Al Franken

Mr. FRANKEN

Mr. FRANKEN. Mr. President, I also asked the Congressional Research Service, Congress's nonpartisan research arm, to take a look. They also did not find any cause for constitutional concern. Senator Sessions says my amendment violates the due process clause. But as Professors Amar, Chemerinsky, and Tribe explain in their letter, the Supreme Court hasn't struck down economic laws on these grounds since 1937--unless the legislation is ``arbitrary and irrational.'' Their conclusion: ``This amendment does not even remotely fall within that narrow prohibition.'' Let me be clear. This amendment does not single out any contractor. The text of the amendment does not list a single contractor by name, and if you read the amendment, you would know it. This amendment would defund any contractor who refused to give the victims of rape and discrimination their day in court. Let me tell my colleagues how I think this amendment does speak to the Constitution. The Constitution gives everybody the right to due process of law. Today, defense contractors are using fine print in their contracts to deny women such as Jamie Leigh Jones their day in court. But it is not just Jamie Leigh Jones. This isn't about one instance, as Senator Sessions said. This is about many women across this country who have been victims of sexual assault and rape in Iraq and who have been hired by contractors and who have been forced to arbitrate by contractors. So women are not given their day in court. Instead, they are forcing them behind the closed doors of arbitration where the Federal Rules of Evidence don't apply, where decisions are binding and secret, and where decisions are issued by a private arbitrator often paid by the company itself. This amendment does not seek to eliminate arbitration. It seeks to eliminate arbitration in cases of rape and sexual assault. The victim's----

Mr. FRANKEN. Mr. President, article I, section 8 of our Constitution gives Congress the power to spend money for the welfare of our citizens. Because of this, Chief Justice Rehnquist wrote: Congress may attach conditions on the receipt of Federal funds, and has repeatedly employed that power to further broad policy objectives. That is why Congress could pass laws cutting off highway funds to States which didn't raise their drinking age to 21. That is why this whole bill is full of limitations on contractors--what bonuses they can give and what kinds of health care they can offer. The spending power is a broad power, and my amendment is well within it. But don't take my word for it. I asked three of our Nation's top constitutional scholars--Akhil Amar, Laurence Tribe, and Erwin Chemerinsky, authorities regularly cited by everyone from Justice Scalia to Justice Stevens--what they thought about this amendment. Let me read their joint conclusion from this letter, which I ask unanimous consent to have printed in the Record: Congress' power of the purse is expansive. S.A. 2588 falls squarely within its purview, and clearly does not infringe any constitutional prohibition.

Mr. FRANKEN. I ask for the yeas and nays.

Mr. FRANKEN. Mr. President, when she was 19, Jamie Leigh Jones was drugged, gang-raped, and locked in a shipping container while working for KBR in Iraq. She tried to sue, but KBR pointed to the fine print in her contract and forced her into arbitration. Jamie Leigh, who came to Washington for this vote, has spent 3 years fighting just to get her day in court. This is not just Jamie Leigh's story. It is the story of Mary Kineston of Ohio, Pamela Jones of Texas, and women around this country. Fifty-eight groups across this country have taken a stand by supporting my amendment. As the National Alliance to End Sexual Violence said: Asking a victim to enter arbitration with someone who raped her, or with a company that wouldn't protect her, is outrageous. I agree. Victims of sexual assault and discrimination at least deserve their day in court. My amendment would make sure all military contractors, not just KBR, give victims that basic right. I urge you to support this amendment.

Mr. FRANKEN. Mr. President, the victims of rape and discrimination deserve their day in court. Congress plainly has the constitutional power to make that happen. I ask my colleagues to vote in support of my amendment.

Mr. FRANKEN. I ask unanimous consent for another 20 seconds.

Mr. FRANKEN

Mr. FRANKEN. I call up amendments Nos. 2588, 2596, 2585, and 2566.

Mr. FRANKEN. I object.

Mr. FRANKEN. I would like to get my amendment in.

Mr. FRANKEN. Madam President, I ask unanimous consent that the pending amendment be set aside, and on behalf of myself and Senators Bond and Coburn, I call up the following amendments en bloc, and ask that once they have been reported by number, they be set aside.

Mr. FRANKEN. Madam President, the amendment I offer today is inspired by the courageous story of a young woman who has dedicated 4 years of her life to making sure no other woman lives through her nightmare. Four years ago at the age of 19, Ms. Jamie Leigh Jones signed a contract to become an employee of KBR, then a Halliburton subsidiary. That contract contained a clause which required her to arbitrate any future dispute against her employer--this means to force her to give up her right to seek redress in court if she was wronged. At the time, Ms. Jones had no idea what implications this seemingly innocuous fine-print clause would have. Ms. Jones arrived in Iraq in July of 2005. Immediately, she complained to supervisors about the hostile conditions imposed by KBR. She was constantly being harassed by her male colleagues and was housed in barracks with 400 men and only a few women. Her pleas for safer housing were ignored. Four days after her arrival, Ms. Jones was drugged and gang-raped. She requested medical attention, and a doctor administered a rape kit. Parts of that rape kit have since mysteriously disappeared. After Ms. Jones reported the rape to her supervisors, she was locked in a shipping container with an armed guard and prohibited any contact with the outside world. They locked her in a container. It was only after she convinced one of the guards to lend her a cell phone that she was able to talk to her father, who enlisted the help of Representative Ted Poe, a Republican Congressman from Texas, to arrange for her safe return to the United States. But Ms. Jones' horrific plight did not end there. Having survived this ordeal, most of us would expect that she would have had her day in court to seek justice for the actions and inactions of her employer. Instead, KBR sought to enforce the arbitration clause in Ms. Jones' contract and tried to force her into arbitration. So over the past 3 years, Ms. Jones has been fighting for her right to bring a lawsuit, and KBR has been fighting her every step along the way. This is simply too long for a rape victim to wait, just to have her day in court. The only thing more outrageous than KBR's actions is that Ms. Jones' story is not an isolated one. Since Ms. Jones courageously shared her story, many more women have come out of the shadows saying the same thing happened to them. And, yes, some of these women are still waiting for their day in court too. Others were forced into arbitration, and their outcome remains secret due to the nondisclosure clauses in the arbitration agreement. Arbitration has its place in our justice system. For two companies haggling over the price of goods, arbitration is an efficient forum, and the arbitrator will undoubtedly have the appropriate expertise. The privacy that arbitration offers can protect their proprietary business information. But arbitration has its limits. Arbitration is conducted behind closed doors and doesn't bring persistent, recurring, and egregious problems to the attention of the public. Arbitration doesn't ever allow a jury of your peers. Arbitration doesn't establish important precedent that can be used in later cases. Many of our Nation's most cherished civil rights were established by individuals bringing claims in court, the court ruling in their favor, and then extending the protection of those rights to anyone in a similar situation. Arbitration does have a place in our system, but handling claims of sexual assault and egregious violations of civil rights is not its place. Ms. Jones won a small but important victory just a few weeks ago. The conservative Fifth Circuit Court, encompassing Texas, Louisiana, and Mississippi, ruled that most of Ms. Jones' claims do not belong in arbitration, and she is entitled to her day in court. The Fifth Circuit ruled that even when you sign an employment contract requiring arbitration, there are some rights to sue your employer that can't be signed away. These include assault and battery, infliction of emotional distress, false imprisonment, and negligent hiring, retention, and supervision. But the Fifth Circuit's ruling only applies to the Fifth Circuit's jurisdiction, so it is not settled law throughout the United States. Who can say what might happen to claims filed in other circuits? My amendment seeks to extend much of the Fifth Circuit's reasoning to government contractors who continually subject workers to these so- called mandatory arbitration clauses. The government shouldn't be doing business with defense contractors such as KBR as long as they continue this practice. The amendment I am offering today seeks to narrowly target the most egregious violations. The amendment applies to defense contracts, many of which are administered abroad, where women are the most vulnerable and least likely to have support resources. The amendment will apply to many contractors that have already demonstrated their incompetence in efficiently carrying out defense contracts and have further demonstrated their unwillingness and their inability to protect women from sexual assault. I urge my colleagues to support this amendment. Madam President, I yield the floor.

Mr. FRANKEN. I ask unanimous consent to set aside the pending amendment and call up my amendment at the desk, No. 2588.

Mr. FRANKEN

Mr. FRANKEN. Mr. President, in a country as wealthy as ours, it is shameful to let any child go hungry. That is why today, Senator Murkowski and I are introducing the Expand School Meals Act. By eliminating the reduced price meals category and replacing it with the free meal program, this legislation will ensure that low-income children are not denied nutritious food during the school day if their family can't afford to pay for it. It is important to remember that this will improve student readiness for school. Parents have long known, and recent studies confirm, that children cannot learn on empty stomachs. Hungry children perform worse on achievement tests, have trouble concentrating, and are more likely to act out in school. Securing access to healthy foods for low-income children is therefore not only a means of reducing child hunger, but also an important strategy for narrowing the achievement gap. There are 3.1 million low-income children across the Nation, and 54,000 children in Minnesota are eligible for reduced-price school meals. This means that the families of these children pay for part of their children's school meals. Currently, these families must pay 40 cents for each lunch and 30 cents for each breakfast their children eat at school. While this may not sound like a lot of money to members of Congress, to a family that is barely scraping by, especially in today's economy, the cost can be prohibitive. In this tough economy, a growing number of these families simply can no longer afford to pay. Low-income children in Minnesota and across the country are increasingly being turned away from school lunch counters because they don't have enough money in their meal accounts. In some districts, children in the reduced price meal program are humiliated when they are forced to pay small fees in front of their peers, or when they are handed cheese sandwiches instead of regular meals on the days they cannot afford to pay. It then becomes abundantly clear to all of their peers in the lunchroom that they are in the reduced price program. Teachers in Minnesota and elsewhere have reported that many children choose to avoid this stigma by just skipping meals. The indecency of turning away children from the school lunch counter becomes all too evident when one hears the stories of the food service workers and teachers who have to confront these children directly. In the Roseville, Minnesota, school district, for example, schools recently reported that parents with health problems showed up at the district office unable to pay for reduced-price lunch. The families, however, had too much income to qualify for the free lunch program. The district policy is that children who cannot pay for school lunches can receive cheese sandwiches for three days, and then must be turned away. Roseville cashiers and food service managers have been using their own money to cover children who they know cannot pay. This situation is entirely unacceptable. It is unacceptable not only because we are allowing children to go hungry today, but also because we know the impact of this hunger on their future. We know that insufficient access to food will negatively affect their development, as well as their educational outcomes, which together will have a lasting impact on their ability to reach their potential. Recent studies show just how devastating the impact of food insecurity is on the academic and social outcomes of school children. For example, researchers at Cornell and the University of Michigan found that children ages 6 to 11 who lacked sufficient food had significantly lower arithmetic scores, and were more likely to have repeated a grade than their peers. Furthermore, they found that teenagers who lacked sufficient food were almost three times as likely to have been suspended from school. Similarly, researchers at Harvard Medical School, and Massachusetts General Hospital found that children who, according to their parents, were experiencing hunger, were two to four times more likely than other children to repeat a grade, access special education services, or receive mental health counseling. Based on this research, it is clear that child hunger must be one of the factors that we address if we are serious about closing the achievement gap and giving every child in America a genuine opportunity to succeed. I would like to conclude by commending my colleagues on both sides of the aisle for their leadership in advocating for the extension of free school meals to children of the working poor. These efforts began with Senator Elizabeth Dole, who in 2003 introduced a bill that would have also phased out the reduced price meals category. And in 2004, Senator Dole advocated for a provision to be included in the Child Nutrition and WIC Reauthorization Act that authorized a 5 State pilot project to test the feasibility of eliminating the reduced price category. Funding for this project, unfortunately, was never appropriated. Some States and districts therefore decided to take matters into their own hands. I am proud to represent a State that decided to eliminate the reduced price category for school breakfasts. Based on the experience of these localities, we have learned that expanding eligibility for free meals to children in the reduced price category significantly increases their participation in school breakfast and lunch programs. In light of the experiences of these localities, and the difficult economic times, I am hopeful that this will be the year that we expand eligibility for free school meals. I urge all of my colleagues to join us in this endeavor and do right by our children.

Mr. FRANKEN

Mr. FRANKEN. Mr. President, in a country as wealthy as ours, it is shameful to let any child go hungry. That is why today, Senator Murkowski and I are introducing the Expand School Meals Act. By eliminating the reduced price meals category and replacing it with the free meal program, this legislation will ensure that low-income children are not denied nutritious food during the school day if their family can't afford to pay for it. It is important to remember that this will improve student readiness for school. Parents have long known, and recent studies confirm, that children cannot learn on empty stomachs. Hungry children perform worse on achievement tests, have trouble concentrating, and are more likely to act out in school. Securing access to healthy foods for low-income children is therefore not only a means of reducing child hunger, but also an important strategy for narrowing the achievement gap. There are 3.1 million low-income children across the Nation, and 54,000 children in Minnesota are eligible for reduced-price school meals. This means that the families of these children pay for part of their children's school meals. Currently, these families must pay 40 cents for each lunch and 30 cents for each breakfast their children eat at school. While this may not sound like a lot of money to members of Congress, to a family that is barely scraping by, especially in today's economy, the cost can be prohibitive. In this tough economy, a growing number of these families simply can no longer afford to pay. Low-income children in Minnesota and across the country are increasingly being turned away from school lunch counters because they don't have enough money in their meal accounts. In some districts, children in the reduced price meal program are humiliated when they are forced to pay small fees in front of their peers, or when they are handed cheese sandwiches instead of regular meals on the days they cannot afford to pay. It then becomes abundantly clear to all of their peers in the lunchroom that they are in the reduced price program. Teachers in Minnesota and elsewhere have reported that many children choose to avoid this stigma by just skipping meals. The indecency of turning away children from the school lunch counter becomes all too evident when one hears the stories of the food service workers and teachers who have to confront these children directly. In the Roseville, Minnesota, school district, for example, schools recently reported that parents with health problems showed up at the district office unable to pay for reduced-price lunch. The families, however, had too much income to qualify for the free lunch program. The district policy is that children who cannot pay for school lunches can receive cheese sandwiches for three days, and then must be turned away. Roseville cashiers and food service managers have been using their own money to cover children who they know cannot pay. This situation is entirely unacceptable. It is unacceptable not only because we are allowing children to go hungry today, but also because we know the impact of this hunger on their future. We know that insufficient access to food will negatively affect their development, as well as their educational outcomes, which together will have a lasting impact on their ability to reach their potential. Recent studies show just how devastating the impact of food insecurity is on the academic and social outcomes of school children. For example, researchers at Cornell and the University of Michigan found that children ages 6 to 11 who lacked sufficient food had significantly lower arithmetic scores, and were more likely to have repeated a grade than their peers. Furthermore, they found that teenagers who lacked sufficient food were almost three times as likely to have been suspended from school. Similarly, researchers at Harvard Medical School, and Massachusetts General Hospital found that children who, according to their parents, were experiencing hunger, were two to four times more likely than other children to repeat a grade, access special education services, or receive mental health counseling. Based on this research, it is clear that child hunger must be one of the factors that we address if we are serious about closing the achievement gap and giving every child in America a genuine opportunity to succeed. I would like to conclude by commending my colleagues on both sides of the aisle for their leadership in advocating for the extension of free school meals to children of the working poor. These efforts began with Senator Elizabeth Dole, who in 2003 introduced a bill that would have also phased out the reduced price meals category. And in 2004, Senator Dole advocated for a provision to be included in the Child Nutrition and WIC Reauthorization Act that authorized a 5 State pilot project to test the feasibility of eliminating the reduced price category. Funding for this project, unfortunately, was never appropriated. Some States and districts therefore decided to take matters into their own hands. I am proud to represent a State that decided to eliminate the reduced price category for school breakfasts. Based on the experience of these localities, we have learned that expanding eligibility for free meals to children in the reduced price category significantly increases their participation in school breakfast and lunch programs. In light of the experiences of these localities, and the difficult economic times, I am hopeful that this will be the year that we expand eligibility for free school meals. I urge all of my colleagues to join us in this endeavor and do right by our children.

Mr. FRANKEN

Mr. FRANKEN. Mr. President, I am pleased today to introduce the Fairness in Health Insurance Act. This bill will hold health insurance companies accountable by requiring that at least 90 percent of your premium dollars go toward health services, not profits or administrative waste. As we move forward in health reform, it is essential that health insurance companies know that their top priority must be serving beneficiaries, not taking care of shareholders or CEOs. This bill is inspired by the unique culture of health care in Minnesota, which includes the Mayo Clinic, cooperative models like HealthPartners, and visionary public health leadership from State legislators. Heath care in our State is also distinguished by the fact that 90 percent of Minnesotans are served by a nonprofit health plan. These plans outperform their national peers and are able to put 91 cents of every premium dollar toward actual health care services. In other plans throughout the nation, though, you may find less than 60 percent of your premium is put toward health care; the rest is for overhead, marketing and profits. By taking the profits out of the health insurance industry, Minnesota health plans do a better job helping our residents to live healthier, longer lives. The Fairness in Health Insurance Act will help us hold all health plans to the same standards we've set in Minnesota by requiring that 90 percent of premium dollars actually pay for health services. But while millions of Americans struggle to pay for health care, insurance executives continue to make obscene salaries. Last year, three top health insurance executives saw boosts in their total compensation--some of them making almost $10 million. I believe in fair competition but I do not support companies making obscene profits off of health care. The Fairness in Health Insurance Act will force insurance companies to prioritize health services for beneficiaries over bonus packages for CEOs. In fact, the current reality is that most of us don't know where our health insurance premiums go. It's challenging enough to understand a billing statement from your health insurance company, much less track where your money is being spent. The Fairness in Health Insurance Act also requires transparent reporting of how health insurance companies are spending your money. This transparency is especially important as we move to cover all Americans in health reform. Clear reporting will help us hold insurance companies accountable for every dollar we invest in health insurance. Now, although Minnesota outperforms most states in health care, I know we can continue to do better as well. When I talk with Minnesotans, I hear again and again that people are living in fear about health care. They are afraid of losing their health insurance, or worried about getting sick and going bankrupt. The reality is that 50 percent of bankruptcies today are caused by health costs and 80 percent of these Americans actually have health insurance. Passing national health reform this year is my top priority because I have listened to Minnesotans across the State. They have told me, loud and clear, that the current health insurance system is not working for them. The Fairness in Health Insurance Act of 2009 is an important part of my health reform strategy that also includes cost containment, simplifying paperwork, focusing on prevention, pushing for a public option and making sure that all Americans have access to affordable, secure health insurance. I urge my colleagues to work with me to ensure that these commonsense strategies are included in our health reform bill when it comes to the floor. Taken together, these elements will bring our country into a new era in which high-quality--and affordable--health care is a reality for all Americans. Mr. President, I ask for unanimous consent that the text of the bill be printed in the Record.

Mr. FRANKEN

Mr. FRANKEN. Mr. President, I am pleased today to introduce the Fairness in Health Insurance Act. This bill will hold health insurance companies accountable by requiring that at least 90 percent of your premium dollars go toward health services, not profits or administrative waste. As we move forward in health reform, it is essential that health insurance companies know that their top priority must be serving beneficiaries, not taking care of shareholders or CEOs. This bill is inspired by the unique culture of health care in Minnesota, which includes the Mayo Clinic, cooperative models like HealthPartners, and visionary public health leadership from State legislators. Heath care in our State is also distinguished by the fact that 90 percent of Minnesotans are served by a nonprofit health plan. These plans outperform their national peers and are able to put 91 cents of every premium dollar toward actual health care services. In other plans throughout the nation, though, you may find less than 60 percent of your premium is put toward health care; the rest is for overhead, marketing and profits. By taking the profits out of the health insurance industry, Minnesota health plans do a better job helping our residents to live healthier, longer lives. The Fairness in Health Insurance Act will help us hold all health plans to the same standards we've set in Minnesota by requiring that 90 percent of premium dollars actually pay for health services. But while millions of Americans struggle to pay for health care, insurance executives continue to make obscene salaries. Last year, three top health insurance executives saw boosts in their total compensation--some of them making almost $10 million. I believe in fair competition but I do not support companies making obscene profits off of health care. The Fairness in Health Insurance Act will force insurance companies to prioritize health services for beneficiaries over bonus packages for CEOs. In fact, the current reality is that most of us don't know where our health insurance premiums go. It's challenging enough to understand a billing statement from your health insurance company, much less track where your money is being spent. The Fairness in Health Insurance Act also requires transparent reporting of how health insurance companies are spending your money. This transparency is especially important as we move to cover all Americans in health reform. Clear reporting will help us hold insurance companies accountable for every dollar we invest in health insurance. Now, although Minnesota outperforms most states in health care, I know we can continue to do better as well. When I talk with Minnesotans, I hear again and again that people are living in fear about health care. They are afraid of losing their health insurance, or worried about getting sick and going bankrupt. The reality is that 50 percent of bankruptcies today are caused by health costs and 80 percent of these Americans actually have health insurance. Passing national health reform this year is my top priority because I have listened to Minnesotans across the State. They have told me, loud and clear, that the current health insurance system is not working for them. The Fairness in Health Insurance Act of 2009 is an important part of my health reform strategy that also includes cost containment, simplifying paperwork, focusing on prevention, pushing for a public option and making sure that all Americans have access to affordable, secure health insurance. I urge my colleagues to work with me to ensure that these commonsense strategies are included in our health reform bill when it comes to the floor. Taken together, these elements will bring our country into a new era in which high-quality--and affordable--health care is a reality for all Americans. Mr. President, I ask for unanimous consent that the text of the bill be printed in the Record.

Mr. FRANKEN

Mr. FRANKEN. Mr. President, today I am introducing my second bill, the Household Product Labeling Act. This legislation will enable consumers to determine whether potentially harmful chemicals are present in the household cleaning products they use every day. I want to first thank my colleague in the House, Representative Israel of New York's 2nd District, for his leadership on this issue and for the tremendous work he put into helping to craft this bill. In many households across the country, the entire family pitches in on household cleaning chores. The effort is obviously intended to keep everyone healthy by cutting down on germs, bacteria, and mold. But unfortunately, many of the ingredients in commonly used cleaning products may be dangerous themselves. Current law requires that product labels list immediately hazardous ingredients, but there is no labeling requirement for ingredients that may cause harm over time. Many chemicals contained in household products have been shown to produce harmful health effects. Consumers have a right to know which of these potentially harmful chemicals might be present in their kitchen and bathroom cupboards. This information is particularly important to families with small children, who as we all know have more direct contact with floors and household surfaces. This legislation simply makes that information readily available to consumers, giving them the opportunity to make an informed choice about the chemicals they bring into their homes. How many times have you heard on the news or read in the paper about a new drug or chemical that has been recently linked to health or environmental hazards? It happens all the time. An ingredient that a company claims is ``perfectly safe'' today could be reclassified as ``dangerous'' tomorrow. And an ingredient that is safe for most people could be a major irritant for a child with asthma. Eventually, I hope that manufacturers will take pre-emptive action and eliminate potentially harmful chemicals from their products. In the meantime, this legislation is a common sense step in the right direction. I urge my colleagues to support the ``Household Product Labeling Act'' and give consumers the right to shield their families from potentially harmful household products. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FRANKEN

Mr. FRANKEN. Mr. President, today I am introducing my second bill, the Household Product Labeling Act. This legislation will enable consumers to determine whether potentially harmful chemicals are present in the household cleaning products they use every day. I want to first thank my colleague in the House, Representative Israel of New York's 2nd District, for his leadership on this issue and for the tremendous work he put into helping to craft this bill. In many households across the country, the entire family pitches in on household cleaning chores. The effort is obviously intended to keep everyone healthy by cutting down on germs, bacteria, and mold. But unfortunately, many of the ingredients in commonly used cleaning products may be dangerous themselves. Current law requires that product labels list immediately hazardous ingredients, but there is no labeling requirement for ingredients that may cause harm over time. Many chemicals contained in household products have been shown to produce harmful health effects. Consumers have a right to know which of these potentially harmful chemicals might be present in their kitchen and bathroom cupboards. This information is particularly important to families with small children, who as we all know have more direct contact with floors and household surfaces. This legislation simply makes that information readily available to consumers, giving them the opportunity to make an informed choice about the chemicals they bring into their homes. How many times have you heard on the news or read in the paper about a new drug or chemical that has been recently linked to health or environmental hazards? It happens all the time. An ingredient that a company claims is ``perfectly safe'' today could be reclassified as ``dangerous'' tomorrow. And an ingredient that is safe for most people could be a major irritant for a child with asthma. Eventually, I hope that manufacturers will take pre-emptive action and eliminate potentially harmful chemicals from their products. In the meantime, this legislation is a common sense step in the right direction. I urge my colleagues to support the ``Household Product Labeling Act'' and give consumers the right to shield their families from potentially harmful household products. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FRANKEN

Mr. FRANKEN. Mr. President, before I discuss the nomination of Judge Sotomayor, I wish to take a moment to thank all of my colleagues here in the Senate for their very warm welcome and hospitality. I joined this body a little less than a month ago, but I have been humbled by this institution, by the work that goes on here, and, most importantly, by my colleagues. It is an honor to represent the people of Minnesota, and it is a special privilege to do so here in the Senate. One of my first responsibilities on joining the Senate was to participate in the nomination hearings for Judge Sotomayor. I said at the start of the hearings that I wanted to be a voice for the overwhelming majority of Americans who aren't lawyers. The actions of the Supreme Court directly affect the everyday lives of all Americans. Whom we choose to place on the Supreme Court affects every one of us. That is what I want to do this evening. I want to put the nomination of Judge Sotomayor in context. I want to put it in the context of what the Supreme Court has done these past 5 years and how that has affected the lives of Minnesotans and of all Americans. Our country is going through some tough times. We are experiencing the highest unemployment in decades. Businesses are failing. Investors are seeing their investments shrink, even disappear. Yet, despite all of this, despite our faltering economy, in the past 5 years this Supreme Court has restricted the rights of Americans as employees, as small business owners, and as investors, and they have done this by overturning longstanding precedents. Let me put this in the context of Minnesota. Ten years ago, Minnesota had an unemployment rate of 2.8 percent. Let me repeat that. Ten years ago, Minnesota had an unemployment rate of 2.8 percent. Today, it is 8.4 percent. In certain counties, it hovers between 13 and 14 percent. At the same time, Minnesota has an older workforce. The Twin Cities are fourth in the Nation in the percentage of seniors working past the age of 65. When businesses are making tough personnel decisions, you can bet they are taking a good hard look at older workers who have higher pension and health care costs. But just last month, the Supreme Court eviscerated the one law designed to prevent discrimination against older workers: the Age Discrimination in Employment Act, or ADEA, as it is called. Because of this case, the Gross case, it is not enough for a worker suing for age discrimination to show he or she was fired improperly because of their age. Under this new standard, an older worker must now show that age was the single determinative reason for the firing. This is a difficult, if not practically impossible, standard to meet. This also breaks with the longstanding rule that the ADEA must be interpreted the same as title VII of the Civil Rights Act which protects women and minorities against discrimination in the workplace. Because of the Gross case, Minnesota's older workers have fewer rights in the workplace precisely when they need them the most. This was the same Court that 2 years ago barred a title VII suit by Lilly Ledbetter, a woman who was paid less than her male colleagues for the same work for two decades. Minnesota women are paid 74 cents for every dollar earned by men. Until Congress fixed this ruling last year through the Lilly Ledbetter Fair Pay Act, this was yet another ruling that limited Minnesotans' rights in the workplace. This Supreme Court has put Minnesota's small business owners in a similar position. Like entrepreneurs around the country, Minnesota business owners are struggling. Business bankruptcies in our State increased 40 percent between 2006 and 2008, and it will likely be worse in 2009. If there were ever a time small business owners in Minnesota needed a leg up, it is right now. But 2 years ago, this Supreme Court overturned one of the strongest protections small business owners have under the Sherman Act, our main antitrust law. For over 100 years, it has been illegal for manufacturers to price-fix--to force retailers to sell their goods at a certain price. Today, thanks to this Court's ruling in the Leegin case, price fixing is now permitted. In fact, the burden is now on consumers and small business owners to show, through a complex economic analysis, that the price fixing hurts them. This Court has been no kinder to investors. Like almost all American investors, Minnesota investors are reeling from the trillions of dollars in losses in the stock market. These losses were partly caused by structural deficiencies in our finance system, but they were also caused by speculation and by fraud, by people such as Bernie Madoff and Tom Petters, a Minnesota financier who is in prison right now charged with a $3.5 billion scheme that bilked stockholders in a number of Minnesota companies. Yet, last year, the Supreme Court handed down a decision that severely limited investors' ability to defend themselves against securities fraud. In the Stoneridge case, the Supreme Court said that an investor cannot sue an outside accountant or a lawyer who worked with a company to fraudulently alter its financial records to deliberately cook its books unless that third party somehow, for some reason, publicly announced its involvement. Together, the Age Discrimination in Employment Act, title VII of the Civil Rights Act, the Sherman Act, and the Securities Exchange Act are some of the strongest protections employees, small business owners, and investors have under American law. These laws help to level the playing field for the less powerful in our society. Yet, in each of these cases, for each of these laws, this Supreme Court has ignored longstanding precedent and original congressional intent to limit the rights these laws afford precisely when they are needed the most. The Supreme Court's willingness to ignore longstanding precedent to restrict individual rights is not limited to our economy. This same Supreme Court recently overturned a 30-year rule that requires that a woman's health be taken into account in any law regulating her right to choose. The Court is also poised to overturn critical protections to voters. This Supreme Court has questioned the constitutionality of section 5 of the Voting Rights Act, even though the 15th amendment expressly grants Congress the power to regulate elections and even though Congress recently voted to reauthorize those provisions for the fourth time by a vote of 98 to 0. Talk about judicial activism. This is judicial activism. This is the Supreme Court questioning the constitutionality of a law passed by Congress under an explicit and exclusive grant of power granted in the Constitution of the United States. If she is confirmed, the first case Justice Sotomayor will hear will reconsider the constitutionality of sections of McCain-Feingold that the Supreme Court upheld just 6 years ago. The underlying principle in question goes back over 100 years to the Tillman Act of 1907. For 100 years, Congress has said with increasing force that corporations should not be spending money on Federal election campaigns. Yet this Court is poised to contravene that 100-year-old rule and its own ruling on the identical provision just 6 years ago. Again, I think this is judicial activism. In fact, I think it is judicial activism in one direction: away from longstanding protections for the individual and toward a more friendly law for the powerful. As I said last week, I firmly believe that in this context, with this Supreme Court, a vote for Judge Sotomayor is a vote against judicial activism. In a careful review of her opinions as an appellate judge, the nonpartisan Congressional Research Service recently concluded that: [p]erhaps the most consistent characteristic of Judge Sotomayor's approach as an appellate judge has been an adherence to the doctrine of stare decisis-- The upholding of past judicial precedents. Of the 230 majority opinions Judge Sotomayor wrote as an appellate judge, the Supreme Court has reversed only 3. That is 3 reversals out of 230 majority opinions. But the best examples of Judge Sotomayor's inherent judicial restraint are the two cases for which she has ironically received the most criticism--the Ricci case and Maloney v. Cuomo, the Second Circuit's most recent second amendment case. In both of these cases, Judge Sotomayor simply followed the Supreme Court's own maxim that it is the Court's--the Supreme Court's--prerogative alone to overrule one of its precedents. When a three-judge panel in Ricci affirmed the district court's decision, it was simply following existing title VII law. When the three-judge panel in the Maloney case said that the second amendment does not apply to the States, it was simply following a 120-year-old Supreme Court precedent that said exactly that. Moreover, a three-judge panel on the Seventh Circuit that included two of the most prominent negligent conservative judges in the country, Frank Easterbrook and Richard Posner, reached the same exact conclusion unanimously. Judge Sonia Sotomayor is a judge who follows and respects precedent. She is a judge who does not make new law. In fact, it seems that Judge Sotomayor's worst sin in this whole process is her straightforward observation that our life experiences shape who we are and what we do. This is not a new idea. Mr. President, 175 years ago, on the first page and at the most famous treatise in American law, Oliver Wendell Holmes wrote: The life of the law has not been logic; it has been experience. This isn't just an old idea either. Justices Alito, Scalia, and Thomas each acknowledged in their own confirmation hearings that their own life experiences--being born into an immigrant family, an exposure to discrimination, a childhood in poverty--shaped their own approach to judging. But Judge Sotomayor went beyond Justices Alito, Scalia, and Thomas by also recognizing that judges must be aware of these prejudices, and they must not allow these prejudices to impact their approach to a case. Since this is a body that values its history, I thought it would be appropriate to close by mentioning the last nominee to the Supreme Court with a comparable amount of experience to Judge Sotomayor. That person is Benjamin Cardozo. Judge Cardozo was nominated to the Supreme Court in 1932, after spending 18 years on his State's highest court. Like Judge Sotomayor, Judge Cardozo was from New York. Like Judge Sotomayor, he had a tough childhood, losing a parent when he was 9 years old. He had a tough childhood like her. Like Judge Sotomayor, Cardozo was from an ethnic minority--he was a Sephardic Jew, a descendent of Portuguese immigrants. Like Judge Sotomayor, Cardozo was rightly proud of his heritage. Like Judge Sotomayor, Cardozo was the most experienced nominee to the Supreme Court in his generation. Yet, unlike Judge Sotomayor, Judge Cardozo did not attract so much controversy. In fact, he was unanimously confirmed to the Supreme Court in a voice vote that lasted all of 10 seconds. Judge Sotomayor is one of the leading jurists of our Nation. If confirmed, she will be the only judge on the Supreme Court with trial court experience. She would be one of the only ones with experience as a prosecutor. As many have commented, she would be the appointee with the most Federal court experience in a century. We have, right now, a chance to make history. Thankfully, unlike a lot of the important decisions we have to make that come before this body, this is an easy one to make. Judge Sotomayor will not only be the first Latina on the Supreme Court; she will be the first person of Hispanic descent to reach the pinnacle of any one of the three branches of the Federal Government. She could not be more qualified for this position. Her appointment will help protect the individual rights and liberties that are so necessary for Minnesotans and for all Americans--and that this Supreme Court has steadily, and substantially, eroded. I am honored to cast my vote in favor of Judge Sonia Sotomayor, and I hope my colleagues on both sides of the aisle will join me. I yield the floor.