary Committee for more time. We were denied more time. We asked to send this bill back to the administration and ask them to sever the immigration provisions from the trade provisions, and we were refused in our request. I do not think because immigration law is complicated and every visa program has with it a different set of rules, regulations, procedures, and protocols and that creating more of one of the weakest, in terms of protecting American workers at a time when American workers need the most protection because of rampant unemployment--the highest unemployment in the 10 years I certainly have been in the Senate--seems to me it is not timely, it is not economically productive except for the bottom line of some companies. I believe in these remarks I have shown where many of these visas are being misused. I have shown where there is fraud, where there have been back payments made. And I have shown where already without this program, year in, year out, 5.2 million technical foreign workers come into this country without this addition. I conclude by saying that I think the real angst, if I may use that word, of this bill is for us to accept the abdication of our constitutional authority and power over immigration law. I cannot do that because I represent a very large State that is going to be affected by this trade agreement, and a State where we have 1,100,000 people out of work, a State where the unemployment insurance trust fund is going to be in deficit at the end of next year and workers will not get anything when unemployed. I think it is not good public policy at a time of economic deprivation for millions of Americans to be bringing in workers who will take a third of the salary of their American counterpart, displace that counterpart, not complain and to, by law, say to the Department of Labor of the United States of America: You cannot investigate any one of these complaints, and you cannot make a determination whether, in fact, an American worker has been replaced unfairly by a foreign worker. We should not do that. I thank the Chair. I yield the floor. Amendment No. 1386, As Modified

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I come to the floor to make some comments on the Singapore and Chile trade agreements. Let me begin by saying I think it is really a shame that an otherwise good trade agreement with both Singapore and Chile, which I would otherwise support, I cannot support because immigration provisions were added to the bill, I believe contrary to the plenary powers of this Congress. But before I discuss the trade agreement, I would like to say at the outset that, as I see it, the fast-track process is a real problem. Under fast-track rules, there is limited debate, expedited procedures, deadlines, and no amendments. Congress can only vote up or down. While the fast-track procedures provide for consultations with Congress, there is really no guarantee that the President or the U.S. Trade Representative will ultimately respect the opinions and advice of Senators and House Members. In other words, we lose all ability to influence the content of a trade agreement negotiated under the fast- track procedures. For me, from California, a place that has 36 million people and is either the fifth or sixth largest economic engine on Earth, trade agreements have major implications. I have always had a relationship with the USTR that apparently I do not have with this USTR, because of the size of California economically, and the interests internationally, that at least I be consulted in a meaningful way. In this case, consultation, as I understand it, constituted staff briefings. I wish to say, my staff does not cast a vote. I cast the vote. So if anyone is going to consult with the senior Senator from California, it ought to be with the senior Senator from California. None of those consultations took place. Not only that, I have sat on the Immigration Subcommittee for 10 years now and you, Mr. President, are the new chair of that subcommittee. To the best of my knowledge, that subcommittee as a whole--maybe individual members have been able to have an impact, but as a whole, the subcommittee has not been able to have an impact. So any hearing we might have is de minimis in impact because the decision is already made. I am told by my staff that by the time any meaningful briefing took place, the agreement had been signed and sent over here. That is not the way to do business with somebody like me, who has 36 million people, a huge economy, and all kinds of issues in virtually any trade agreement. Fast track really provides a disadvantage for the people of California. When I was lobbied to vote yes on fast track, I said to virtually every industry in California: Do you realize that if a President or a USTR negotiates an agreement, they can negotiate an agreement and let California suffer all kinds of repercussions and there is nothing your elected representative can do about it? That is fast track. When you have the fifth or sixth largest economy on Earth, it means a great deal. But, having said that, let me go to the immigration provisions of this free-trade agreement. The administration again insists it has had a number of discussions on these. Perhaps, again, they have with certain Members. They certainly have not with me. But immigration policy has long been well within the purview of Congress, and I believe it should stay there. Indeed, the Constitution gives Congress this power, and I do not think it is wise to give up that power to another branch of Government in this trade agreement or in any other. These agreements, as I read them, would create sweeping and permanent new categories of visas, regardless of whether Congress would deem these new entries valid or beneficial to our Nation's economy and welfare. Even more important, regardless of whether Congress might want to change these new categories at some later date, we cannot do it. Specifically, I oppose these agreements because they would create entirely new categories of nonimmigrant visas for free-trade professionals, thus permitting the admission of up to 5,400 professionals from Singapore and up to 1,400 professionals from Chile each year. They would permit an indefinite extension of these visas. They would require the entry of spouses and children accompanying or following to join these professionals without limitation. So any number of family members can come in. They would require, without numerical limit, the entry of business persons under categories that parallel three other current visa categories. In other words, require their entry under other categories, the B-1 business visitor visa, the E-1 treaty trader or investor visa, and the L-1 intracompany transfer visa. These agreements would permit but not require the United States to deny the entry of a free-trade professional if his or her entry would adversely affect the settlement of a labor dispute. They would require that the United States submit disputes about whether it should grant certain individuals entry to an international tribunal. So if there was a pattern in our entry practice, we would have to submit that to an international tribunal, and a international tribunal would decide a sovereign right of the United States of America. That, to me, is unacceptable. These agreements are troubling in their permanence, their inflexibility, and their lack of congressional participation or oversight. The fact is, current law already permits foreign nationals to do all the things specified under the trade agreement. In fact, several thousand nationals from Chile and Singapore enter the United States each year. To the extent that changes need to be made, Congress can choose to make them. So this raises the question, Why, then, do these provisions need to be in a trade agreement? Perhaps the answer can be found by taking a closer look at these trade agreements, and more specifically at how exactly the agreements differ from current law. There are no numerical limits for any of the visa categories except the new H-1B(1) visa. There are no labor certifications under this bill. This is very significant. The United States can impose no prior approval procedures, petitions, labor certification tests, or other procedures of similar effect. Under the visitor visa provisions: A party shall normally accept an oral declaration as to the principal place of business and the actual place of accrual of profits. Where the party requires further proof, a letter from the employer attesting to these matters would serve as sufficient proof. These are all contained in the trade agreements. Thus, the facts speak for themselves. But behind the abstraction, the theories, and the statistics of the free-trade agreements we are considering today, there is one inescapable factor, and that is the working men and women of this country and what is going to happen to them. As I said in the Judiciary Committee, I am not the Senator from Chile or Singapore. I am the Senator from California. The people of my State are working in produce-rich fields. They are building new technologies for tomorrow. They are fiber optic engineers, computer programers, and physical therapists tending to the needs of others, all of whom are going to be affected by the immigration provisions of this bill. I know of engineers who have been out of work for more than a year who have sent out hundreds of resumes and are still looking for a job-- machinists, carpenters, and engineers by the tens of thousands looking for work in my State. Let me give you a couple of cases. Jenlih Hsieh is a 50-year-old U.S. citizen from Taiwan with a master's degree and more than 12 years of experience in Unix systems administration, filed a complaint with the Equal Employment Opportunity Commission, the U.S. Department of Justice and in Santa Clara County Superior Court. Hsieh alleges that SwitchOn Networks of Milpitas fired him after 6 months and replaced him with an H-1B worker. According to the complaint, the H-1B worker was earning $30,000 less a year, had only a bachelor's degree and much less experience. Why is this important? It is important because this bill provides that the Labor Department cannot do an investigation to see if the complaint is correct. The Labor Department cannot make a certification that there is no replacement of an American worker. If the administration chose to add this, the message it should send to each and every one of us is the administration fully contemplates that American workers are going to be replaced by the immigration provisions of this treaty and does not want their Department of Labor to be able to check that out and keep records to see if these are, in fact, sustainable complaints. Bob Simoni, 39, lost his consulting job at Toshiba American Electronics Components in Irvine in March 2002. Simoni, who has an MBA from the University of California-Los Angeles, had worked at Toshiba as a contract engineer for 2 years installing software. He came to work in February to find everyone packing their boxes. Toshiba was outsourcing the division to an India-based technology services company, Infosys, which employs H-1B workers in the United States. Simoni said Toshiba asked him to stay for 3 weeks to do ``knowledge transfer'' with Infosys employee Rakesh Gollapalli, who told him he had an H-1B visa. It hurt to be training someone who for all practical purposes was replacing him, and it felt wrong, Simoni said. You and I, Mr. President, are allowing this to happen with the H-1B visa being so extensively used in the United States, and we need to change that. The Boston Globe published an article June 3, 2003 that also reveals the fear many American workers have of losing their positions to H-1B and L-1 temporary workers. The story of John Malloy illustrates the experience of many Americans in the fields of technology, information, and engineering: Unix system administrator John Malloy used to work for NASA, but hasn't had a steady job in over 2 years. ``I'm 40 years old, and my life is ruined,'' he said. Malloy said his last job was at a local healthcare company, where he helped train two workers from India. He said the Indian workers are still on the job, but he was laid off. Mallory told the reporter: ``I'm an open, fair-minded world citizen who loves everybody . . . but I'm really starting to get frustrated.'' This trend prompted The San Francisco Chronicle to publish articles on the topic on both May 25 and June 2, 2003. The articles describe the confusion surrounding the use of L-1 visas, citing confusion among companies, labor lawyers, and government agencies as to what type of use of the visas is legal. They also show increasing hostility from American high-tech workers surrounding L-1 visas. One example is the case of the dozen computer programmers who were laid off from Siemens Information and Communication Networks in Lake Mary FL, and replaced with foreign workers using the L-1 program. Michael Emmons left Siemens last fall just before his job there was to end. Emmons had worked as a contract computer programmer for the company for 6 years, first in San Jose, CA, and then in Florida. He said, ``This is what they call outsourcing. I call it in-sourcing. Import foreign workers, mandate your American workers to train them, they lay off your Americans.'' This is what we are allowing to happen. My view is that it is not a problem during boom time because there are enough jobs for all. But what happens when we have these rich programs is that when tough times come, employers succumb to the lure of being able to save $30,000 or $40,000 a worker. We are passing this treaty in the middle of huge unemployment in our country. We are creating a sinecure for these workers from other countries. I think that is a mistaken priority. Last week, I joined with my colleagues on the Judiciary Committee, Senators Sessions of Alabama and Graham of South Carolina, urging the President and the U.S. Trade Representative to withdraw the legislation implementing the Free Trade Agreements with Chile and Singapore. We also asked that the administration renegotiate or reconfigure the trade agreements without the immigration provisions and re-transmit a new version of the implementing legislation to Congress. I am extremely trouble that despite these concerns, which were expressed by several members of both chambers of Congress, the President sent Congress implementing legislation that would effectively expand the temporary admissions program without the express consent to do so. Let me say this: I very much doubt that the USTR is any kind of an expert on immigration. I must tell you that I have heard rumors that this was to be the precedent for some 50 other treaties to come after it. I think if this Senate and the House were to allow this to happen, we don't deserve to hold these jobs. I don't believe that this Senate should relinquish its plenary power over immigration to any administration nor to any country that is party to a trade agreement. Trade agreements are simply not the appropriate vehicle for enacting immigration law. Such agreements are meant to have a permanent impact. They cannot be amended or modified by subsequent legislation should Congress need to alter these provisions. I am not saying we should capriciously alter these provisions. I am saying that if the economic conditions change, the United States needs to respond to those economic changes rather than to be frozen into a pattern of dozens of agreements which freeze for all time certain things that may be proved to be inimical to our national interests. A recent commentary by Paul Magnusson in BusinessWeek asked the question I think we should all ask ourselves: ``Is a stealth immigration policy smart?'' Magnusson wrote: Complex trade agreements, which increasingly affect the entire U.S. economy and require changes in U.S. laws and social policies, should not be considered in secret, or in isolation from all other legislation. That is exactly what happened with this agreement. The result of this kind of process is going to be an unwieldy patchwork of conflicting permanent law that will encumber an already overburdened immigration system, while exacerbating the growing backlogs of people already seeking to enter the United States. Such legislation will ultimately tie our hands when the national interest demands an alteration in the immigration provisions on which we are about to vote. Establishing separate policies and laws for different countries makes the day-to-day implementation more complicated and susceptible to error and abuse. And that is exactly what this does. Every country will have its own set of immigration laws, which can last forever under the terms of the treaty. How can any INS ever administer that? I have other concerns with the Trade Representative's decision to include so prescriptively the immigration provisions at hand. The Office of the U.S. Trade Representative has not demonstrated the need for negotiating these temporary entry provisions, nor does the office provide any evidence that current immigration law would be a barrier to meeting the United States obligation in furthering trade and goods and services. In fact, current law is sufficient to accommodate these obligations, as evidenced by the millions of temporary workers who enter the United States each year. Just listen to the numbers: In just 2002, 4,376,935 foreign nationals entered under the B-1 temporary business visitor visa; 171,368 entered under the E treaty-trader visa; and another 313,699 entered under the L intracompany transfer visa; and an additional 370,490 entered the United States under the H-1B professional visa. If you add all of these up, we have over 5 million people just last year coming in under these temporary visas, of which probably half become permanent. And that is in addition to the regular immigration program. In all, the United States admitted a total of 5,232,492 foreign nationals under the current temporary visa categories. Of these numbers, 40,461 temporary business professionals entered from Chile and 29,458 entered from Singapore. What is my point? My point is, there already is enough room to absorb under present visa categories. Over 40,000 from Chile and 30,000 from Singapore came in last year alone under these visa categories. Yet the USTR saw fit to say: It isn't enough, Senate and House. We are going to impose another permanent program. Free-trade visas should not be indefinitely renewable, and I am not going to vote for one that is. Under the trade agreements, the visas for temporary businesspersons entering under all the categories in the agreement are indefinitely renewable. So this is what transforms what, on paper, is a temporary visa-entry program into a permanent visa-entry program. While the trade agreements require temporary professionals to come in under the overall cap imposed on the H-1B visa, each visa holder would be permitted to remain in the United States for an indefinite period of time. That means permanent. Thus, employers could renew their employees' visas each and every year under the agreement with no limits, while also bringing in new entrants to fill up the annual numerical limits for new visas. So the thing spirals and expands exponentially. This effectively would obliterate Congress' ability to limit the duration of such visas even when it is in the national interest to do so. Thirdly, the agreement provides insufficient protection for workers, both domestic and foreign. Today, in our country, 15.3 million people are unemployed or underemployed in part-time jobs out of economic necessity or they have given up looking for work. Of that number, 9.4 million are considered officially unemployed. These unemployment figures are the highest in a decade, and yet we are doing this program now. In California, 1.17 million people are out of work. In the San Francisco Bay area, the technology boom and subsequent bust has created a huge pool of unemployed skilled labor. In San Jose alone, 47,160 people--or nearly 10 percent of the population-- are looking for jobs. More and more out-of-work technology workers are filing complaints with the Government or going to court to protest perceived abuses of temporary visa programs. And yet the administration has seen fit to push through a free-trade agreement with immigration provisions of which very few of us could predict the consequences. Although employers are, by and large, good actors, the provisions in the implementing legislation would expose many more workers--and don't forget this--to displacement, to wage exploitation, and to other forms of abuse. These provisions, as drafted in the trade agreement, would increase the number of temporary foreign workers exposed to exploitation and leave more to face an uncertain future. By making the visas indefinitely extendable, albeit 1 year at a time, these workers will remain in limbo with year-to-year extensions of their stay. Despite these concerns, the USTR has seen fit to push through a free- trade agreement with immigration provisions that significantly weaken the U.S. and temporary foreign worker protections under current immigration law in several ways. First, the provisions would expand the types of occupations currently covered under H-1B to include: management consultants, disaster relief claims adjusters, physical therapists, and agricultural managers-- professions that do not require a bachelor's degree. Nor would employers be required to demonstrate a shortage of workers in these professions before hiring foreign nationals under the agreement. This opens the door to the inclusion of new occupations in the trade agreement that are not currently included in the H-1B program. In a sense, what this means is, it is a special program through which you can replace an American worker, pay less for that worker, and keep that worker so that worker isn't going to complain because if he or she does, the visa is not going to get renewed the next year. And if that worker succumbs to any kind of exploitation, his family comes over, her family comes over, and they have a lifetime sinecure, not only with the company but within the United States. No American worker has that. The current H-1B program defines a specialty occupation as one that requires the application--and this is important--of a body of highly specialized knowledge. That is there for one reason, to ensure employers don't abuse the program to undercut American workers in occupations where there is no skill shortage. What this agreement does is delete the word ``highly.'' So that would lower the standard for admission by broadening the definition of specialty occupation to include any job that requires the application ``of a body of specialized knowledge.'' It is a significant weakening to allow less specialized workers to come in and, I believe, to replace American workers at less money. Neither the free-trade agreement nor the implementing legislation require the employer to attest and the Department of Labor to certify that the employer has not laid off a U.S. worker either 90 days before or after hiring the foreign worker before the foreign national is permitted to enter the United States. Why do you suppose that is in there? That is in there so any American employer that wants to can keep an American worker until they can replace them with a foreign worker at less money and then do so. Because those simple precautions that made this more difficult to do are gone. Nobody should believe, when they vote for this legislation, that it is not a foreign-worker replacement program. I have just given the documentation that indicates exactly how it is going to be done. Once you eliminate the labor certification, you eliminate the requirement that the Department of Labor makes an investigation to verify the employer's attestation is accurate and truthful before permitting the entry of a foreign national. Labor certifications are expressly prohibited under this trade agreement. Again, it is the foreign worker employment program in the United States displacing American workers, and this is how to do it. Moreover, the implementing provisions limit the authority of the Labor Department by providing that it may review attestations only for completeness and only for inaccuracies. So the screw is being tightened on the Labor Department. You can't investigate, you can't certify, and you can only review the application to see whether it is complete and accurate. To add insult to injury, you have to provide the certification mandatorily within 7 days. So neither the trade agreement nor the implementing language provides the Department of Labor authority to initiate investigations or conduct spot checks at worksites to uncover instances of U.S. worker displacement and other labor violations pertaining to the entry of foreign workers. It is really bad. This is troublesome, given that in the last 2 fiscal years the Department of Labor investigated 166 businesses with H-1B violations. As a result of those investigations, H-1B employers were required to pay more than $5 million in back pay awards to 678 H-1B workers. That is proof of what is going on. There is proof that companies do this. This is not new thought. I am not reaching to find a reason. This is happening. And in a tough economy, it is going to happen more. Those of us who are elected by workers to protect them fail in our obligation to do so. While the administration has included a cap on the number of professionals entering under the H-1B(1) category, there are no such limitations on the number of temporary workers entering on other visa categories, including the B-1 visitor visa, the E-treaty/investor visa, and the L-1 intracompany visa. None of these categories are numerically limited under the agreement. Once enacted, Congress may not subsequently impose caps on these categories for nationals entering pursuant to this agreement. The trade agreement expressly prohibits the imposition of labor certification tests or other similar conditions on temporary workers entering from Chile and Singapore. I am amazed the Governments of Chile and Singapore want this. I am amazed they want their people to come in and face exploitation in the United States. While Congress could certainly correct some aspects of the law implementing the trade agreements, it would be limited in what it could do by the underlying trade agreement itself. For example, if Congress decided to better protect U.S. businesses and workers by amending the laws governing the L-1 visa category to require a labor certification or a numerical limit before a foreign worker from Chile or Singapore could enter the United States, it would not be able to do so. Both are plausible options for dealing with perceived abuses in the visa category. However, both trade agreements provide ``neither party may, A, as a condition for temporary entry under paragraph 1, require labor certifications or other procedures of similar effect; or, B, impose or maintain any numerical restriction relating to temporary entry under paragraph 1.'' Again, there is something a little insidious in this, in the formulation of a new program with these specific specifications in view of the fact of the more than 50,000 Chilean and Singaporean workers coming in in our other business visitor visa categories. So the significance of this is creating a new program and making it permanent and taking out any meaningful labor certification. I figure every one of these people can replace an American worker for less money. Otherwise, why do this? These provisions significantly limit congressional authority, A, to establish labor protections when warranted and, B, to limit the number of visas that could be issued to nationals in Chile and Singapore, should we deem it is in the national interest. I don't think we should relinquish this constitutional authority. It is really for this reason, on behalf of the millions of Americans who are unemployed and underemployed and particularly in these exact categories, I cannot tell you the workers trained with graduate degrees being replaced, with families. And they can't find jobs. And we fall right into the trap and produce an agreement that is going to say: Labor Department, the only thing you can check is the accuracy of an application for name, address, and phone number, and whether it is all filled in, and then you must certify it within 7 days. And John Smith, who has worked in the company for 10 years, has a graduate degree, gets to train this worker, who is paid $30,000 less--and I gave you actual cases where this is happening--and the worker goes home to a mortgage on a home and a car and three kids in school. Is this what we are elected to do? I am not going to do it. If I could filibuster, I would filibuster it. I am really angry about it because it is sleight of hand. There was no meaningful consultation. Mr. Zoellick never picked up the phone and called me--or his No. 2, 3, 4, or 5--and said: This is what we are thinking of doing. I know you in California have the highest unemployment in 10 years and there has been a high-tech bubble burst. I know a lot of your professionals are out on the street. What do you think of this? I would say: No way, Jose. So I am mad and I hope every working man and woman in this country is mad, too. I am mad because--Mr. President, you know, as you were in committee--we asked to send it back. We were refused. And there is no delay. Bingo, it is out on the floor. It is going to be ramrodded through this body. Well, one thing I have learned is that the working men and women of this country are not stupid. Of all these visitor visas, we have 5 million granted in just a year. People are going to catch on. The word is going to get around. I very much regret that the administration won't eliminate the immigration section. This would be a perfectly good treaty without them. Five million people came in last year under the H- 1B visas--5 million. Plenty of room. We don't need to create a new permanent program, tighten the housing supply, tighten the school supply, bring in all these families, and not be able to take care of our own. I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to offer an amendment aimed at preventing and punishing a terrorist act at one or another of our Nation's 361 seaports. This amendment is a stripped-down version of S. 746, the legislation I introduced with Senators Kyl, Chambliss, and Schumer. The provisions of this amendment have a de minimis cost. The Technology and Terrorism Subcommittee of Judiciary, both under Senator Kyl's leadership and also under my leadership, held some of the initial hearings on port security. Of course, we found very early on what others have found; that is, our ports are really not equipped to, A, handle the challenge of terrorism, and, B, to do so in a way to protect the American people. This legislation builds on amendments made to our laws in the past year but goes further than those changes to ensure the security of our seaports. We have found that many of our criminal laws have major loopholes in them and really do not take into consideration crimes that take place aboard ships. I have shown this amendment to the staff of Senator Hollings. We have shown it to Senator McCain. Yesterday, I went through it with Senators Grassley and Baucus of the Finance Committee, and none of them indicated any objection or problem. Specifically, this amendment would make it a crime for terrorists to attack a port, or a cruise ship, or to deploy a weapon of mass destruction at or through a seaport. It would make it a crime to put devices in U.S. waters that can destroy a ship, or cargo, or interfere with safe navigation or maritime commerce. It would update our Federal criminal piracy and privateering laws and increase penalties. It would make it a crime to use a dangerous weapon or explosive to try to kill someone on board a passenger vessel. It would make it a crime to fail to heave to--that is, to slow or stop a vessel--at the direction of a Coast Guard or other authorized Federal law enforcement official seeking to board that vessel, or to interfere with boarding by such an officer. It would make it a crime to destroy an aid to maritime navigation, such as a buoy or a shoal breakwater light maintained by the Coast Guard if this would endanger the safe navigation of the vessel. It would make it a crime for a terrorist or a criminal to try to attack U.S. citizens or U.S. marine life by putting poison in the waters offshore. It would require the Attorney General to issue regulations making it easier to determine the extent of crime and terrorism at a seaport, and improve communication between different law enforcement agencies involved at ports. In addition, this amendment would help improve physical security at seaports by ensuring greater coordination. In particular, and most importantly, it would designate the captain of the port as the primary authority for seaport security at each port. This would enable all parties involved in business at a port to understand who has final say on all security matters. The amendment would help ensure that we devote our limited cargo inspection resources in the most efficient and effective manner. For example, it would impose deep monetary sanctions for failure to comply with information filing requirements, including filing incorrect information. The current penalty is only a few thousand dollars. The Interagency Commission on Crime and Security in U.S. Seaports found that about half of the information on ship manifests is inaccurate. Let me repeat that--half of the information on ship manifests is inaccurate. This means that many manifests are sloppily done. We cannot afford that. Finally, the amendment would require Customs to come up with a plan to expand its container security initiative and make better use of its scarce inspection resources. This would help push U.S. authority beyond our Nation's borders and improve our ability to monitor and inspect cargo and containers before they arrive near American shores. If a weapon of mass destruction arrives at a U.S. seaport, it is too late. Let me provide a couple of examples of why we need to pass this legislation, and do it fast. Our whole bill is in the Commerce Committee, and Senator McCain has agreed--I think in September--to schedule a hearing on the remainder of the bill. But, for purposes of this amendment, what we have done is strip out those sections of our larger bill where we believe, first of all, there is not much cost and, second of all, where we believe that it is important to get started. Today, if a person blows up an airplane, he commits a crime. However, if he blows up an oil tanker, he does not commit a crime--unless he is doing it to injure someone with a commercial interest in the vessel. In addition, if a person distributes explosives to a non-U.S. national, he commits a crime. But if the same person sows mines in the San Francisco Harbor, he does not commit a crime. The amendment we offer today will close these loopholes, ensuring that our criminal laws are updated to deal with the current terrorist threat. Currently, our seaports are the gaping hole in our Nation's defense against terrorism. According to the U.S. Bureau of Transportation Statistics, 13 million containers--those are 20-foot equivalent units-- came into U.S. ports in 2002. However, the Government inspected only about 2 or 3 percent of these containers. The rest were simply waived through. In addition, in almost every case, these inspections occurred after the containers arrived in the United States. The problem is a single container could contain 60,000 pounds of explosives. That is 10 to 15 times the amount in the Ryder truck used to blow up the Murrah Federal Building in Oklahoma City. And a single container ship can carry as many as 8,000 containers at one time. So containers can and will be easily exploited to detonate a bomb that could destroy a bridge, a seaport, or other critical infrastructure, causing mass destruction and killing thousands. Worse, a suitcase-sized nuclear device or radiological ``dirty bomb'' could also be installed in a container and shipped to the United States. The odds are that the container would never be inspected. And even if the container was inspected, it would be too late. The weapon would already be in the United States, most likely near a major population center. In addition, any attack on or through a seaport could have devastating economic consequences. Excluding trade with Mexico and Canada, America's ports handle 95 percent of U.S. trade. Every year, our ports handle over 800 million tons of cargo valued at approximately $600 billion. In its December 2002 report, the Hart-Rudman Terrorism Tack Force said something interesting: If an explosive device were loaded in a container and set off in a port, it would almost automatically raise concern about the integrity of the 21,000 containers that arrive in U.S. ports each day and the many thousands more that arrive by truck and rail across U.S. land borders. A three-to-four- week closure of U.S. ports would bring the global container industry to its knees. Megaports such as Rotterdam and Singapore would have to close. . . . Trucks, trains, and barges would be stranded outside the terminals with no way to unload their boxes. Boxes bound for the United States would have to be unloaded from their outbound ships. Service contracts would need to be renegotiated. As the system became gridlocked, so would much of global commerce. We have worked on this bill with a large number of port people over a substantial period of time. This has not been quickly put together. I thank the Justice Department, the Coast Guard, Customs, the Transportation Security Administration, and leaders of ports in my home State for their assistance with this legislation. I also thank the working group that helped put our full bill together. This group includes Dick Steinke, executive director of the Port of Long Beach; Rob Quartel, CEO of Freightdesk Technologies; Charles Upchurch, president and CEO of SGS Global Trade Solutions; Jason Clawson, president of JBC International; Stephen Flynn, Senior Fellow, Council on Foreign Relations; Michael Nacht, dean of the Goldman School of Public Policy; Kim Peterson, Executive Director of the Maritime Security Council; and Amanda deBusk, a member of the Interagency Commission on Crime and Security in U.S. Seaports and former Assistant Secretary for Export Enforcement, the Department of Commerce. Mr. President, this has been vetted. We have passed it through all of the applicable Federal agencies. We must close these loopholes. We must tighten these criminal penalties. We must make one person in charge of security at every port so every agency isn't stumbling over the next agency there. Senator Kyl has indicated that I speak for him as well. So I hope, the managers of the bill on the floor will be able to accept this amendment or, at the very least, allow us to vote for it and add it to the bill. Again, I thank the Senator from West Virginia. I know he was ahead of me in line but he very graciously allowed me to proceed first. I yield the floor.

Mrs. FEINSTEIN. Mr. President, first, I give my thanks to the distinguished Senator from West Virginia for allowing me to offer this amendment at this time, and also to the distinguished Senator from Nevada. Amendment No. 1365 (Purpose: To prevent and respond to terrorism and crime at or through ports)

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.