Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to introduce ``The Cord Blood Stem Cell Act of 2005.'' I am particularly gratified that Senators Dodd, Brownback, Harkin, and Specter have joined me as cosponsors of this bipartisan bill. Since I first introduced this bill last Congress, there has been strong interest in Federal support for public cord blood banks as a widely accepted source of hematopoietic stem cells for transplant and research. The purpose of the Cord Blood Stem Cell Act is to create an easily accessible network to prepare, store, and distribute human umbilical cord blood stem cells for the treatment of patients and to support research using such cells. Today, thousands of Americans receive and are saved by bone marrow transplants each year. But thousands more die for lack of an appropriate donor. The good news is that research now suggests that the blood and stem cells from human placenta and umbilical cords may in some cases provide an alternative to bone marrow transplantation. For some patients, particularly those for whom a bone marrow match cannot be found, transplantation of these cells may be a life-saving therapy. Cord blood stem cell transplants are readily available, and they require less stringent matching from donors to recipients, thus decreasing the difficulty of finding a fully matched donor. Cord blood transplantation has been used successfully to treat leukemia, lymphoma, immunodeficiency diseases, sickle cell anemia, and certain metabolic diseases. However, the number of available cord blood stem cell units in the United States is insufficient to meet the need. The Cord Blood Stem Cell Act of 2005 proposes to establish an inventory of 150,000 cord blood stem cell units that reflects the diversity of the United States. In conjunction with the 5 million registered bone marrow donors, this registry will enable 95 percent of Americans to receive an appropriately matched transplant. The inventory would provide a critical additional resource for those in need of transplants and allocate a certain proportion of units to sustain further research on cord blood stem cells. In 2004, Congress asked the Institute of Medicine to provide an assessment of existing cord blood programs and inventories and to make recommendations to enhance the structure, function, and utility of such programs. Following a year-long process of review and evaluation, the Institute of Medicine will soon issue recommendations on the best methods to create and implement this public cord blood bank network. I look forward to reviewing these recommendations and ensuring that they are appropriately reflected in any legislation. Let me be clear--I am open to all options. It is my goal to create the best system to provide patients, clinicians, and families with access to these life-saving treatments by ensuring that the number of cord blood units available for transplant and research increases in the coming years. The system will include a network of qualified donor banks which will collect, test, and preserve cord blood stem cells. In addition, the system should educate and recruit donors, facilitate the rapid matching of donors and recipients, and quickly make such cells available to transplant centers for stem cell transplantation. I also strongly endorse the excellent work done by the National Marrow Donor Program (NMDP), which Congress created in 1986 and continues to fund. This registry already lists more than 42,000 units of umbilical cord blood and provides important patient advocacy and support services. It also provides an online service which allows physicians to compare potential cord blood matches with potential adult volunteer donor matches so that they can select the source of cells that best meets their patients' needs. Cord blood should be used to expand patient choices, not to restrict them. Patients, in consultation with their physicians, should have the ability to decide which is best for them. The establishment of a national infrastructure for cord blood will help save the lives of thousands of critically ill Americans. And while this legislation is not perfect, it is my hope that its introduction will encourage discussions on cord blood and the federal government's role in helping to increase the inventory of cord blood units in the United States. In my opinion, we must be sure that our nation can meet the needs of patients and physicians by ensuring a strong future for cord blood in this country. My primary goal is to ensure that the number of cord blood units available for transplant and research increases in the coming years. The only way that goal may be accomplished is through strong federal support. I look forward to working with my colleagues on doing everything possible to provide transplant patients with the best possible options by ensuring a strong future for cord blood transplantation in this country.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to express my support for the concurrent budget resolution presently before the Senate. I want to start by congratulating Senator Judd Gregg, the new chairman of the Budget Committee, along with the other members of that committee, for accomplishing the difficult task of putting together and reporting to the Senate a budget resolution that begins to address our spending and deficit challenges in a modest yet significant way. As with many of my fellow Utahns, I am very concerned about the large and persistent deficits with which our Federal Government still wrestles. I continue to hear from constituents who seem discouraged that the Government has not been able to find more success in bringing the budget into balance, particularly after the several years of surplus we enjoyed in the latter part of the last decade. Many Utahns have written to me to express their concerns that this generation is leaving a huge and growing burden on our children and grandchildren, one that perhaps will be too onerous for them to bear. As a long-time advocate of fiscal responsibility in families and in Government, I understand and agree with these concerns. The deficit and the mountain of public debt owed by the Federal Government do matter, and will make life harder for Americans in the future. And so, those of us from Utah share a collective frustration that this budget does not make more progress toward cutting the deficit. As I examine the budget resolution, however, I am struck by the fact that we, as a nation, are still facing turbulent conditions that seem to defy our best efforts to control our fiscal destiny. As we get farther and farther from the monumental events of the early part of this decade that have shaped our current landscape in so many ways, perhaps it is becoming easier to think that things are slowly returning to normal in our country. But we need to remember that this Nation is still at war, and we still face tremendous challenges in protecting our homeland from further terrorist attacks. These needs are paramount and eclipse even the importance of balancing the budget. This budget resolution reflects these facts and provides for increases, although a relatively modest 4.1 percent growth in defense and homeland security spending. At the same time, the budget places a virtual freeze on the growth of the remainder of discretionary spending accounts. This is in stark contrast to recent years, where such spending has grown at a relatively high rate. I believe this nondefense/homeland security freeze is a very important feature of this budget. Even though this restraint is rather modest, it is being met with a great deal of concern from many who had hoped to see more growth in the programs that fall under this category. The budget also makes some small progress in bringing mandatory spending under control. Over the 5-year budget period provided by this resolution, this type of spending growth is cut by $32 billion. Although this is just a fraction of the growth in entitlement spending projected over this period, it is significant that this budget represents the first attempt to cut mandatory spending growth since 1997. The results of these changes on the deficit are not dramatic, but they are noteworthy. The President set a goal last year to cut the deficit for fiscal year 2004, which was $521 billion, or 4.5 percent of GDP, in half within 5 years. The budget resolution before us projects this goal being met in fiscal year 2008 with a deficit of $258 billion that year, and falling to $208 billion by 2010. In relative terms, the deficit is projected to be 1.8 percent of GDP by 2008 and just 1.3 percent by 2010. While still too large, these deficits are certainly more manageable than those of recent years. To meet these goals, the resolution provides some pretty tough discretionary spending caps for the next three fiscal years, and retains the pay-as-you-go rule from the fiscal year 2004 budget resolution. Some of my colleagues are questioning the need for the budget to provide for approximately $70 billion in tax relief over the next 5 years. We need this money set aside to prevent tax increases that would be damaging to our growing economy. Specifically, two provisions that have shown to be very important to increasing Federal revenue growth and helping the economy to recover are set to expire at the end of 2008. These are the reduced tax rates for dividend income and capital gain income that were enacted as part of the Jobs and Growth Tax Relief Reconciliation Act of 2003. If Congress allows these lower tax rates to expire, we would, in effect, be placing a significant tax increase on the economy. Capital gains rates would increase from a maximum of 15 percent to 20 percent, and the tax rate on dividends would leap from 15 percent to as high as 35 percent. There is no doubt that these tax rate reductions, combined with the other tax cuts we passed in 2001, 2002, and 2003 have contributed to the recovery of the economy. After declining for 3 years, 2001-2003, Federal collections began increasing again in 2004, rising by 5.5 percent that year. For the current fiscal year, 2005, revenues are projected to jump by an impressive 9.4 percent. Moreover, revenues are expected to increase by an average of 6.4 percent each year until the end of the decade. This demonstrates to me the wisdom of our earlier decisions to cut taxes to get the economy growing again. Allowing tax rates to increase might seem to some to be a smart way to fight the deficit, but I believe these revenue trends illustrate that such a move would be counterproductive and exactly the wrong thing to do. Therefore, it is very important that this budget include the reconciliation instructions that provide the opportunity for the Finance Committee to report the legislation that will prevent these tax cuts from expiring. I look forward to working my colleagues on the Finance Committee in crafting a bill to extend both the dividends and capital gains tax rate reductions, as well as extending other important tax provisions that expire later this year. While this budget resolution perhaps does not go as far as I would like to see in reducing the deficit and addressing spending growth, it is probably as strong as we can make it. I also recognize that this resolution has to garner a majority of votes in both the Senate and the House for it to take effect. Each one of my colleagues also has his or her own ideas of what would be the best combination of spending priorities for this coming fiscal year. In the end, what counts is what we can get a majority of us to agree upon the lowest common denominator. Given the circumstances, the balances achieved in the budget resolution may well be the best we can do. It is not perfect, but it is a start, and it deserves our support.

Mr. HATCH. Mr. President, the narrow 51-49 vote on the budget resolution we just passed reveals the delicate balance that our leadership forged between spending restraints and the funding priorities of the American people. On the one hand, there is a clear need to dry up the red ink which threatens to plague our children, their children and generations to come. As the author of the Balanced Budget Constitutional amendment I am clearly aware of the need to maintain fiscal discipline. At the same time, I also have a responsibility to the citizens of UT to make certain that important programs in our state receive the funding they need to operate on a sound basis. Today, we cast many difficult votes which forced us to choose between those two competing priorities. One of those votes was on the Smith Medicaid amendment. I am extremely concerned about the $60 billion reduction in proposed spending growth for Medicaid in the President's budget. At the same time, it is important to note that even under the President's budget, Medicaid is projected to grow about 7 percent per year. I feel that it is incumbent upon the Finance Committee and its members, Secretary Mike Leavitt and the President to work with States and communities to ensure that we preserve the safety net Medicaid offers to the elderly, the disabled and the low income. I have pledged to Chairman Chuck Grassley and Secretary Leavitt that I will work with them to ensure that there is adequate funding for this vital program. I am very concerned that we do right by this program which helps so many, many Utahns each year. We can't allow it to be torn apart. Another difficult amendment facing the Senate today was the amendment offered by Senator Norm Coleman to restore funding in the budget for the Community Development Block Grant program, CDBG. As my colleagues are aware, I wrote to the Budget Committee and urged strongly that they include adequate room for the appropriators to fund the CDBG program. I was very disappointed that funding was not reflected in the budget reported by the Senate Budget Committee. I consider the Community Development Block grant program to be an effective tool and an extremely important program for communities throughout the State of Utah. I feel it is important to note that the purpose of the Budget Resolution is to set out the framework for the FY 2006 priorities which will determine the allocations provided to each of the Appropriations Subcommittees. We all know it is very difficult to begin the appropriations process without having a budget in place to guide our work. Whether or not the final budget agreement which emerges from the House-Senate conference includes an explicit funding reference for the CDBG or not, action will turn to the Appropriations Committee which has the full authority, and indeed the responsibility, to provide funding for this program. Let me make it perfectly clear to the communities in Utah that I will not drop my fight to secure adequate funding for the CDBG. I want to assure my colleagues that my votes on the budget today do not reflect any lessened commitment on my part to the CDBG, Medicaid or other vital programs in UT.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the Tax Court Modernization Act. I am joined in this legislation by the Chairman and Ranking Democrat of the Finance Committee, Senator Grassley and Senator Baucus, and my colleague Senator Lincoln. The United States Tax Court plays an important role in our tax system. However, it has been years since Congress has taken a good hard look at the Tax Court. This bipartisan piece of legislation will improve this Court in a number of ways, and I would like to take a moment to summarize some of its provisions. First, the TCMA would make minor changes in the Tax Court's jurisdiction. These are small changes that will have a big impact on the Court's efficiency. For example, the bill would allow the Tax Court to hire employees on its own, just as other courts do. Currently, the Tax Court is forced to hire through the Executive Branch's Office of Personnel Management, entangling the executive power with the judicial power. Restoring the constitutional separation of powers in the hiring process will increase the independence of the Tax Court. Second, the TCMA would improve the way that Tax Court judges receive retirement benefits and other non-salary benefits. I believe that Tax Court judges should be treated the same way that bankruptcy, Court of Federal Claims, and Article III judges are treated when it comes to fringe benefits. Tax Court judges are often not provided with the same benefits as similarly appointed Article I and Article III judges. For example, Congress allows Article III, bankruptcy, and Court of Federal Claims judges to participate in the Thrift Savings Plan in addition to the Civil Service Retirement System, while Tax Court judges are ineligible to participate in this program. These disparities in the treatment of our Tax Court judges affect the Court's ability to attract and retain seasoned judges, as well as talented employees. This legislation is non-controversial and is the result of many years of work. The Finance Committee passed the bill three separate times during the 108th Congress, but it unfortunately was not included in a vehicle that made it to enactment. Hopefully, we will be able to get these provisions to the President's desk this year. I have spent many years observing the Federal judiciary. I have spent many years trying to improve the Judicial Branch of our government and to make it the very finest court system the world has ever known. I look forward to working with my colleagues on the Senate Finance Committee on this important piece of legislation. I urge my colleagues, both on the Finance Committee and in the Senate as a whole, to support this legislation. I ask unanimous consent to print in the Record a summary of the provisions of the U.S. Tax Court Modernization Act.

Mr. HATCH. Mr. President, I am pleased to introduce ``The Cord Blood Stem Cell Act of 2005.'' I am particularly gratified that Senators Dodd, Brownback, Harkin, and Specter have joined me as cosponsors of this bipartisan bill. Since I first introduced this bill last Congress, there has been strong interest in Federal support for public cord blood banks as a widely accepted source of hematopoietic stem cells for transplant and research. The purpose of the Cord Blood Stem Cell Act is to create an easily accessible network to prepare, store, and distribute human umbilical cord blood stem cells for the treatment of patients and to support research using such cells. Today, thousands of Americans receive and are saved by bone marrow transplants each year. But thousands more die for lack of an appropriate donor. The good news is that research now suggests that the blood and stem cells from human placenta and umbilical cords may in some cases provide an alternative to bone marrow transplantation. For some patients, particularly those for whom a bone marrow match cannot be found, transplantation of these cells may be a life-saving therapy. Cord blood stem cell transplants are readily available, and they require less stringent matching from donors to recipients, thus decreasing the difficulty of finding a fully matched donor. Cord blood transplantation has been used successfully to treat leukemia, lymphoma, immunodeficiency diseases, sickle cell anemia, and certain metabolic diseases. However, the number of available cord blood stem cell units in the United States is insufficient to meet the need. The Cord Blood Stem Cell Act of 2005 proposes to establish an inventory of 150,000 cord blood stem cell units that reflects the diversity of the United States. In conjunction with the 5 million registered bone marrow donors, this registry will enable 95 percent of Americans to receive an appropriately matched transplant. The inventory would provide a critical additional resource for those in need of transplants and allocate a certain proportion of units to sustain further research on cord blood stem cells. In 2004, Congress asked the Institute of Medicine to provide an assessment of existing cord blood programs and inventories and to make recommendations to enhance the structure, function, and utility of such programs. Following a year-long process of review and evaluation, the Institute of Medicine will soon issue recommendations on the best methods to create and implement this public cord blood bank network. I look forward to reviewing these recommendations and ensuring that they are appropriately reflected in any legislation. Let me be clear--I am open to all options. It is my goal to create the best system to provide patients, clinicians, and families with access to these life-saving treatments by ensuring that the number of cord blood units available for transplant and research increases in the coming years. The system will include a network of qualified donor banks which will collect, test, and preserve cord blood stem cells. In addition, the system should educate and recruit donors, facilitate the rapid matching of donors and recipients, and quickly make such cells available to transplant centers for stem cell transplantation. I also strongly endorse the excellent work done by the National Marrow Donor Program (NMDP), which Congress created in 1986 and continues to fund. This registry already lists more than 42,000 units of umbilical cord blood and provides important patient advocacy and support services. It also provides an online service which allows physicians to compare potential cord blood matches with potential adult volunteer donor matches so that they can select the source of cells that best meets their patients' needs. Cord blood should be used to expand patient choices, not to restrict them. Patients, in consultation with their physicians, should have the ability to decide which is best for them. The establishment of a national infrastructure for cord blood will help save the lives of thousands of critically ill Americans. And while this legislation is not perfect, it is my hope that its introduction will encourage discussions on cord blood and the federal government's role in helping to increase the inventory of cord blood units in the United States. In my opinion, we must be sure that our nation can meet the needs of patients and physicians by ensuring a strong future for cord blood in this country. My primary goal is to ensure that the number of cord blood units available for transplant and research increases in the coming years. The only way that goal may be accomplished is through strong federal support. I look forward to working with my colleagues on doing everything possible to provide transplant patients with the best possible options by ensuring a strong future for cord blood transplantation in this country.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the Tax Court Modernization Act. I am joined in this legislation by the Chairman and Ranking Democrat of the Finance Committee, Senator Grassley and Senator Baucus, and my colleague Senator Lincoln. The United States Tax Court plays an important role in our tax system. However, it has been years since Congress has taken a good hard look at the Tax Court. This bipartisan piece of legislation will improve this Court in a number of ways, and I would like to take a moment to summarize some of its provisions. First, the TCMA would make minor changes in the Tax Court's jurisdiction. These are small changes that will have a big impact on the Court's efficiency. For example, the bill would allow the Tax Court to hire employees on its own, just as other courts do. Currently, the Tax Court is forced to hire through the Executive Branch's Office of Personnel Management, entangling the executive power with the judicial power. Restoring the constitutional separation of powers in the hiring process will increase the independence of the Tax Court. Second, the TCMA would improve the way that Tax Court judges receive retirement benefits and other non-salary benefits. I believe that Tax Court judges should be treated the same way that bankruptcy, Court of Federal Claims, and Article III judges are treated when it comes to fringe benefits. Tax Court judges are often not provided with the same benefits as similarly appointed Article I and Article III judges. For example, Congress allows Article III, bankruptcy, and Court of Federal Claims judges to participate in the Thrift Savings Plan in addition to the Civil Service Retirement System, while Tax Court judges are ineligible to participate in this program. These disparities in the treatment of our Tax Court judges affect the Court's ability to attract and retain seasoned judges, as well as talented employees. This legislation is non-controversial and is the result of many years of work. The Finance Committee passed the bill three separate times during the 108th Congress, but it unfortunately was not included in a vehicle that made it to enactment. Hopefully, we will be able to get these provisions to the President's desk this year. I have spent many years observing the Federal judiciary. I have spent many years trying to improve the Judicial Branch of our government and to make it the very finest court system the world has ever known. I look forward to working with my colleagues on the Senate Finance Committee on this important piece of legislation. I urge my colleagues, both on the Finance Committee and in the Senate as a whole, to support this legislation. I ask unanimous consent to print in the Record a summary of the provisions of the U.S. Tax Court Modernization Act.

Mr. HATCH

Mr. HATCH. Mr. President, how much time do I have?

Mr. HATCH. For a minute there I was so out of it tonight when you were talking, I thought it was about the ``Snow-White'' amendment instead of Snowe-Wyden. It took me a little while to catch on here. I just couldn't resist that. I have to say, I sat through all these meetings and I never once heard Secretary Thompson say that he wanted this authority. In any event, let me just speak about the Snowe-Wyden amendment, which they are trying to make into the ``Snow-White'' amendment, it seems to me. In my opinion, this amendment guts one of the most important provisions of the Medicare Modernization Act of 2003. Supporters of this amendment imply, wrongly in my opinion, that the price charged to beneficiaries is not subject to negotiation. That could not be further from the truth. The truth is, Medicare prescription drug plans will be negotiating with drug makers. These negotiations are the very heart of the new Medicare drug benefit. We do not want to open the door to Government price controls for prescription drugs. The noninterference clause in the Medicare Modernization Act does not prohibit Medicare from negotiating with drug makers. It prohibits CMS from interfering in those negotiations. That is a far cry from some of the earlier statements that have been made on this floor regarding this provision. I happen to care a great deal for the two sponsors of this amendment. I have worked very closely with them throughout their tenure and my tenure in the Senate. But they are simply wrong on this amendment. Let me be clear, the non-interference clause is at the heart of the law's structure for delivering prescription drug benefits. This clause ensures those savings will result from market competition, rather than through price fixing by the CMS bureaucracy. That is what was behind this. Let's not distort these provisions. What is ironic about what the other side is saying is that the same non-interference clause was in the Daschle-Kennedy-Rockefeller bill and the Gephardt-Dingell-Stark bills in the year 2000, as has been explained by our distinguished chairman of the Finance Committee. In administering the prescription drug benefit program established under this part, the Secretary may not--No. 1, require a particular formulary or institute a price structure for benefits; No. 2, interfere in any way with negotiations between private entities and drug manufacturers, or wholesalers; or No. 3, otherwise interfere with the competitive nature of providing a prescription drug benefit through private entities. What is the source of that language? It is from S. 2541, the Medicare Expansion for Needed Drugs, or MEND, Act, introduced in 2000. Think about it, some of the very people who are criticizing this provision in the Medicare Modernization Act tonight supported this language in 2000. I must remind my colleagues that former Senator Daschle once said: Our plan gives seniors the bargaining power that comes with numbers. . . . Our plan mirrors the best practices used in the private sector. For beneficiaries in traditional Medicare, prescription drug coverage would be delivered by private entities that negotiate prices with drug manufacturers. This is the same mechanism used by private insurers. Think about that. I think those who advance these arguments that you cannot have competitive work with regard to drug pricing are wrong and ought to quit playing politics with a bill that is so important for senior citizens all over this country. Those who suggest this non-interference language will drive up the cost of implementing the law simply do not have the facts or the legislation on their side. This is what the CBO said about eliminating the non-interference clause in a letter last year: [T]he Secretary would not be able to negotiate prices that further reduce federal spending to a significant degree. I do not ever recall, and I sat through all of the meetings, day after day, hour after hour--I do never recall Secretary Thompson asking for that authority. The CBO in that letter went on to say: CBO esimates that substantial savings will be obtained by the private plans. Now, let us be clear: Direct Government negotiation is not the answer. The Government does not negotiate drug prices. That would be price control, and it would inevitably cause prices to rise as companies would not be able to do business in this country as they have in the past. The Medicare Modernization Act's entire approach is to get Medicare beneficiaries the best deal through vigorous market competition, not price controls. Let me conclude by saying that this amendment is not something that is in the best interest of our Medicare beneficiaries. Medicare beneficiaries do not want or need the Government to determine the cost of their drugs. Price fixing will lead to higher costs and does that help or hurt beneficiaries? I think everyone in this body knows the answer to that question but let me be clear--voting in favor of this amendment is not in the best interest of beneficiaries because they are going to have to pay more money for their prescriptions. Voting for this amendment will take away choice in prescription drug coverage--if this amendment passes, drug prices will not be dictated by the free market, they will be dictated by the Federal Government. I urge my colleagues to vote no on the Snowe-Wyden amendment. Frankly, let me just make that point one more time: The Medicare Modernization Act does not prohibit Medicare from negotiating with drugmakers. It prohibits CMS from interfering in those negotiations. That is a fact. I urge my colleagues to vote no on the Snowe-Wyden amendment. I appreciate my colleagues' desire to straighten out some of these matters, but the fact of matter is they are wrong on this issue and we should vote this amendment down.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the Paiute Indian Tribe Land Conveyance Act of 2005. This bill would authorize the Secretary of the Interior to convey or transfer four small Paiute trust land parcels to the city of Richfield. The Paiute Indian Tribe Land Conveyance Act of 2005 would allow the Secretary of the Interior to transfer three acres of land held in trust for the Paiute Indian Tribe of Utah to the city of Richfield, UT. The city of Richfield would provide fair market value compensation directly to the tribe, and pay any costs incurred in this transaction. This land transfer would allow expansion of the Richfield Municipal Airport and provide the Tribe with proceeds to purchase land that has economic development potential. This bill passed the House last year and I introduced it in the Senate, but the Senate bill did not make it through the legislative process prior the end of the 108th Congress. This proposal has support from all sides. The city of Richfield approached the Tribe about acquiring this parcel of land adjacent to the airport runway. The Tribe agreed and the Paiute Tribal Council passed Resolution 01-36, unanimously agreeing to the conveyance of this parcel of land to the City. The land in question has not been used by the Tribe for more than 20 years. It is not contiguous to the Paiute's Reservation and for nearly 30 years now has had no economic development potential. The tribal resolution expresses the Paiute's desire to accept the city's offer to purchase the land at fair market value and serves as the request to the Secretary of the Interior to convey the trust land. However, only an act of Congress may authorize this land conveyance. The Paiute Indian Tribe Land Conveyance Act of 2005 would also transfer three trust land parcels, each an acre or less in size, from the Tribe to its Kanosh and Shivwits Bands. All parcels would remain in trust status. The first parcel of one acre would be transferred from land held in trust by the United States for the Paiute Tribe to land held in trust for the Kanosh Band. This parcel is surrounded by 279 acres of land that is either owned by the Kanosh Band or held in trust for the Kanosh Band. For more than twenty years, the sole use of this land has been for the Kanosh Band Community Center. The second parcel, two-thirds of an acre in size, would also be transferred from the Tribe to the Kanosh Band. The land has been used exclusively by the Kanosh Band. It was originally intended that the land be taken in trust for the Kanosh Band in 1981 under the Paiute Indian Tribe of Utah Restoration Act. However, through an administrative error, the land was mistakenly placed in trust for the Tribe. By way of several Band resolutions, the Kanosh Band has formally requested correction of this error. The third parcel of land, less than an acre in size, would be transferred from the Tribe to be held in trust for the Shivwits Band. The land already is surrounded by several thousand acres of land held in trust for the Shivwits band, and its sole use has been for the Shivwits Band Community Center. Finally, the bill would eliminate the word ``City'' from the current official name of the ``Cedar City Band of Paiute Indians,'' a name which has never been used by the Band of residents of southwestern Utah. Thus, the bill makes clear that any reference in a law, map, regulation, document, paper, or other record, of the United States to the ``Cedar City Band of Paiute Indians'' shall be deemed to be reference to the ``Cedar Band of Paiute Indians.'' I would like to make some clarifications as part of the record. This bill has language that would allow the city of Richfield to purchase land from the Tribe and provide payment directly to the Tribe without the funds being funneled through the Department of the Interior. I support that provision. The bill also has a provision that would make lands which were acquired by the United States in trust for the Tribe, after February 17, 1984 and prior to the date of the enactment of this legislation, a part of the reservation. this clarifies the intent that lands already in possession of the tribe should be part of the reservation. I would also like to clarify that nothing in this legislation authorizes the Secretary of the Interior to make land conveyances for any tribe or band without their official consent to such a conveyance. This bill will cost U.S. taxpayers nothing, but it will solve the dilemma that the city of Richfield faces as it works to make its airport meet the needs of the citizens of southwestern Utah. Equally important is the fact that this bill will allow the Paiute Tribe to use the proceeds from the land sale to acquire land with economic development potential to facilitate the well-being of the Tribe. The bill also takes care of non-controversial land adjustments and technical corrections. The bill is supported by the Paiute Tribe, its Bands, and the people of southwestern Utah residing nearby. That is why I am introducing this legislation that would convey or transfer small Paiute trust land parcels. I thank the Senate for the opportunity to address this issue today, and I urge my colleagues to support the passage of the Paiute Indian Tribe Land Conveyance Act of 2005.

Mr. HATCH. Mr. President, I am very pleased to join with my friend and colleague Senator Baucus and several of our Finance Committee colleagues from both sides of the aisle today in introducing legislation that would permanently extend and improve the research tax credit. Extending the research credit is an important step for the future economic growth of the United States. A permanent credit can help our economy develop the new technologies that will enhance existing capital inputs and make workers more productive. The result will be a stronger economy at home, and a more competitive nation abroad. As many of our colleagues are aware, the current research credit is set to expire on December 31, 2005. I believe that if we allow the research credit to expire, we will see the negative effects manifest in lower economic growth, fewer jobs created, fewer innovative products, and lost opportunities as research activities move to other countries with more attractive incentives. We should never forget that our Nation's future economic health is dependent on the innovations of today. In assessing the health of our economy, we find an important correlation between economic growth and inflationary pressures. One sure way to have strong economic growth without the pain of inflation is to increase productivity. And most productivity gains are derived from technological advances, which reduce the cost of producing goods and services, and thereby help maintain low consumer prices. An additional benefit of productivity growth is a corresponding increase in corporate profits. Such increases lead to higher returns on savings and investment, and higher wages for workers. I believe the greatest benefit of increased R&D is productivity growth, which in turn forms the foundation of higher living standards. Productivity growth also largely determines our society's long-term economic welfare. Our ability to deal with budgetary challenges, such as Social Security, Medicare, and other entitlements, depends critically on the future direction of our productivity. From 1995 through 2003, average annual productivity growth was three percent, double the 1.5 percent growth rate that prevailed between 1973 and 1995. According to economists, this surge in productivity is the result of businesses beginning to efficiently integrate computer and information technology into day-to-day operations. We need a strong and permanent research credit in order to continue these gains in productivity growth. My home State of Utah is a good example of how State economies currently benefit from the research credit. Utah is home to various firms that invest a high percentage of their revenue in R&D. There are thousands of employees working in Utah's technology based companies, with thousands more working in other sectors that engage in R&D. Approximately 5 percent of the State's non-agricultural workforce is employed in research-intensive, high technology sectors. Moreover, high technology jobs pay substantially more than the Utah average. In 2004, high technology payrolls accounted for 9.2 percent of Utah's total payrolls. This is a significant proportion considering technology jobs make up only 5 percent of the workforce. Utah's largest technology segment is in computer systems design, which accounts for more than 20 percent of the State's technology employment with approximately 10,700 workers. Furthermore, this sector is Utah's second highest exporter of merchandise. This is a prime example of an industry group contributing directly to the productivity expansion I mentioned earlier. The medical equipment manufacturing industry makes up another substantial R&D industry group employing nearly 8,000 Utahns. This industry has been an important and relatively stable component of the technology sector for many years. Utah profits from, and also imparts, many ``spill-over'' benefits from the innovations developed both within and outside of the state. To give one example, more than 7,000 people work in Utah's chemical industry. This industry is the State's fourth-largest exporter. It benefits greatly from R&D taking place in Utah and throughout the country, and it shares the benefits with its trade partners. Research and development is clearly the lifeblood of Utah's economy. Since 1981, when the research credit was first enacted, the Federal Government has joined in partnership with large and small businesses to ensure that research expenditures are made in the United States. This enhances domestic job creation, and helps the United States to internalize more of the economic benefits from the research credit. It seems clear that to grow our economy we must enhance our position as the world leader in technological advances. Consequently, robust R&D spending should permeate our economy. We simply must continue to invest in research and development, and the Federal Government needs to reaffirm its role as a partner with the private sector. To achieve this, I have long advocated a permanent credit, and this body is overwhelmingly on record in favor of that proposition. During the Senate's debate on the 2001 tax cut bill, I offered, and the Senate adopted, an amendment to provide for such a permanent credit. Unfortunately, that provision was dropped in conference and we lost a great opportunity. Once again, I want to ask my colleagues to make this credit permanent. I think we all know that this credit is going to be extended, again and again, every few years. It takes time and energy for my colleagues to revisit this issue every few years. Can we not just, once and for all, make this provision permanent? We know this is good policy, and it is one of the most effective tax incentives in the code. Even under today's permanently temporary credit, every dollar of tax credit is estimated to increase R&D spending by one dollar in the short run and by up to two dollars in the long run. And if we make this permanent, those incentives will only improve. While the research credit has proven to be a powerful incentive for companies to increase research and development activities, it unfortunately does not work perfectly. One reason is that the credit is incremental, and was designed to reward additional research efforts, not just what a company might have done otherwise. From a tax policy perspective, I believe this is the best way to provide an incentive tax credit. Nevertheless, it is difficult to craft an incremental credit that works flawlessly in every case. While the credit works well for many companies, it does not help some firms that still incur significant research expenditures. This is because the credit's base period of 1984 through 1988 is growing more distant and some firms' business models have changed. To address this problem, we have added a third way to qualify for the credit, an elective ``alternative simplified credit.'' We propose to base this new alternative credit on how much a company has increased its R&D spending compared to the last three years. Companies will average their R&D spending over the previous three years, and cut that number in half. For every dollar they spend over that amount, they get a 12 percent tax credit. If they spend less than that amount, they get no credit at all. This is why this credit is so effective--it gives benefits to companies that do more, and gives no benefits to companies that do less. That is good tax policy, and good growth policy. The United States needs to continue to be the world's leader in innovation. We cannot afford to allow other countries to lure away the research that has always been done here. We cannot afford to have the lapses in the research pipeline that would result if we do not take care of extending this credit before it expires on December 31. In conclusion, making the research tax credit permanent will increase the growth rate of our economy. It will mean more and better jobs for American workers. Making the tax credit permanent will speed economic growth. And new technology resulting from American research and development will continue to improve the standard of living for every person in the U.S. and around the world. I look forward to working with my colleagues to create a permanent, improved research credit. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the Paiute Indian Tribe Land Conveyance Act of 2005. This bill would authorize the Secretary of the Interior to convey or transfer four small Paiute trust land parcels to the city of Richfield. The Paiute Indian Tribe Land Conveyance Act of 2005 would allow the Secretary of the Interior to transfer three acres of land held in trust for the Paiute Indian Tribe of Utah to the city of Richfield, UT. The city of Richfield would provide fair market value compensation directly to the tribe, and pay any costs incurred in this transaction. This land transfer would allow expansion of the Richfield Municipal Airport and provide the Tribe with proceeds to purchase land that has economic development potential. This bill passed the House last year and I introduced it in the Senate, but the Senate bill did not make it through the legislative process prior the end of the 108th Congress. This proposal has support from all sides. The city of Richfield approached the Tribe about acquiring this parcel of land adjacent to the airport runway. The Tribe agreed and the Paiute Tribal Council passed Resolution 01-36, unanimously agreeing to the conveyance of this parcel of land to the City. The land in question has not been used by the Tribe for more than 20 years. It is not contiguous to the Paiute's Reservation and for nearly 30 years now has had no economic development potential. The tribal resolution expresses the Paiute's desire to accept the city's offer to purchase the land at fair market value and serves as the request to the Secretary of the Interior to convey the trust land. However, only an act of Congress may authorize this land conveyance. The Paiute Indian Tribe Land Conveyance Act of 2005 would also transfer three trust land parcels, each an acre or less in size, from the Tribe to its Kanosh and Shivwits Bands. All parcels would remain in trust status. The first parcel of one acre would be transferred from land held in trust by the United States for the Paiute Tribe to land held in trust for the Kanosh Band. This parcel is surrounded by 279 acres of land that is either owned by the Kanosh Band or held in trust for the Kanosh Band. For more than twenty years, the sole use of this land has been for the Kanosh Band Community Center. The second parcel, two-thirds of an acre in size, would also be transferred from the Tribe to the Kanosh Band. The land has been used exclusively by the Kanosh Band. It was originally intended that the land be taken in trust for the Kanosh Band in 1981 under the Paiute Indian Tribe of Utah Restoration Act. However, through an administrative error, the land was mistakenly placed in trust for the Tribe. By way of several Band resolutions, the Kanosh Band has formally requested correction of this error. The third parcel of land, less than an acre in size, would be transferred from the Tribe to be held in trust for the Shivwits Band. The land already is surrounded by several thousand acres of land held in trust for the Shivwits band, and its sole use has been for the Shivwits Band Community Center. Finally, the bill would eliminate the word ``City'' from the current official name of the ``Cedar City Band of Paiute Indians,'' a name which has never been used by the Band of residents of southwestern Utah. Thus, the bill makes clear that any reference in a law, map, regulation, document, paper, or other record, of the United States to the ``Cedar City Band of Paiute Indians'' shall be deemed to be reference to the ``Cedar Band of Paiute Indians.'' I would like to make some clarifications as part of the record. This bill has language that would allow the city of Richfield to purchase land from the Tribe and provide payment directly to the Tribe without the funds being funneled through the Department of the Interior. I support that provision. The bill also has a provision that would make lands which were acquired by the United States in trust for the Tribe, after February 17, 1984 and prior to the date of the enactment of this legislation, a part of the reservation. this clarifies the intent that lands already in possession of the tribe should be part of the reservation. I would also like to clarify that nothing in this legislation authorizes the Secretary of the Interior to make land conveyances for any tribe or band without their official consent to such a conveyance. This bill will cost U.S. taxpayers nothing, but it will solve the dilemma that the city of Richfield faces as it works to make its airport meet the needs of the citizens of southwestern Utah. Equally important is the fact that this bill will allow the Paiute Tribe to use the proceeds from the land sale to acquire land with economic development potential to facilitate the well-being of the Tribe. The bill also takes care of non-controversial land adjustments and technical corrections. The bill is supported by the Paiute Tribe, its Bands, and the people of southwestern Utah residing nearby. That is why I am introducing this legislation that would convey or transfer small Paiute trust land parcels. I thank the Senate for the opportunity to address this issue today, and I urge my colleagues to support the passage of the Paiute Indian Tribe Land Conveyance Act of 2005.

Mr. HATCH

Mr. HATCH. Mr. President, I am very pleased to join with my friend and colleague Senator Baucus and several of our Finance Committee colleagues from both sides of the aisle today in introducing legislation that would permanently extend and improve the research tax credit. Extending the research credit is an important step for the future economic growth of the United States. A permanent credit can help our economy develop the new technologies that will enhance existing capital inputs and make workers more productive. The result will be a stronger economy at home, and a more competitive nation abroad. As many of our colleagues are aware, the current research credit is set to expire on December 31, 2005. I believe that if we allow the research credit to expire, we will see the negative effects manifest in lower economic growth, fewer jobs created, fewer innovative products, and lost opportunities as research activities move to other countries with more attractive incentives. We should never forget that our Nation's future economic health is dependent on the innovations of today. In assessing the health of our economy, we find an important correlation between economic growth and inflationary pressures. One sure way to have strong economic growth without the pain of inflation is to increase productivity. And most productivity gains are derived from technological advances, which reduce the cost of producing goods and services, and thereby help maintain low consumer prices. An additional benefit of productivity growth is a corresponding increase in corporate profits. Such increases lead to higher returns on savings and investment, and higher wages for workers. I believe the greatest benefit of increased R&D is productivity growth, which in turn forms the foundation of higher living standards. Productivity growth also largely determines our society's long-term economic welfare. Our ability to deal with budgetary challenges, such as Social Security, Medicare, and other entitlements, depends critically on the future direction of our productivity. From 1995 through 2003, average annual productivity growth was three percent, double the 1.5 percent growth rate that prevailed between 1973 and 1995. According to economists, this surge in productivity is the result of businesses beginning to efficiently integrate computer and information technology into day-to-day operations. We need a strong and permanent research credit in order to continue these gains in productivity growth. My home State of Utah is a good example of how State economies currently benefit from the research credit. Utah is home to various firms that invest a high percentage of their revenue in R&D. There are thousands of employees working in Utah's technology based companies, with thousands more working in other sectors that engage in R&D. Approximately 5 percent of the State's non-agricultural workforce is employed in research-intensive, high technology sectors. Moreover, high technology jobs pay substantially more than the Utah average. In 2004, high technology payrolls accounted for 9.2 percent of Utah's total payrolls. This is a significant proportion considering technology jobs make up only 5 percent of the workforce. Utah's largest technology segment is in computer systems design, which accounts for more than 20 percent of the State's technology employment with approximately 10,700 workers. Furthermore, this sector is Utah's second highest exporter of merchandise. This is a prime example of an industry group contributing directly to the productivity expansion I mentioned earlier. The medical equipment manufacturing industry makes up another substantial R&D industry group employing nearly 8,000 Utahns. This industry has been an important and relatively stable component of the technology sector for many years. Utah profits from, and also imparts, many ``spill-over'' benefits from the innovations developed both within and outside of the state. To give one example, more than 7,000 people work in Utah's chemical industry. This industry is the State's fourth-largest exporter. It benefits greatly from R&D taking place in Utah and throughout the country, and it shares the benefits with its trade partners. Research and development is clearly the lifeblood of Utah's economy. Since 1981, when the research credit was first enacted, the Federal Government has joined in partnership with large and small businesses to ensure that research expenditures are made in the United States. This enhances domestic job creation, and helps the United States to internalize more of the economic benefits from the research credit. It seems clear that to grow our economy we must enhance our position as the world leader in technological advances. Consequently, robust R&D spending should permeate our economy. We simply must continue to invest in research and development, and the Federal Government needs to reaffirm its role as a partner with the private sector. To achieve this, I have long advocated a permanent credit, and this body is overwhelmingly on record in favor of that proposition. During the Senate's debate on the 2001 tax cut bill, I offered, and the Senate adopted, an amendment to provide for such a permanent credit. Unfortunately, that provision was dropped in conference and we lost a great opportunity. Once again, I want to ask my colleagues to make this credit permanent. I think we all know that this credit is going to be extended, again and again, every few years. It takes time and energy for my colleagues to revisit this issue every few years. Can we not just, once and for all, make this provision permanent? We know this is good policy, and it is one of the most effective tax incentives in the code. Even under today's permanently temporary credit, every dollar of tax credit is estimated to increase R&D spending by one dollar in the short run and by up to two dollars in the long run. And if we make this permanent, those incentives will only improve. While the research credit has proven to be a powerful incentive for companies to increase research and development activities, it unfortunately does not work perfectly. One reason is that the credit is incremental, and was designed to reward additional research efforts, not just what a company might have done otherwise. From a tax policy perspective, I believe this is the best way to provide an incentive tax credit. Nevertheless, it is difficult to craft an incremental credit that works flawlessly in every case. While the credit works well for many companies, it does not help some firms that still incur significant research expenditures. This is because the credit's base period of 1984 through 1988 is growing more distant and some firms' business models have changed. To address this problem, we have added a third way to qualify for the credit, an elective ``alternative simplified credit.'' We propose to base this new alternative credit on how much a company has increased its R&D spending compared to the last three years. Companies will average their R&D spending over the previous three years, and cut that number in half. For every dollar they spend over that amount, they get a 12 percent tax credit. If they spend less than that amount, they get no credit at all. This is why this credit is so effective--it gives benefits to companies that do more, and gives no benefits to companies that do less. That is good tax policy, and good growth policy. The United States needs to continue to be the world's leader in innovation. We cannot afford to allow other countries to lure away the research that has always been done here. We cannot afford to have the lapses in the research pipeline that would result if we do not take care of extending this credit before it expires on December 31. In conclusion, making the research tax credit permanent will increase the growth rate of our economy. It will mean more and better jobs for American workers. Making the tax credit permanent will speed economic growth. And new technology resulting from American research and development will continue to improve the standard of living for every person in the U.S. and around the world. I look forward to working with my colleagues to create a permanent, improved research credit. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Madam President, the crisis created by the unprecedented use of filibusters to defeat judicial nominations must be solved while preserving two important Senate traditions. On the one hand, extended debate is an important part of how the United States Senate conducts its legislative business. On the other hand, we have traditionally given judicial nominations reaching the Senate floor a final confirmation decision. Two years ago, this latter tradition was attacked when the filibuster was used for the first time to defeat majority supported judicial nominations. Mr. President, these are two different and important traditions and each must be preserved. Solving this crisis by restoring Senate tradition is not a partisan step, but is in the interest of the Senate as an institution. Both Republicans and Democrats should follow the same standard, no matter which party occupies the White House or runs the Senate. Neither Democrats nor Republicans should have to go through this vicious cycle of filibusters against qualified judicial nominees. Let me first clarify once again the situation in which we find ourselves. Before 2003, no majority supported judicial nomination had been defeated by a filibuster. Under our Rule XXII, we did vote on motions to end debate on judicial nominations, though we did so just 15 times in 35 years. Simply taking a cloture vote, however, does not mean a filibuster is underway. In fact, some of those cloture votes were used deliberately to prevent filibusters, clearing the procedural path and guaranteeing an up or down confirmation vote. Some have been used for floor management purposes. We did so even on very controversial nominations, such as President Clinton's choices of Richard Paez and Marsha Berzon for the U.S. Court of Appeals for the Ninth Circuit. Before 2003, only one judicial nomination on which cloture was not invoked was not confirmed. Opposition to cloture on the controversial 1968 nomination of Abe Fortas to be Chief Justice was evenly bipartisan and showed that the nominee lacked clear majority support. At the nominee's request, President Lyndon Johnson withdrew the nomination the next day. Senator Robert Griffin, from Michigan, who led opposition to the nomination, personally told me that there never was an intention to use the filibuster to defeat the Fortas nomination. There was no need, since the votes were there to defeat the nomination outright. Lyndon Johnson knew it and that is why they withdrew the nomination rather than be embarrassed by the bipartisan vote of both parties against the nominee. Before 2003, if the Senate rejected a judicial nomination that reached the Senate floor, we did so by voting it down; filibusters did not prevent a final vote in order to keep a nomination from confirmation. The break with that tradition came in 2003. During the 108th Congress alone, we voted on motions to end debate on judicial nominations 20 times. Each vote failed, and opposition to cloture was completely partisan. None of those nominees was confirmed, though each had clear bipartisan majority support. Those who want to end this Senate tradition of giving judicial nominations reaching the Senate floor an up or down vote fear they will lose if we follow that tradition. To them, the end of defeating President Bush's judicial nominations justifies the means of destroying Senate tradition. Being honest about it would reveal how such partisan strategies are politicizing the judicial appointment process, so they try to make other arguments. They claim Republicans filibustered President Clinton's judicial nominations, but each of his judicial nominees on whom we took a cloture vote is today a sitting Federal judge. They claim they don't filibuster very often, which is beside the point if using the filibuster against judicial nominations violates constitutional principles and departs from Senate tradition. There have already been enough judicial nomination filibusters to give President Bush the lowest appeals court confirmation rate of any president since Franklin Roosevelt. Or they claim they filibuster only nominees who are out of some kind of mainstream. It is difficult to know what that charge really means, especially since the American Bar Association--which Democrats once considered the gold standard--has found them qualified. Senators may, of course, vote against a judicial nominee for any reason they wish, but we should stop pretending that out of the mainstream is anything more than a prediction that the nominee may not always rule the way liberal interest groups want. Considering the stream in which many of those groups swim, I'm not so sure this isn't a compliment. If the mainstream really mattered, though, these filibusters would never have started. Newspaper editorials opposing filibusters of judicial nominations outnumber those supporting them by at least six-to-one. Madam President, I ask unanimous consent that some representative editorials from mainstream newspapers be printed in the Record.

Mr. HATCH. These may be their reasons, but there are no excuses. At the mere suggestion of abandoning the Senate's tradition regarding judicial nominations when President Clinton was in office, former Democratic Leader Tom Daschle said, ``I find it simply baffling that a Senator would vote against even voting on a judicial nomination.'' That should be our response today as Senators on both sides of the floor. Last week here on the Senate floor, the distinguished Senator from West Virginia made his case against returning to Senate tradition regarding judicial nominations. I respect him. I have a lot of regard for him, but I have to confess I was surprised that someone with such knowledge of the traditions and rules of this body would appear so willing to abandon tradition. He equated the filibuster with the Senate itself. He equated filibustering judicial nominations with filibustering legislation and concluded that returning to our tradition regarding judicial nominations would be an attack on the Senate somehow. I would like to address each of these elements because I do not believe they can withstand fair scrutiny. First, my friend from West Virginia argued that the Senate was designed from its very inception as a place of absolutely unfettered and completely unlimited debate. As such, he argues, any limitation of debate strikes at the very heart of the institution itself. Yet in the second volume of his own history of the Senate, he writes on page 115: It is apparent that the Senate in the First Congress disapproved of unlimited debate. The original rule IV prohibiting a Senator from speaking more than twice in any one debate on the same day without leave of the Senate remains in only slightly modified form as our rule XIX today. Even more significantly, rule VIII in the first Senate provided for a majority to proceed to a vote by calling the previous question. Coupled with the Founders' expressed commitment to majority rule, these facts demonstrate that even with regard to legislation, the possibility of preventing final action through extended debate was not created by original design. It arose by default through dropping that previous question rule in 1806. It would still be decades before Senators who sought to protect the institution of slavery would discover they could use this procedural loophole to their advantage and, of course, the filibuster was born. Its twin, however, was a parallel and ongoing effort at filibuster reform by which we have actively sought properly to balance the minority's right to debate and the majority's right to decide. The solution we seek today is part of that ongoing effort. The Senator from West Virginia next equated filibusters of judicial nominations with filibusters of legislation. His policy arguments in favor of the filibuster, however, apply only to the legislative process. He said, for example, that without the filibuster ``there exists no leverage with which to bargain for the offering of an amendment. All force to effect compromise between the parties will be lost.'' I note that in previous debates about filibuster reform, such as in 1975, Democrats, such as the senior Senator from Massachusetts, Mr. Kennedy, offered this very same argument against the filibuster. Still, this notion obviously applies where the Senate either fashions or effects legislation, but it is irrelevant to nominations. The Senator from West Virginia has long been this Chamber's leading expert on our history and procedure. For that I compliment him. For this reason, though, I was disappointed that he would fail to make such an important distinction between legislative and judicial nomination filibusters, a distinction based on both historical fact and constitutional principle. In other words, there is a difference between the legislative calendar and the executive calendar in the Senate. The Senator from West Virginia is not the first in the debate over these new judicial nomination filibusters failing to make this critical distinction. Other Democratic Senators, for example, want to use the cup-and-saucer analogy by which George Washington allegedly described pouring hot action from the House cup to cool in the deliberation of the Senate saucer. As Jeffrey Toobin's recent analysis in the New Yorker magazine points out, however, not only is this story probably apocryphal, but the supposed exchange between Washington and Jefferson specifically focused on, you got it, legislation. In fact, that is the only context in which it makes any sense. If they said it at all, they were talking about the relationship between the two Houses within the legislative branch, not the relationship between the legislative and executive branches. The distinction between legislative and judicial filibusters is a matter of historical fact. Every example offered last week by my friend from West Virginia involved legislation. He opened and closed his speech by evoking scenes from the classic film ``Mr. Smith Goes to Washington.'' I went back and checked the script. Senator Jefferson Smith in that movie, played by the great Jimmy Stewart, filibustered an appropriations bill. That is legislation. The example the Senator from West Virginia said was most relevant-- President Franklin Roosevelt's proposal to reorganize the judiciary-- was also, you got it, legislation. That example is actually not relevant at all, however, because that 1937 legislation was not defeated by a filibuster. The most definitive study of President Roosevelt's plan by Mary McKenna concludes that it did not have majority support in the Senate at all. There was no need for a filibuster. Rather than the majority being stymied in its attempt to pass the bill, the majority--and an overwhelming majority at that--sent it back to committee. To my knowledge, no Senators are today calling for an end to the legislative filibuster as a group of Democratic Senators did a decade ago. Nine of them, led by the Senator from Iowa, Tom Harkin, and the Senator from Connecticut, Joseph Lieberman, serve in this body today. They argued back then that all filibusters, including those of legislation, unconstitutionally infringe on majority rule. The two Senators from Massachusetts, Edward Kennedy and John Kerry, along with the Senator from California, Barbara Boxer, the Senator from New Jersey, Frank Lautenberg, the Senator from Maryland, Paul Sarbanes, the Senator from New Mexico, Jeff Bingaman, and the Senator from Wisconsin, Russ Feingold, voted against tabling that proposal. I find it simply baffling that Senators who once supported abolishing the Senate tradition of legislative filibusters would today support establishing a tradition of judicial nomination filibusters--in other words, filibusters of nominees by the President on the executive calendar, not the legislative calendar. Ignoring the distinction between legislative and judicial nomination filibusters is necessary for the argument of the Senator from West Virginia, as evidenced when he asked: If we restrain debate on judges today, what will be next? Yet for more than a century, filibusters of legislation coexisted nicely with our tradition of giving up-or-down votes to judicial nominations that reach the Senate floor. Our experience under the current version of rule XXII shows that these two traditions can peacefully coexist. That rule, by the way, was born in 1917 after a filibuster of legislation. We have had the current version of rule XXII since 1975. From 1975 to 2002, the 94th Congress through the 107th Congress, only 3 percent of cloture votes were judicial nominations; 85 percent of those cloture votes passed, and all nominations subject to cloture votes were confirmed. During the 108th Congress, 49 percent of cloture votes were on traditional nominations. None of them passed, and none of the nominations were confirmed. I must say, with all due respect to my dear friend from West Virginia, that using the filibuster to defeat majority-supported judicial nominations has not been part of even modern Senate practice, let alone historic Senate tradition. Let me repeat that. Using the filibuster to defeat majority-supported judicial nominations has not been part of even modern Senate practice, let alone historic Senate tradition. In his op-ed piece in the Washington Post last week, the Senator from West Virginia ignored our tradition regarding judicial nominations in another way. He argued that by preventing a confirmation vote through a filibuster, the Senate had formally rejected these judicial nominations. How can it be a rejection of judicial nominations when a majority of Senators supports confirmation of each one of those people? Each nominee on whom cloture was not invoked remained on the Senate's executive calendar. Our own rule XXXI states that nominations that are ``neither confirmed nor rejected'' shall be returned to the President. Each of those filibustered nominations was, indeed, returned to the President when the 108th Congress adjourned. By definition, common sense, and our own rules, that means they were not rejected. My friend from West Virginia cannot on the one hand claim these nominations were rejected but on the other hand claim that these filibusters are about deliberation and debate. Legislative and judicial nomination filibusters are different as a matter of historical fact because they are different as a matter of constitutional principle. Legislation belongs to the legislative branch under article I of our Constitution, while nomination and appointment belong to the President under article II. In Federalist No. 65, Alexander Hamilton wrote that the President would be the ``principal agent'' in appointments. The Senate has an important role of advice and consent that checks the President's appointment power, but we do not control the executive process any more than the President controls the legislative process. We recognize the difference between legislative and executive business when we leave legislative session and proceed to executive session to address nominations we have placed on the executive calendar. My friend from West Virginia, I think, ignored those differences. Interacting with the executive branch is simply not the same as interacting within the legislative branch. And thus it would seem almost self-evident that procedures we use regarding our authority over legislation might not be appropriate when we affect the President's authority over appointments. We must preserve our tradition that recognizes this constitutional distinction between the executive and legislative branches, between our role of advice and consent on judicial appointments, and our authority over legislation. The Senator from West Virginia, in my opinion, used an unfortunate analogy in attacking those who would return the Senate to its confirmation tradition regarding judicial nominations. Others, such as the Anti-Defamation League, have strongly objected to his reference to Hitler's Nazi regime for various reasons. My point here is not that. It is different. I object to his claim that returning to our tradition regarding judicial nominations would be an example of ``how men with motives and a majority can manipulate law to cruel and unjust ends.'' There is nothing cruel or unjust about the Senate returning to our traditional advice and consent role regarding judicial nominations. The Constitution gives the Senate the authority to determine our procedural rules. It was pursuant to that authority that the Senate dropped the previous question rule in 1806, adopted a cloture rule in 1917, and amended that rule several times since. It was also pursuant to that authority that the Senator from West Virginia aggressively used various strategies to change Senate procedures when he served as majority leader of this body. This includes approaches currently under discussion, such as seeking a ruling from the Senate's Presiding Officer. Though the Senator from West Virginia last week said such an approach would abandon the ``cloak of legality,'' it would simply be following a procedural path that he himself blazed. I was here for part of that. The Senator from West Virginia said this approach ``seeks to alter the rules by sidestepping the rules, thus making the impermissible the rule.'' Yet the Senate operates on the basis of parliamentary precedents and traditions, as well as by our standing rules, a history my friend from West Virginia helped shape and has been recognized as helping shape those rules. In 1977, for example, the Senator from West Virginia made a point of order that once cloture has been invoked, the Presiding Officer must rule dilatory amendments out of order. One Senator criticized this strategy as trying to change Senate rules by majority vote during the heat of the debate. That criticism sounds an awful lot like the criticism the Senator from West Virginia leveled last week against those who might take the same approach today. Nonetheless, the strategy succeeded when the full Senate tabled an appeal of the Presiding Officer's ruling in favor of the distinguished Senator from West Virginia. In 1979, the Senator from West Virginia introduced Senate Resolution 9 to make various changes to rule XXII. He argued that notwithstanding rule XXII's cloture requirement for rules changes, a simple majority could change Senate rules at the beginning of a new Congress. He was right. The current Senate, he argued, is not bound by the dead hand of the past Senate. He threatened that if the Senate did not come to a time agreement for considering his resolution, he would attempt to proceed by seeking a parliamentary ruling. Also in 1979, the Senator from West Virginia made a point of order that the Presiding Officer, rather than the Senate, as required under our rule XVI, ruled nongermane certain amendments to appropriations bills. As in 1977, that strategy worked when the Senate tabled an appeal of the Presiding Officer's ruling in favor of the Senator from West Virginia. In 1980, the Senator from West Virginia also secured a helpful parliamentary precedent but from a different procedural direction. He wanted to achieve confirmation for an individual nominee on the Executive calendar. At that time, while a motion to go into executive session was not debatable, a subsequent motion to proceed to a specific item on the Executive calendar was debatable. On March 5, 1980, the Senator from West Virginia made a single motion for the Senate both to go into executive session and to proceed to a specific nomination. When the Presiding Officer sustained a point of order against this motion, one Senator criticized this attempt to change procedure by majority vote. Nonetheless, the Senator from West Virginia appealed the Presiding Officer's ruling, which was his right to do, and the Senate overturned, supporting the distinguished Senator's majority rule change. This strategy might be described by some, using the Senator from West Virginia's words last week, as altering the rules by sidestepping the rules. It certainly limited what he now insists would be unfettered and unlimited debate. In 1987, the Senator from West Virginia secured a parliamentary precedent that obviously dilatory requests by Senators to be excused during a rollcall vote were out of order. This applied the same strategy he had used in 1977, getting the Presiding Officer to rule dilatory tactics out of order, in a new context. Each of these examples has similarities and differences with the current situation. I offer this detail only to demonstrate that Senate procedures have been changed through parliamentary rulings as well as by formal amendments to the rules themselves. As my friend from West Virginia has demonstrated by pursuing each of these strategies himself, the Senate can exercise its constitutional authority to determine its procedural rules either way. He may certainly believe that the changes he sought were warranted while the change we may seek today is not. That is his right, and he can express that right in debate by voting against such a change. But that difference of opinion does not make his attempts to limit debate, even on legislation, right and just while any attempt to do so today on judicial nominations cruel and unjust. We departed from our tradition of giving judicial nominations reaching the Senate floor an up-or-down vote only 2 years ago. The result has been the Senate's inability to do its constitutional duty of providing advice and consent regarding judicial nominations. We were able to give advice, I presume, but with regard to these 10 nominees we were never able to give consent or not consent, whichever the case may be. And that is done by a vote up and down. It demonstrates that the confirmation process is, in the words of the Washington Post, ``steadily degrading.'' Returning to that tradition of giving up-or-down votes for judicial nominations will not in the long run mean either party will always get its way. Both the executive branch and the Senate do change partisan hands from time to time. This standard, this tradition, knows no party and guarantees no partisan advantage. It applies no matter which party occupies the White House or which party controls the Senate. It would bind Republicans as well as Democrats and preserve our institutional traditions. I hope and believe, however, that restoring this tradition will, despite some Senators' threats to blow up the Senate, help restore some comity and good will to this body. Returning to that tradition, which recognizes the difference between our authority over legislation and the President's authority over appointments, is not an attack on the Senate; rather, it affirms our traditions and the Senate's unique place in our system of separated powers. Returning to it both respects the President's authority over appointments and asserts the Senate's role of advice and consent, not just advice but consent as well. A majority of Senators have been deprived of the right to give or not give consent by these irresponsible filibusters of judicial nominations on the Executive calendar. The deviation we have seen from that tradition, wherein a filibuster prevents confirmation of nominees with majority support, undermines the President's authority and distorts the Senate's role. Preserving both of our traditions--extended debate regarding legislation and up-or-down votes on judicial nominations reaching the Senate floor--will restore the proper balance. There is nobody in this body who respects the distinguished Senator from West Virginia more than I do. I hope we can resolve these matters so both parties are bound by the correct tradition that we are not going to filibuster executive branch nominees and we will both preserve the right to filibuster over the matters we totally control on the legislative calendar. I would fight to my death to preserve rule XXII on legislation because I have also been in the minority from time to time, and it was the only way we could stop some things which would have been just terrible for this country. But there is a difference between the legislative calendar and the Executive calendar. I respect my colleague from West Virginia. I can truthfully say I love him because he has been a strong force around here for years, but I hope he will look at some of these examples I have given and some of these thoughts I have and help us stop this impasse that is occurring in the Senate, not by preferring one party over the other but by binding both parties to treat Presidential nominations with the respect they deserve. I have to say I never quite concentrated on this enough until these judicial nominations were filibustered in 2003 and 2004. I myself am to blame for not having thoroughly studied this until these problems arose, but I have now studied it. I believe it would be far better for our Senate to get rid of these animosities and threats to have nuclear warfare and bind both the Republicans and the Democrats in the Senate to do what is right, to give a vote up or down, so that we can not only give advise but consent as well. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, one can have self-settled trusts. What the amendment of the distinguished Senator from New York does is do away with essentially all self-settled trusts. Frankly, Senator Schumer's amendment is so broad that it covers all settled trusts, not just fraud. The amendment of the distinguished Senator from Missouri covers fraud, and he does it in the appropriate way, a legal way, the way it should be done. I yield the remainder of my time to the distinguished Senator from Missouri.

Mr. HATCH

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

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to speak in favor of S. 256, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, and to thank all of the people who made this bill possible. This bankruptcy bill has been a long time coming. We all know how bankruptcy claims have skyrocketed since the last major bankruptcy reform bill in 1978. We all know about the abuses of the system. Well, that is about to change for the better. This bill is about fairness and accountability. We have made some important changes in this legislation. This bill contains a debtor's bill of rights with new protections that prevent bad actors from preying upon the uninformed. The bill also includes new consumer protections under the Truth in Lending Act, such as new required disclosures regarding minimum monthly payments and introductory rates for credit cards. It protects consumers from unscrupulous creditors, with new penalties on creditors who refuse to negotiate reasonable payment schedules outside of bankruptcy. S. 256 provides for protection of educational savings accounts, and it gives equal protection for retirement savings in bankruptcy. It helps women and children by providing a comprehensive set of protections for child and domestic support throughout the bankruptcy process. This legislation dramatically revises the reaffirmation agreement provisions of the Code. It imposes critical disclosure requirements that will put a stop to abusive practices. It makes the provisions relating to farmers in chapter 12 permanent and broadens its provisions. It cleans up the law governing complex exchanges and thereby reduces systemic risk in our marketplace. It acts to stop abuse. When this bill hit the floor on Monday, February 28, I mentioned that we were in the last leg of a legislative marathon. The finish line is finally in sight. I am pleased to have been a part of this process and I am even more pleased we are able to pass this important legislation, and I anticipate that it will pass shortly. This bill has been a long time in development. I am proud of what we have been able to accomplish. Today it seems it is finally going to cross the finish line, and it is well worth it. This bill may not lead to a severe reduction in the number of bankruptcies. I believe, though, that it will reduce the number of fraudulent and abusive filings and help educate consumers to keep their financial houses in order. This is always an important goal. No responsible society can long countenance the open flouting and abuse of its laws. This bill, with its means test, will discourage such abusive filings by restricting access to chapter 7 liquidation by those with relatively high incomes. We should all stand behind a law that requires people with the ability to repay their debts to actually repay those debts. Most of our debate on this bill has focused around the means test. There is no doubt that this will discourage some bankruptcy filings, but I also hope our credit counseling provisions will work to persuade even some low-income debtors that there is another way out. Right now, too many are only hearing one part of the story: Declare bankruptcy. Liquidate your debts. Some attorneys pushing this line, however, leave out the part about the years of ruined credit that result, the inability to get a car loan or a house loan. My hope is our modest credit counseling provisions will persuade some people to stay out of bankruptcy and meet their obligations, do what is right, and keep their credit alive. While a great majority of Senators support this bill, I know not all of my colleagues are pleased. Last night my friend from Massachusetts, Senator Kennedy, again voiced his strong opposition to this legislation. This was probably clear from my response. I vehemently disagree with his opinions about this bill, but I hope he understands that we are trying our best. Could we have done better? I have no doubt about that, not for a second, but I also know this bill has benefitted from some of Senator Kennedy's suggestions over the years. We have not ignored him, and I hope he understands we appreciate his participation. I also understand some of my colleagues feel that they may not have been treated fairly in this process. My desire throughout this process, and the desire of my colleagues who supported this bill, was always to act as an honest broker who took the suggestions of the other side with appropriate seriousness. I understand the frustration from some on the other side at the inability to get amendments agreed to or considered on the floor, but I hope they in turn can understand that we have tried our best on this side to balance all of the competing interests in this body while also trying to get this very important bill done. In particular, I think we could have done a better job of working through the technical amendments offered by Senator Feingold. Truth be told, I do not think all of these amendments were merely technical amendments. Be that it as it may, Senator Feingold had a right to submit his amendments at the committee and then on the floor. Perhaps the consideration of the Feingold amendments would have been more complete if we had all focused on these proposals earlier in this debate. I fully respect the right of the distinguished Senator from Wisconsin to offer his amendments, even if we know he is opposing the underlying bill, which he always has. Getting all the parties on board is an uphill climb. I was given the assignment by Chairman Specter to try to get this bill reported by the last recess. We accomplished that goal. In that process, I know Senator Feingold feels he did not get a fair hearing in the committee. I hope the final outcome today persuades him otherwise. For my part, I instructed my staff to meet with the staff of the distinguished Senator from Wisconsin after the markup. Our staffs met on a number of subsequent occasions. We were able to work out several agreements. Frankly, I was sympathetic to several features of other of his amendments. As we all recognize, proposing an amendment is much easier than getting an agreement on an amendment. I want him to know that we tried. In discussions with the sponsor of the bill, Senator Grassley, the chairman of the Judiciary Committee, Senator Specter, our leadership, Senator Sessions, who has played a significant role on this bill and others, we had to make a number of determinations over what amendments to support and what to exclude from the bill. These were not easy decisions, and sometimes they had to be made in conjunction with leaders in the House of Representatives, which is not unusual. We do try to work with them, if we can. In this case, I think we have been working with them. We could not accept all of Senator Feingold's amendments. I think he probably knows that, too. Our staffs made the effort to work through both the substance and the politics of the issues, and these consultations have borne some fruit. That is important to state, because I do not want my colleague to feel badly or feel he has not been treated fairly. I wish we could have found still more common ground, but after consulting with and facilitating consultations between Senator Feingold's staff and my staff and other Senate staff, we at least made some progress. I thank and congratulate Senator Grassley, the prime sponsor of this bill over the last 8 years. He has worked extraordinarily hard on this bill. It has been a long time in coming. My hat, as usual, is off to him. Senator Sessions is another Senator whose hard work made this possible. We all appreciate his work in the committee and on the floor during the last few weeks. I would also thank the majority leader, Senator Frist, and the majority whip, Senator McConnell, and the chairman of the Judiciary Committee for their efforts on behalf of this legislation. Chairman Specter has been here working hard for the people of Pennsylvania only days after his cancer treatments, and that is not easy to do, and certainly not easy since he has a continuation of those treatments. He is a heroic figure, in my eyes, for the way he has handled himself in this very difficult time. I must also thank Chairman Shelby, and Senator Sarbanes of the Banking Committee. We all know how vital the Banking Committee was to this process. We could not have gotten this done without their help. I believe that several Senators from across the aisle deserve recognition as well. I want to once again thank the Minority Leader, Senator Reid, and the Minority Whip, Senator Durbin, for helping to move this bill through the Senate. Senators Biden and Carper have worked tirelessly for years on this legislation, and they have taken some tough votes to get it done. Senator Nelson from Nebraska has also shown great resolve and deserves recognition for his efforts, particularly with respect to the provisions affecting farmers. Senator Johnson has also been committed to this legislation and I thank him. No thank you list would be complete without the Senator from Vermont. My dear friend Senator Leahy and I have not always agreed on every aspect of this legislation, but we have worked hard to make it better. Senator Leahy developed two important amendments that were accepted. Similarly, Senator Feingold--who has been an ardent opponent of this legislation--has nevertheless dedicated himself to improving it. I have enjoyed working with him, and several other Democratic members of the Judiciary Committee over the years--including Senators Feinstein, Kohl, Kennedy, Schumer and Durbin--to get this bill done. I would also like to take a moment to thank all of the staff who worked so hard to make this happen. I know that several of them--on both sides of the aisle--have not seen their significant others in weeks. We owe them a great debt of gratitude. If my colleagues would permit me, I would like to name a few of them. I think the record should reflect that Rene Augustine, a former counsel now at home with her new-born child, and Makan Delrahim and Manus Cooney, both former Judiciary Committee Chief Counsels, worked for years on this legislation and it would not have been possible but for their efforts. Similarly, John McMickle, a former staffer of Senator Grassley who worked on this bill while he was in the Senate, has taken an enormous amount of time away from his young children to help on this project. For staff who still work here, I think that Senator Grassley's chief counsel, Rita Lari-Jochum, should be singled out for her hard work and dedication to this bill. She has helped manage this process over the last several weeks, and she has done a fantastic job. Similarly, Mike O'Neill, Judiciary Committee Chief Counsel, and Harold Kim, Chief Civil Counsel, have done an outstanding job--as have the whole Judiciary team. There are several new counsels in that office that were thrown into the crucible in their starting weeks. First with class action, and now with bankruptcy. The record should reflect the professionalism and excellence with which Ivy Johnson, Tim Strachan, Ryan Triplette, Hannibal Kemmerer, and Nathan Morris have conducted themselves. They are a fantastic group. In Senator Sessions office, no one could overlook his chief counsel, William Smith, or his deputy chief counsel Cindy Hayden. Amy Blakenship and Wendy Fleming also with Senator Sessions, did a great job as well. They all did wonderful job. In the Majority Leader and Majority Whip's office, Eric Ueland, Sharon Soderstrom, and Allen Hicks led the team. John Abegg in Senator McConnell's office, proud father of a baby girl born on the day this bill hit the floor, nevertheless managed to get the job done. Kyle Simmons, Brian Lewis, and Malloy McDaniel all worked vigorously to plan and manage the strategy and votes on amendments. Stephen Duffield and his team at the R.P.C. has also provided timely and accurate information on the bill on a daily, and when needed, hourly, basis. As my colleagues all know, the Banking Committee played an important role in this process. Senator Shelby is fortunate to have people like Kathy Casey, Doug Nappi and Mark Oesterle working for him. I would also like to thank the House Judiciary Committee staff--they have been an invaluable resource and we would not have been able to get this done without them. As always, Phil Kiko provided a steady hand steering important legislation. Susan Jensen is a treasure trove of information and she has devoted herself to this endeavor. Stephanie Moore and Perry Applebaum of Representative Conyer's office, I am sure will help the legislation move through the House. The hardworking people in the legislative counsel's office have also undertaken a Herculean effort and flourished in the process. I believe that 125 amendments were filed on this bill, and that does not include the 50 or so that we had in Committee. That is a lot of drafting of complex legislation and we all owe Bill Jensen, Matt McGhie and Amy Gaynor our thanks for their contributions during this long trip. I would add Bob Schiff of Senator Feingold's staff, who worked to make this a better bill. It is a pleasure to work with him and he is someone we respect. I wish we could have done more for him and his great boss. We have done the best we can. Finally, on my own staff, Bruce Artim, Kevin O'Scannlain, Perry Barber and Brendan Dunn all worked very hard on this legislation. My personal executive assistant, Ruth Montoya, has put up with an awful lot over these last few weeks, and I appreciate her as well as my chief of staff Trish Knight, and Susan Cobb and the many others who literally have worked so hard to help me over these last several weeks--frankly, over the last many years. I know there are many others I have not been able to recognize, and they should all know what a wonderful job I believe they have done. I believe we have an important achievement with this bill, and I think it is only a matter of time until we get this bill passed on the floor, which will be a good end. Mr. President, the bankruptcy legislation cures some abuses in the Bankruptcy Code regarding executory contracts and unexpired leases. One provision, Section 404(a) of the bill, amends Section 365(d)(4) of the Bankruptcy Code. Presently, Section 365(d)(4) provides a retail debtor 60 days to decide whether to assume or reject its lease. A bankruptcy judge may extend this deadline for cause--and therein is the problem. Some experts believe that too many bankruptcy judges have allowed this exception essentially to eliminate any notion of a reasonable and firm deadline on a retail debtor's decision to assume or reject a lease. Some bankruptcy judges have been extending this deadline for months and years, often to the date of confirmation of a plan. This situation can be troublesome. For example, a shopping center operator is a compelled creditor. It has little if any choice but to continue to provide space and services to the debtor in bankruptcy. Yet, the current Code permits a retail debtor as long as years to decide what it will do with its leases. Coupled with the increased use of bankruptcy by retail chains, the Bankruptcy Code is seen by some to be tipped unfairly against the shopping center operator. Some stores curtail their operations or go dark, and still the lessor cannot regain control of its space. This legislation, like the conference report in the last two Congresses, acts to curb this abuse. It imposes a firm deadline on a retail debtor's decision to assume or reject a lease. It permits a bankruptcy trustee to assume or reject a lease on a date which is the earlier of the date of confirmation of a plan or the date which is 120 days after the date of the order for relief. A further extension of time may be granted, within the 120 day period, for an additional 90 days, for cause, upon motion of the trustee or lessor. Any subsequent extension can only be granted by the judge upon the prior written consent of the lessor: either by the lessor's motion for an extension, or by a motion of the trustee, provided that the trustee has the prior written approval of the lessor. This is important. We are limiting the bankruptcy judges' discretion to grant extensions of the time for the retail debtor to decide whether to assume or reject a lease after a maximum possible period of 210 days from the date of entry of the order of relief. Beyond that maximum period, there is no authority in the judge to grant further time unless the lessor has agreed in writing to the extension. Retail debtors filing for bankruptcy will undoubtedly factor into their plans this new deadline. Most retail chains undertake a careful review of their financial condition and business outlook before they file for bankruptcy. They will already have an understanding of which leases are ones they wish to assume and which ones they wish to dispose of. The legislation gives them an additional 120 days to decide on what to do with their leases, once they file for bankruptcy. Beyond that 120 day time period, an additional 90 days can be granted for cause. A further extension may be negotiated by the retail debtor and the lessor if circumstances warrant, and any such extension can be granted by a judge only with prior written consent of the lessor. Further, a lessor's prior written approval of one such extension does not constitute approval for any further extensions--each such extension beyond the 210-day period requires the lessor's prior written approval. The bill in Section 404(b) also amends Section 365(f)(1) of the Bankruptcy Code to make sure that all of the provisions of Section 365(b) of the code are adhered to and that 365(f) of the code does not override Section 365(b). This addresses another problem under the Bankruptcy Code. The bill helps clarify that an owner should be able to retain control over the mix of retail uses in a shopping center. When an owner enters into a use clause with a retail tenant forbidding assignments of the lease for a use different than that specified in the lease, that clause should be honored. Congress has so intended already, but bankruptcy judges have sometimes ignored the law. Congress made clear, in Section 365(b)(1) and 365(f)(2)(B), that the trustee may assume or assign an executory contract or unexpired lease of the debtor, only if the trustee gives adequate assurance of future performance under the contract or lease. In Section 365(b)(3), Congress provided that for purposes of the Bankruptcy Code: adequate assurance of future performance of a lease of real property in a shopping center includes adequate assurance-- (A) of the source of rent and other consideration due under such lease, and in the case of an assignment, that the financial condition and operating performance of the proposed assignee and its guarantors, if any, shall be similar to the financial condition and operating performance of the debtor and its guarantors, if any, as of the time the debtor became the lessee under the lease; (B) that any percentage rent due under such lease will not decline substantially; (C) that assumption or assignment of such lease is subject to all provisions thereof, including (but not limited to) provisions such as a radius, location, use, or exclusivity provision, and will not breach any such provision contained in any other lease, financing agreement, or master agreement relating to such shopping center; and (D) that assumption or assignment of such lease will not disrupt any tenant mix or balance in such shopping center. Congress added these provisions to the Code in recognition that a shopping center should be allowed to protect its own integrity as an ongoing business enterprise, notwithstanding the bankruptcy of some of its retail tenants. A shopping center operator, for example, must be given broad leeway to determine the mix of retail tenants it leases to. Congress decided that use or similar restrictions in a retail lease, which the retailer cannot evade under nonbankruptcy law, should not be evaded in bankruptcy. It is my understanding that some bankruptcy judges have not followed this Congressional mandate. Under another provision of the Code, Section 365(f), a number of bankruptcy judges have misconstrued the Code and allowed the assignment of a lease even though terms of the lease are not being followed. This appears to ignore Section 365(b)(3). For example, if a shopping center's lease with an educational retailer requires that the premises shall be used solely for the purpose of conducting the retail sale of educational items, as the lease in the In re Simon Property Group. LP v. Learningsmith, Inc. (D. Mass. 2000) case provided, then the lessor has a right to insist on adherence to this use clause, even if the retailer files for bankruptcy. The clause is fully enforceable if the retailer is not in a bankruptcy proceeding, and the retailer or the bankruptcy trustee or judge should not be able to evade it in bankruptcy. Otherwise, the shopping centers operator could lose control over the nature of its business. In the Learningsmith case, the judge allowed the assignment of the lease to a candle retailer because it offered more money than an educational store to buy the lease, in contravention of Section 365(b)(3) of the Code. As a result, the lessor lost control over the nature of its very business, operating a particular mix of retail stores. If other retailers file for bankruptcy in that shopping center, the same result can occur. In the past, courts have disagreed about whether Section 365(f) overrides the provisions of Section 365(b)(3). For example, in the case of In re Rickles Home Ctrs., Inc., 240 B.R. (D.Del. 1999), appeal dismissed, 209 F.3d 291 (3d Cir.), cert. denied, 531 U.S. 873 (2000), the judge disregarded the use clause and allowed a lease sale to go through to a non-conforming user. However, in In re Trak Auto Corp., 367 F.3d 237 (4th Cir. 2004), an appellate court held that a use clause must be strictly enforced under Section 365(b)(3) on sale of the lease, notwithstanding Section 365(f). This legislation provides the necessary clarity by amending Section 365(f)(1) to help make clear it operates subject to all provisions of Section 365(b). I note that Section 365(d)(4) of the Bankruptcy Code applies to cases under any chapter of Title 11. Language to that effect in the current Code's Section 365(d)(4) is deleted because it is repetitive of Sections 103(a) and 901 of the Code, which already make clear that provisions like Section 365(d)(4) apply to all cases under Title 11. This bill creates new legal protections for a large class of retirement savings in bankruptcy. This measure has widespread support from a long list of groups, ranging from the American Association of Retired Persons, to the Small Business Council of America and the National Council on Teacher Retirement. Let me take this opportunity to point out that the assets of some pension plans already are protected from bankruptcy proceedings. The United States Supreme Court has ruled in Patterson v. Shumate, reported at 504 U.S. 753 (1992), that assets of pension plans which have, and are required by law to have, anti-alienation provisions, are excluded from bankruptcy estates. Let me be absolutely clear that this provision is not intended in any way to diminish the protections offered under existing law and under the United States Supreme Court's decision in Patterson v. Shumate, but rather, is intended to provide protection to other retirement plans and accounts not currently protected. Mr. President, this has been a battle, there is no question about it, like all hotly contested issues are. But I think virtually everybody has contributed, and we have had some tough times on the floor. We have had even some bad feelings from time to time. But we have been at this for 8 solid, difficult years. It is unfortunate we could not work out more amendments, also, but we couldn't and still have this bill pass, hopefully for the last time. We worked in good faith to try to do that. For those who feel they have not been treated as fairly as I would certainly have wanted to treat them or I feel I have treated them and others as well have treated them, we feel bad about that and hope they will forgive us for not being able to make some of the changes that perhaps we would have made had this been the first year of this bill and we didn't have the difficulty of meeting the suggestions of our friends over in the other body. We think they have done a terrific job. The people in the House of Representatives are tremendous leaders, from Chairman Sensenbrenner right on through the whole Judiciary Committee and, of course, the leadership over in the House as well and others who are not on the Judiciary Committee but are concerned about this very important bill. They work closely with us. It is difficult for them and it is difficult for us, but that is the way these two bodies ought to work together, and this bill is a perfect illustration of what can happen if good people can get together, compromise on some of these issues that can be compromised, and yet stand firmly so we can pass legislation like this that will benefit the whole country. In my final remarks, let me recognize the efforts of Ed Pagano and Bruce Cohen of Senator Leahy's office and Jim Flug and Jeff Teitz of Senator Kennedy's office for all the hard work they have done over the years on this issue as well. It is a pleasure to work with staff on the Judiciary Committee. They are bright. They are articulate. They are brilliant, as a matter of fact. That is what you want in Judiciary Committee staffers. I wish those on the minority side would not be nearly as tough as they are, but I respect them for being that way. With that, I suggest the absence of a quorum.

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. HATCH

Mr. HATCH. I move to reconsider the vote, and I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. HATCH. I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, how much time remains?

Mr. HATCH. Mr. President, let me talk about the Boxer amendment for a minute or two. The purpose of this amendment is to restrict credit availability for young adults. Others believe that using credit cards to build a history is a laudable objective for young adults. This amendment does not distinguish between legitimate uses by young adults from other uses. It applies to any person under 21, regardless of his or her financial independence or employment situation. Also, note that 18-year-olds can serve in the military, get married, vote, and in most States serve on juries, all without a cosigner. This bill does address the issue of credit card debt and younger adults. Title XII of the bill provides for a study regarding the impact of the extension of credit to individuals who are claimed as dependents for Federal income tax purposes and are in college. The same section provides other relevant credit card-related reforms that are the result of careful negotiation. These include several amendments to the Truth in Lending Act which includes creating increased disclosure requirements for credit card statements and mandating the credit card companies assist borrowers in determining how long it will take to pay off their credit card balances; requiring certain additional disclosures to borrowers buying and refinancing their homes; require additional disclosures regarding credit card so-called introductory rates; extending Truth in Lending requirements to Internet-based credit card solicitations; adding new disclosures related to the credit card late fees; and prohibiting cancellation of credit cards solely due to borrowers' failure to incur finance charges. These are good changes, in my view, and the view of the majority of the Senate. They were all carefully negotiated over the last 8 years. We do not need to come in now and make further revision to delicate compromises such as this. I urge my colleagues to vote against the Boxer amendment. It would do more harm than any good. Amendment No. 67 I wish to speak against Senator Dodd's amendment 67. This is an omnibus amendment. There is nothing else to call it. This late in the game, a successful amendment usually targets specific provisions in the bill for improvement. And getting agreement on one of these rifleshot amendments can be like herding cats. Quite frankly, this is a message statement. It asks us to protect families. This is a noble goal, but it is not one served by this amendment. This amendment alters the carefully negotiated means test to permit nearly all filers to avoid a presumption of abuse. In some respects, it is redundant. For example, it lists as expenses many things that are already covered in the IRS standards used in the bill to determine appropriate expenses. In other areas, it is excessive. For example, it increases the allowable expenditures for private school education from $1,500 to $5,000. The worst part of this is it created a category of miscellaneous expenses. This is not just a loophole. My gosh, you could drive a truck through the opening for abuse this amendment puts through the middle of the means test, a test that has the purpose of a reduction in abusive bankruptcy filings. I said it once, and I say it again. This means test is the heart of this bill. The means test is fair. The means test has been carefully negotiated between Democrats and Republicans over 8 years of time. I have to oppose any effort to revise the means test at this late day. I urge my colleagues to vote against this amendment. Amendment No. 110 I rise in opposition also to the Durbin amendment. It takes a broad swipe at the means test again. First, the very purpose of the means test is to treat genuinely impoverished filers fairly. If you are below the State median income, you are not subject to the means test. It is as simple as that. This amendment undermines the ability of a court to verify a person's income when he or she is filing for bankruptcy. This amendment would remove the basic requirement that debtors fill out certain forms to verify their income. You have to fill out forms to get a driver's license, to get a job, to apply for a retirement plan. For example, when an individual applies for food stamps, there is a complete application process to verify income and assets before this benefit is approved. Is it too much to ask that if the Government is going to allow you to liquidate all of your debts, you at least show the court definitive proof of your income? Instead, this amendment allows a person simply to declare that his income is below the State median income. All he has to show are ``calculations or other information.'' In other words, take their word for it. That seems to open the door to the fraud this bill is designed to prevent. I believe most people are honest, but inevitably there are some applicants who will take advantage of the looser requirement. As Ronald Reagan said in a different context: Trust but verify. I urge my colleagues to vote against the Durbin amendment, as well. Amendment No. 66 I oppose the Harkin amendment. This was part of a problematic Rockefeller amendment we have already voted down. I respect my colleagues' dedication to the issue, but I must urge my colleagues to vote no. I am pleased we invoked cloture yesterday by a vote of 69-31. If that is not bipartisan, I do not know what is. This bill has been in the works for 8 years now, and I hope we can soon pass it for the fifth and final time. My colleague from Wisconsin has 14 amendments pending. I also understand there are roughly another six or so Kennedy amendments and two Durbin amendments. That is 22 amendments between these Senators. I wonder if my colleagues know how many other amendments are pending. The answer is three: one from the ranking member of the Judiciary Committee, one from Senator Akaka, and one from Senator Talent. What does this tell you? I respect my colleagues from Wisconsin, Massachusetts, and Illinois, but why are they dragging out this process? Their amendments constitute roughly 88 percent of the remaining omnibus bill. I suspect that even if we accepted every one of the amendments, all three would not vote for this legislation. So this is important. I respect the right of Senators to bring up their germane amendments in postcloture situations. If they want to do it that way, they certainly can. I oppose every one of those amendments. I think a majority of the Senators should oppose those, as well. We need to get this bill done. We know we have to keep it intact in order to get the House to take it and get it signed by the President. It is time to bring this to an end. We have been at it for 8 years and we have worked to accommodate everyone we possibly could. It has been a bipartisan vote every time, overwhelming bipartisan vote every time. By gosh, it is time to vote on this bill. How much time remains?

Mr. HATCH. Is that my time? I am prepared to yield back the remainder of my time and proceed to a vote. Do we have the yeas and nays on all four amendments?

Mr. HATCH. I ask for the yeas and nays on all four amendments.

Mr. HATCH. I ask unanimous consent that after the first 15-minute rollcall vote the remaining three votes be 10 minutes each.