Orrin Hatch

Mr. HATCH

Mr. HATCH. Absolutely. This a matter that is properly left up to the States, and we have so left it.

Mr. HATCH. That understanding is correct. As long as the person to whom authority is delegated would herself be eligible to serve on the entity, there is no reason to centralize all functions in one office. Nor is there any limit or requirement as to how many people can serve on the capital counsel entity. I know that in some of our discussions earlier this week, Senator Kyl posed the example of a State that creates a panel of three judges--trial judges, appellate judges, or some combination thereof--and has that panel carry out the functions of the entity. With the modification to the bill made today, this would be permissible. The State could use 5 judges, or 12, or even 1, though I can't imagine that the latter would be practical, except in the case where authority is delegated in local areas.

Mr. HATCH. Yes. There is no such restriction.

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. Amendment No. 4015

Mr. HATCH

Mr. HATCH. Mr. President, I will change places with you so you can make the unanimous consent request. As I understand it, Senator Stevens has asked for 5 minutes to make a speech before I make mine.

Mr. HATCH. Then, as I also understand it, the order should be Senator Warner to make his unanimous consent request, Senator Stevens for 5 minutes, then I for whatever time I need, and then Senator Landrieu for whatever time she wanted.

Mr. HATCH. If we can do it the way I suggested, it would be very acceptable. I ask unanimous consent that be the order.

Mr. HATCH

Mr. HATCH. Mr. President, I agree with the distinguished chairman of the Appropriations Committee. It is a catastrophic failure not to take care of these problems. I salute the chairman for making the statement he made and for the leadership he has provided in this Senate. We all know what a feisty, wonderful man he is. I hope we can get this resolved. I hope whoever has these objections will identify himself or herself and why they are making the objections. I listened to the statement of the Senator from Massachusetts this afternoon, and to hear him you would think we are living in the most calamitous times in the history of the world, that our country is falling apart, that we are not employing people, that people are getting poorer, and nobody has a chance in our society anymore, all because George W. Bush became President of the United States. It is amazing to me how many comments are made by people who are in the business of politicizing these matters rather than talking sensibly about them. Think about it, we lost over a million jobs shortly after September 11. Lost them. September 11 was the reason. That was no fault of President Bush. That was the fault of the people who attacked our country. Over 1.9 million jobs have been created since August of 2003. We now have the lowest unemployment rate in the last 4 or 5 years, 5.4 percent. When I was chairman of the Labor Committee, if you could get unemployment below 6 percent, if you got it to 5.6 percent, you had full employment. When you count those who cannot work, those who don't need to work, and those who won't work, you basically had full employment. 5.4 percent is incredibly low by historical standards. I might add that the Household Employment Survey shows 2.2 million jobs have been created, many more jobs than shown in the Payroll Survey. This is because the Household Survey counts the self-employed and the Payroll Survey does not. We have the highest rate of home ownership in history, which has been developed during this administration. I can go on and on. The fact of the matter is we can play politics with about everything in this overheated political campaign. Since September 11, the employment rate peaked at 6.3 percent last year and has come down to 5.4 percent. The current 5.4 percent rate is well below the average rates of the 1970s, the 1980s, and the 1990s. Some have said the job growth has failed to keep up with population growth. That is simply not true. Since last June, total employment has increased by 2.2 million. The labor force has increased by 949,000. Unemployment has fallen by 1.2 million people. In addition, we hear all the time how people are not making a good living. Let's be honest. In some respects we have priced ourselves out of the marketplace with some of the heavy-duty industries, and we know there are many reasons why that happens, and that goods and services are being produced elsewhere at a lower cost, and this benefits the consumers of America. The consumers of America then have more money and they will be spending more so we can create other businesses that will compete. The fact of the matter is, I have listened to these complaints about the labor overtime regulations that the Secretary of Labor worked on. I happened to have chatted with her during that process and she was doing an absolutely wonderful job of trying to make sure we got more people eligible to receive overtime pay than ever before. But to listen to some on the other side, you would think the whole world was coming to an end and the fact is she has come up with very good regulations. We could talk about these things all day, and I guess anyone can distort any statistical analysis. There is a lot of distortion that goes on in this Senate from time to time in these matters. Of course, we are in a heated Presidential election campaign and I have to say I make a certain allowance for that, but I hope the folks out there watching make an allowance for that as well, because we have a lot of heated rhetoric in the Senate that sometimes does not make sense. I intend to speak about three different things today and I ask unanimous consent my respective remarks be placed in the appropriate context.

Mr. HATCH. Mr. President, I come to the Senate to discuss H.R. 5107, the Justice For All Act that the Senate adopted this morning. After days, months, and now years of hard-fought negotiations, we finally reached an agreement on one of the most significant bills that has come out of the 108th Congress. Just days ago, the House passed H.R. 5107 by an overwhelming bipartisan vote of 393-14. I especially commend my friends and colleagues, chairman of the House Judiciary Committee Jim Sensenbrenner from Wisconsin and Congressman Bill Delahunt of Massachusetts, for their leadership on this important bill. Nor could we have accomplished this matter without the cooperation and leadership of my friend from Vermont, Senator Patrick Leahy. As we know, the Senate adopted this bill this morning and we are pleased to send it to the President for his signature. Our bill, the Justice for All Act, contains President Bush's DNA initiative. It also contains Senator Leahy's Innocence Protection Act which has been modified by almost everyone on the committee, and Senators Kyl and Feinstein's victims' rights legislation. This is a groundbreaking crime bill, one of the most important in history, that will allow us to unleash the power of evidentiary DNA and help provide law enforcement the ability to find and punish the guilty, yet give us the comfort of more certainty in criminal prosecution. Passage of the bill is extremely important to people such as Debbie Smith and Kirk Bloodsworth after whom individual parts of the bill are named. March 3, 1989, Debbie Smith--who I know very well--was the victim of a brutal rape in Williamsburg, Virginia. It took 6 long years to finally analyze Debbie Smith's rape kit. Debbie Smith's rapist was ultimately caught because of this, but it took far too long to catch him. According to the U.S. Department of Justice, a woman is raped every 6 minutes in this country and many rapists commit this crime 8 to 10 times before they are caught, which means that at any given moment there are literally millions of rape survivors waiting to hear that their attacker has been apprehended. Debbie Smith waited 6 agonizing years for justice to be served. It was not just waiting for justice to be served; it was agonizing because she was never sure when she walked out of her house or even within her house whether this brutal rapist would return. It was something that affected her all of those years. Thankfully, through the use of DNA evidence, this awful person was apprehended and slammed in jail, where he deserves to be. Some women are not that fortunate. The Justice Department reports there are approximately 150,000 to 500,000 rape kits nationwide that have yet to be analyzed because law enforcement officials are short on both the funds and the skilled personnel necessary to process these rape kits and match the evidence collected to existing DNA samples of known criminals. Imagine how many rapists we would have caught by now had those up to 500,000 rape kits been analyzed. By the way, some of those are 20 years old. I have been fighting for this bill for years. It is so difficult to get it through, but today is the day it has gone through the Senate and has passed the House. This bill makes a giant leap in the rape kit backlog and specifies when and how DNA tests should and should not be used. The President has often indicated his commitment to unlocking the power of DNA to solve these crimes. Today the Senate has joined the House in stepping up to follow through with the President's plan. It cannot be said any better than in Debbie Smith's own words: Each one of these stalled cases represents women's lives. Many women are paralyzed after an attack because their rapist is still out there, and you never know if he's going to come back. Now, this bill will not take away the pain and anguish these victims have endured. It can, however, allow for health care professionals, law enforcement, and other first responders to assist victims by using the evidentiary power of DNA to apprehend and prosecute those responsible for these horrible crimes. This bill was too important to be delayed any longer. As so many of my colleagues, I am well aware of the incomparable power of DNA testing to solve crimes, particularly sexual assault. This fact is reflected in newspaper headlines spread across the country each week. During the week of August 16 alone, the media reported that DNA evidence pinpointed a suspect in three rapes in Miami, FL, caused a man to be charged in a 20-year-old Missouri rape case, and proved critical in convicting a New York man accused of committing nine rapes over the course of a decade. That is what DNA can do. If we had all these rape cases analyzed, we would be catching these rapists right and left and we would be protecting women all over this country from this type of violent, criminal activity in many cases. So I want to stand here and thank Debbie Smith from the bottom of my heart for her constant efforts to help us pass this bill. I have known her for a long time. We have flown together. She has appeared at our hearings. She is leading the fight throughout America, along with a number of other very courageous women. This has to be a very important day for her. When this bill is finally signed into law by our President, who will sign it into law, it is going to be a big day for the Debbie Smiths of this world and, I might add, every woman in this world who is the potential target of these vicious rapists. Also contained in this bill are provisions that will give us assurance that those whom we arrest and convict are indeed those who have committed the crime. Kirk Bloodsworth, a former marine with no criminal background whatsoever, was arrested in 1984 for the brutal rape and murder of 9-year-old Dawn Hamilton on Maryland's Eastern Shore. Kirk Bloodsworth maintained his innocence but was convicted and sentenced to death. After 9 years in prison, two of them on death row, Kirk Bloodsworth, an innocent man, was exonerated by post-conviction DNA testing. Last year, prosecutors matched the DNA evidence in the case to another man, who subsequently pleaded guilty to the crime, for which he was sentenced to death. This is the power of DNA when it is used and analyzed properly. I want to stand here and thank Kirk Bloodsworth from the bottom of my heart for his efforts to improve and pass this bill. The bill will help to protect unintentional victims of the criminal justice system. I think we all owe a debt of gratitude to Kirk Bloodsworth. One reason I have stayed around here all day, although there are no more votes, is to be able to stand on this floor and personally pay tribute to Debbie Smith and Kirk Bloodsworth. They deserve it. They have been with us throughout this process, and I have nothing but respect for both of them. Moreover, this bill includes Senator Kyl's and Senator Feinstein's critical Crime Victims Act that ensures victims rights are protected in criminal prosecutions. This bill is truly justice for all. It is an important bill, and they fought for this for years and years, and we helped them to get it out of committee. I am so grateful it was matched with the DNA bill, and we now have these two bills brought together in one bill that will do a great deal of good for our society. Finally, let me say I am grateful for the hard work and determination of so many people to get such a vital bill passed. I thank my cosponsors of this bill. First, let me thank my good friend from Vermont, Senator Leahy, for his commitment and willingness to set aside politics in a very political year and work with me to get such a critical bill passed. I also want to recognize and specifically thank Senator Biden, Senator Specter, Senator Feinstein, and Senator DeWine for their calming voices of wisdom throughout the negotiations, our difficult committee markup, and in the final preparations to achieve a properly balanced bill. Without their unwavering support and counsel, this bill would not have occurred. I also thank the chairman of the House Judiciary Committee, Jim Sensenbrenner, and Representative Delahunt for their dogged determination on the House side in leading the House in passing this bill through the House on two occasions by overwhelming majorities. I have worked side by side with Chairman Sensenbrenner on many occasions. He is a true friend and he is a man of his word. I am pleased to have had the opportunity to work closely with Congressman Delahunt on this measure, and I can tell you, he is a man of honor and wisdom. I have enjoyed working with him. I will look forward to working with both of them again in the future. I also want to make special mention that without the thorough consideration of this bill by Senators Kyl, Sessions, and Cornyn, we would not be here today. Nearly two dozen changes were addressed and implemented at the insisting of these fine Senators, and this bill is a better bill because of it. And I have to admit, they have helped to improve the bill. At times the process through the committee was a bit tension filled, but I commend Senators Kyl, Sessions, and Cornyn for working to improve and refine this legislation. Some have unfairly criticized their efforts, but that is only because these critics apparently do not understand the committee process. I commend these colleagues and all of my colleagues for giving this bill the scrutiny it deserves. Now, let me say that many have worked to make this bill a successful effort. We could not get much done around here if we did not have such an intelligent and dedicated staff. I want to thank those on my staff, including Reed O'Conner and Ted Lehman, for their commitment and dedication in getting this bill done. I especially want to single out Brett Tolman, a bright, young assistant U.S. attorney from Salt Lake City who is on assignment to the Judiciary Committee. We are fortunate to have him, and he has made a tremendous difference on this bill. Brett took the initiative for undertaking a lot of the analysis and negotiations that led to the final compromise language. I am proud of him, and I think everybody else ought to be, too. I want to thank Senator Leahy's chief counsel Bruce Cohen and his lead counsel on this issue, Julie Katzman. Their efforts helped guide and drive this effort throughout and are greatly appreciated. We are also indebted to chief counsel Neil MacBride, Jon Meyer, and Louisa Terrell from Senator Biden's office. They continuously helped move the ball forward. I give special thanks to Rob Steinbuch, a senior counsel in Senator DeWine's Judiciary Committee office. Rob and Brett Tolman were key players on our side of the aisle in educating Members and staff about this bill and proposing creative solutions to problems that surfaced. I also thank Joe Matal, William Smith, and Chip Roy, who ably represented the views of, respectively, Senators Kyl, Sessions, and Cornyn. On the House side, Phil Kiko, chief counsel for Chairman Sensenbrenner, Jay Apperson, Katy Crooks, and Christine Leonard were instrumental in building the overwhelming support for this bill. As well, I give special thanks to Matt McGhie and Bill Jensen from legislative counsel. On this type of bill it is critical to get the language exactly right, and they did so time and time again. The list of contributors could go on and on because so many private and governmental organizations have also provided critical assistance. Let me also say, while I had to get a little rough with the Justice Department--and I am still not over it--I am, nonetheless, grateful for their help in coming to compromises and getting this bill in acceptable form. I call upon Attorney General Ashcroft to urge the President to sign this good bill, and to do it quickly. I thank the leadership, Majority Leader Frist and Senator McConnell, as well as Minority Leader Daschle and Senator Reid for giving us floor time to get this done today. Most of all, I am pleased to send to the President a bill that will make such a difference in the lives of victims of crime, including those wrongly accused or convicted of crimes across this country. This bill passed 393 to 14 over in the House. We amended it in many ways to make it a far better bill because of the work of all of these people I have been chatting about. I have to say that it passed unanimously by the Senate today. This body sent that version back over to the House, and I am pleased to report that they took it up and passed it so that it may be sent to the President for his signature.

Mr. HATCH

Mr. HATCH. Madam President, finally, I have to respond to the outrageous charges made by colleagues on the other side of the aisle regarding the Medicare statement I delivered on the Senate floor yesterday. I was disturbed by several remarks--especially that seniors have flatly rejected the Medicare prescription drug benefit. That may be the hope of some people on the other side, but that is not reality. How is that even possible when the drug benefit doesn't even go into effect until January 1, 2006? That is pure, unmitigated bunk. I am offended that this argument is even being made on the floor of the Senate by my colleagues because it is absolutely not true. It is being made to scare our seniors. And that is wrong. How is that possible when many Medicare beneficiaries are participating in the Medicare drug discount card and have seen savings in their drug costs up to 20 percent per drug? What is being said is just not true. I don't see that as an outright rejection. My colleagues need to be careful about their charges, especially when they don't have facts to back them up. I take issue with the assertion that our prescription drug law is only a drug law in name. What do they mean by that? Let me remind the Senator from Illinois that because of this new Medicare prescription drug law, 40 million Medicare beneficiaries will have drug coverage if they want it. They will have the choice. The bill provides generous subsidies to low-income Medicare beneficiaries, who today cannot afford to purchase drugs; today they don't have the help. They are talking like this bill does nothing--the bill which spends $400 billion-plus to improve Medicare for our seniors and the disabled. Prior to enactment of the Medicare Modernization Act, these beneficiaries had to make tough choices between buying prescription drugs and putting gas in their cars or buying prescription drugs and putting food on the table or buying prescription drugs and paying their rent. Once a Medicare drug plan goes into effect on January 1, 2006, those Medicare beneficiaries will no longer have to worry about this matter that they have to worry about now. To scare our seniors into thinking these benefits are not going to be great for them--it is incomprehensible to me that anybody has the gall to make those kinds of claims. Here is another point that needs to be raised regarding this matter: If there were any proposals that deserve to be recognized as offering a drug benefit in name only, it is the two Democratic plans of 2 years ago, which were supported by 50 and 45 Democrats respectively, including the Democrat leader and Senator Kerry, their candidate for President. My colleague, Senator Grassley, described these plans a few days ago. Let me take a few minutes to recap. The first Democratic plan had a drug benefit that lasted just 6 years; that was the end of it. Talk about offering a drug benefit in name only. The second plan didn't even offer a benefit to the vast majority of beneficiaries. Seventy percent of beneficiaries would not have received any basic coverage, and they are coming on the floor and saying this $400 billion-plus plan does nothing? Give me a break. A plan that shuts out the vast majority, 70 percent, of beneficiaries-- how can you call that a drug benefit? Those were their plans. Guess what those 70 percent got. You are not going to believe this. They got a 5-percent discount on their drugs in their plan. Once they spent $3,300 out of pocket, they could qualify for catastrophic coverage. That was their plan. And they are criticizing this plan, which was bipartisan, overwhelmingly passed? Some have taken issue with the Medicare reform bill, saying that the ``benefit'' stops after an initial coverage amount. I remind my colleagues on the other side of the aisle that their basic benefit would have never even started for 70 percent of beneficiaries--for 70 percent. They would have been left out by their plan, and they are criticizing this plan? Talk about a donut hole. These beneficiaries didn't even get a donut. The Congressional Budget Office estimated that 66 percent of beneficiaries would not even meet the $3,300 threshold. Again, for these folks, the only help they would get was a 5-percent discount. And they are criticizing our drug discount card where they are getting an average of 20 percent and in some cases even more? I was also extremely disappointed by the arguments by the Senator from Illinois and the Senator from California against what some have termed the ``non-interference'' provision. As I outlined, this provision has been included in the most prominent Democrat initiatives, starting with the Clinton Health Security Act a decade ago. Despite that fact--and it was in their bills--here we are listening to arguments against this bill. Apparently, what was good in a Democratic administration is very bad in a Republican one. They ought to be shouting for joy that we are putting some of their provisions into this bill. The problem is, these were not their provisions; they were all of our provisions, those of us who worked in a bipartisan way. What was good in a Democrat Senate is bad in a Republican Senate-- during an election year especially. It is almost as if my colleagues were not listening to what I said the other day. The argument that there is no authority for the Federal Government to bargain with pharmaceutical companies is getting to be a tired, wornout, old argument. Again, I will repeat myself from yesterday. First, the Democrat-sponsored bill from 2000, introduced by the Senator from South Dakota and cosponsored by 33 Democrats, had a specific provision which stated the following: In administering the prescription drug benefit program established under this part, the secretary may not [this is the Democrat language in their bill, which had almost every Democrat on it] (1) require a particular formulary or institute a price structure for benefits; (2) interfere in any way with negotiations between private entities and drug manufacturers or wholesalers; or (3) otherwise interfere with the competitive nature of providing a prescription drug benefit through private entities. Again, this provision is from the bill introduced by Senator Daschle, which was cosponsored by 33 Democrats, including not only Senator Kerry, their candidate for President, but also Senators Durbin and Boxer, who spoke against it on the floor yesterday. It takes time to do it correctly. CMS, the agency in charge of the Medicare program, needs time to implement the MMA regulations, accept bids from plans that wish to participate in the Medicare advantage programs, and, most important, it takes time to educate Medicare beneficiaries about the options that will be offered to them. Let me remind all of my colleagues that even the Democrat proposals that have been considered in the past did not have the Medicare prescription drug programs go into effect immediately. So that is just a ludicrous charge. In addition, I remind my colleagues that both the Democratic plans in consideration in December of 2002 didn't go into effect until 2005. I suspect that the authors of these plans recognized the same thing that we did, that it takes time to get a new, comprehensive drug program up and running. That is why the drug plan will not be available until January 1, 2006. So, there is no subterfuge behind the 2006 date in the MMA. Moreover, at least the MMA offers immediate assistance through the drug card program. Their plans offered nothing until 2005, and then very little after that. And cost us a bundle more. They were not even well thought out, in my opinion. I would also like to respond to the comments of my colleague from California comments about the Veterans Administration system and the deficiencies which I described yesterday morning. If my colleague from California is surprised at the Republicans not using the VA model then my only guess is she is even more surprised that her own party did not. No, they wanted to have private plans negotiate with drug companies, the same approach taken in the MMA, the Medicare reform bill. The VA system was not a model for any Medicare prescription drug plans considered on the Senate floor, advanced by either Democrats or Republicans. Finally, let me address the idea of importing cheap drugs from Canada. First, nobody has a greater desire than I do to make prescription drugs more affordable, particularly for our seniors and the disabled who depend so heavily upon pharmaceuticals for their quality of life. I co-authored the 1984 bill, the Hatch-Waxman Act, which in essence created the modern generic drug industry, brought generic drugs to the marketplace to become the force for competition and affordability that they are today. It has been called the most important consumer legislation in the last century by some. It has saved at least $10 billion every year since 1984. That law was written by a conservative Republican in the Senate, myself, and a liberal Democrat in the House, Congressman Henry Waxman, because we were willing to put differences aside, get together and do what was right. With regard to drug importation, my colleagues seem to forget that the MMA does include a provision to permit the importation of prescription drugs from Canada, once a program is in place that is approved and certified for, guess what, safety and cost by the Secretary of the Department of Health and Human Services. That sounds logical to me. We want those drugs to be safe and we want to know that we can afford to implement this program. The bill also calls for the Secretary to establish a 13-member task force that will study proposals to make reimportation safe and cost effective. HHS Secretary Tommy Thompson has indicated that the panel's recommendations will be completed by the end of this year. Up to 80 percent of imported drugs coming through our ports today, are knockoffs, out-of-date drugs or placebos. Can you imagine what could happened if drugs tainted by terrorists come into this country? Drugs filled with gradual poison, or even instant poison? Our nation must be concerned about these things because they impact the safety of our citizens. We should not overlook the fact that the FDA has documented many cases of what appeared to be FDA approved imported drugs that were in fact contaminated or counterfeit, contained the wrong product or incorrect dose, or were accompanied by incorrect directions or had outlived their expiration date. These drugs would be at minimum ineffective and could actually be harmful or even fatal. The FDA is also concerned with the safety of allowing companies which are not licensed by States to practice pharmacy to sell prescription drugs without any limitation on the amount or frequency of drug imports permitted for individuals. In addition, reimportation legislation as it is written would allow risky drugs that are currently available in the U.S. only under strict safety rules or controls, to be reimported in any amount or frequency to anyone, even those who are at high risk to be seriously injured by the medication. The FDA underscored these concerns in the Judiciary Committee's hearings on reimportation last July. The Agency stressed that opening our tightly regulated closed system of prescription drug distribution will open the door counterfeit and otherwise adulterated and misbranded drugs being widely distributed to unwitting American public. Mr. William K. Hubbard, Associate Commissioner for Policy and Planning for the FDA testified at this hearing and I would like to take this opportunity to read some of his testimony to my colleagues. FDA remains concerns about the public health implications of unapproved prescription drugs from entities seeking to profit by getting around U.S. legal standards for drug safety and effectiveness. Many drugs obtained from foreign sources that either purport to be or appear to be the same as U.S. approved prescription drugs are in fact of unknown quality. Consumers are exposed to a number of potential risks when they purchase drugs from foreign sources or from sources that are not operated by pharmacies properly licensed under State pharmacy laws. Patients are also at greater risk because there is no certainty what they are getting when they purchase some of these drugs. Although some purchasers of drugs from foreign sources may receive genuine product, others may unknowingly buy counterfeit copies that contain only inert ingredients, legitimate drugs that have been outdated and have been diverted to unscrupulous or dangerous sellers, subpotent or superpotent products that were improperly manufactured. Furthermore in the case of foreign based sources, if the consumer has an adverse drug reaction or any other problem, the consumer may have little or no recourse either because the operator of the pharmacy often is not known, or the physical location of the seller is unknown, or beyond the consumer's reach. FDA has only limited ability to take action against these foreign operators. These safety concerns are real. I strongly believe if we truly care about seniors and other patients who depend upon prescription drugs, we should not expose them to what currently amounts to pharmaceutical Russian roulette. The FDA is working with some of my colleague on legislation that would give the FDA greater resources, limit the scope of imports, and provide greater power to the FDA to police imports. In recent comments, former Commissioner Mark McClellan, now head of CMS, has said these measures would give the agency the ability to assure the safety of prescription drugs imported from Canada. In addition to these safety concerns, however, I am also concerned that reimported drugs pose a threat to the innovation that Americans and the rest of the world have come to expect from our pharmaceutical industry, the greatest industry in the world. Canada and other countries with lower drug prices generally import superior American products, but impose price controls to keep those costs down. It may cost as much as $1 billion to produce a new drug, test it, win FDA approval, educate doctors, and make the drug available to patients. No pharmaceutical company can or would go through this immensely expensive process without a chance to recover some of those costs, which will not be possible if we impose, in America, however incorrectly, Canada's style of price controls. But, wait, it not only costs $1 billion to create one of these drugs--6,000 experimentations that failed to finally arrive at a drug that is efficacious. And, in most cases, about three-quarters of the patent life is also consumed by that process. So the companies, to recoup that $1 billion and make a profit, they have maybe 5 years, in some cases, maybe less, to recoup their profits. That is the reason why drug prices are so high. These safety concerns are real and I strongly believe if we truly care about seniors and other patients who depend upon prescription drugs, we should not expose them to what currently amounts to pharmaceutical Russian roulette. I do not believe that sacrificing the safety and future supply of our drugs by reimportation is the right answer to the high cost of prescription drugs. I hope I have cleared up some of the misunderstandings that Medicare beneficiaries have about the MNA law. Again, we gain nothing by spreading untruths about the Medicare bill. I have been discouraged with some of the comments made by some of our colleagues who know better, or should know better. They need to review the bills that they cosponsored and wanted to pass on the Senate floor. In my opinion, those bills did not do nearly as much for seniors as the MMA. Frankly, those bills were more costly, and provided seniors with less benefits. The MMA law passed with bipartisan support in both Houses. The only thing that results from charges which have been made on this floor, is confusion of Medicare beneficiaries, the very people all of us are trying to help. I think that is regrettable. It is astounding to me that some of our colleagues are scaring our seniors to death when we are spending $400-plus billion to provide them with better Medicare coverage. The MMA helps the truly poor so they don't have to worry about donut holes. In my opinion, the MMA is something all of us should support. What gets me upset are some of the arguments being made on the floor that are not only erroneous but, I think, are misleading. I believe many are just being made for political purposes. I think one Senator called my argument flimflam--yesterday. I defy anybody to refute the principles I have discussed here today and the remarks I have made here today. You can differ with them, you can disagree with them, but I don't think you can disagree with the facts. It is time for all of us to start helping seniors by helping them to understand this bill so they can benefit from it. Deep down, I think one reason some oppose this bill so much is because it represents liberty and freedom in the case of the health savings accounts. HSAs was one of the most hard-fought provisions in the entire bill by the other side. I believe the opponents of the bill do not think the American people can save for their own health care. They don't trust the American people to save for their own health care. They believe the Government is the last answer to everything. They believe without the Federal Government telling them how to live, what to do, and what they can consume that they can't help themselves. Can you imagine a young person who took advantage of that health savings account? That young person would have to assume the burden of paying for all of these Federal programs in health care. If that young person saved $1,000 a year tax free for his or her entire working life up to 56 or perhaps 70, because we are all living longer these days, that young person would have hundreds of thousands of dollars, if not a million, to take care of his or her own health care. That is the way it ought to be. Isn't that the American way? Shouldn't we try to take care of ourselves first and then help others? I believe the Federal Government should help those who cannot help themselves. Where I draw the line is I don't believe that the Federal Government should help those who could help themselves but won't. I think there is a difference between the two. But there is nobody more compassionate than I in helping those who truly need the help. I wanted to set the record straight. I am disappointed in some of the remarks which have been made on the floor against the MMA. Some of those remarks have been overly excessive and I hope that type of rhetoric will be discontinued. I yield the floor.

Mr. HATCH. Madam President, if the Senator will yield, I thank the Senator for his comments. I thank him for his energetic good work on this bill. He and Senator Cornyn in particular helped to improve this bill, and we should all be proud of it. I thank the Senator.

Mr. HATCH

Mr. HATCH. Mr. President, I express my strong support for the conference report to accompany the American Jobs Creation Act. In order to protect our domestic manufacturers, strengthen our economy, better help U.S.-based multinational firms compete globally, and honor our trade obligations, the Senate must pass this critically important and overdue legislation before recessing for the elections. I wish to start by congratulating the chairman of the conference committee on this bill, Congressman Bill Thomas, and the cochairman, Senator Chuck Grassley, for their leadership and exceptional cooperation in finishing the conference on this bill in time to bring it to the House and Senate floor this week. Many thought completion of this task would be difficult or impossible, given the large differences in the Senate and House versions and the time constraints the conference committee faced. The innovative conference process developed by the chairman and cochairman made success possible. Conferencing a large and diverse pair of tax bills in the usual fashion could have taken many weeks and led to a likely failure to finish this bill before sine die adjournment of the 108th Congress. Again, I recognize the extraordinary achievement of this conference committee and thank its leaders and my fellow conferees for their hard and dedicated work. This conference report represents what we hope will be the culmination of a very lengthy and fascinating issue that had its genesis decades ago but has festered into a growing problem over the past several years. I will leave to others to go into detail about the long history of the export subsidies in our tax law that gave rise to this conference report, but the unusual nature of this bill and its difficulty in passing the Congress are reflections of the complexity of this issue. The crux of the difficulty of the bill is that the rulings of the World Trade Organization on the trade-legality of our export tax subsidies put the Congress in a very tough position. In essence, we found ourselves needing to repeal these export subsidies, known as the Foreign Sales Corporation, FSC, provision and its replacement regime known as the Extraterritorial Income, ET, exclusion. By repealing these provisions, which we must do in order to honor our trade obligations, we effectively raise taxes by almost $6 billion per year on thousands of U.S. businesses that manufacture goods for export. Leaving it at this is simply unacceptable. Why should we have to convert a provision designed to help U.S. manufacturers compete in an ever-increasingly difficult global marketplace to a situation where they suffer a competitive disadvantage? Yet, this is exactly the problem the Congress faces now that it is forced to repeal the export tax benefits. When confronted with a similar problem in 2000 after the WTO ruled the FSC provision to be in violation of international trade rules, Congress passed the ETI in its place. With the ETI, we were able largely to replicate the benefits of the FSC regime, so that exporting taxpayers paid few if any extra taxes with the repeal of FSC. Unfortunately, the WTO subsequently ruled that the ETI provision also was an illegal trade subsidy that also must be repealed. So, the conundrum facing the Congress with this situation was to find a way to enact other tax cut benefits for exporting manufacturers, to offset the increase from repealing ETI, without violating the WTO rules. Unfortunately, this has proven impossible, so both the Senate and House bills attempted to find rough justice for business taxpayers by finding other ways to deliver tax benefits besides basing them on exports. Such attempts gave rise to the political and practical difficulties of this bill, including the fact that it took many months of hard effort to reach the point we are today. For example, my own bill to address the FSC/ETI problem was S. 1475, the Promote Growth and Jobs in the USA Act, which I introduced in July 2003. This bill would have delivered rough justice tax relief in two ways. First, it would simplify and rationalize the international tax rules that currently harm the ability of U.S. firms to compete globally, and second, it would provide incentives for companies to increase their ability to produce goods by acquiring new equipment and engaging in more research and development. Other FSC/ETI solution bills were also introduced. On the same day I introduced S. 1475, Chairman Thomas introduced H.R. 2896, the American Jobs Creation Act. The two bills were similar in many ways, and both included international tax reforms. The Thomas bill, however, included a number of other provisions designed to help U.S. businesses create jobs and better compete. Another bill, introduced last year by Congressmen Crane, Rangel, and Manzullo, offered a different direction still. This bill provided a deduction equal to 10 percent of a company's production activities. In the Senate, Senators Grassley and Baucus introduced a bill that included some of the best elements of all the other bills. Even though I preferred the solution set forth in my bill, I cosponsored the Grassley-Baucus bill because it represents a solid and reasonable solution to the problem. This bill, as modified, became the legislation reported by the Finance Committee and passed by the Senate. After a great deal of travail and adjustments, the House also passed a FSC/ETI bill, and it was quite similar in many respects to the first Thomas American Jobs Creation Act. These are the bills the conference committee had to combine into one. The result, as we all know, is a bill that is far from perfect. Its enactment will result in a net tax increase for some exporting companies that now use the ETI provision, and in a net tax cut for many other U.S. manufacturing firms that may have not taken advantage of the ETI exclusion. And while the bill includes many important other provisions, it leaves out some very important provisions that the Senate conferees agreed with me should be in there. Unfortunately, the House conferees disagreed and they were omitted from the final product. For example, I am personally very disappointed that the House conferees voted against including the CLEAR ACT in this conference report. This bill, which has passed the Senate at least three times and also has passed the House, would transform our auto industry by granting strong tax incentives for consumers who buy alternative fueled and advance technology vehicles, such as hybrid electric cars. Moreover, it would move us to a more responsible age of cleaner air and less fuel dependency on the Middle East by simultaneously breaking down the three barriers that keep our nation from adopting the already- existing technology to help us meet these goals--the higher cost of such vehicles, the higher cost of alternative fuel, and the lack of a refueling infrastructure. From a broader point of view, most of my fellow Senate conferees and I would have liked to see the entire set of energy tax provisions from the Senate-passed bill included in the conference report. It was a mistake to omit these important provisions. I also very much regret that the House conferees refused to adopt the amendment I offered, accepted by the Senate conferees, which would have bolstered our research tax credit. While it is true that the research credit was extended for a short time in the most recently passed tax bill dealing with individual tax cuts, that legislation left out an important element that was contained in the Senate FSC/ETI bill designed to improve the incentives this provision gives for companies to engage in R&D activities. Nevertheless, the conference report is worthy of our support. As I mentioned, as a nation we must honor the obligations under the World Trade Organization. Of more immediate importance is the fact that the Europeans are levying an increasing level of trade sanctions against certain of our products exported to the E. U. This level is currently at 12 percent and is growing by one percentage point per month and is definitely having a very serious negative effect on certain U.S. industries. Moreover, the trade sanctions are authorized to continue to increase until next March, when they will have reached 17 percent. After this, the E. U. may authorize even more serious sanctions against us that would surely harm our economic growth. As all of my colleagues well know, if we do not succeed in passing this conference report before sine die adjournment of the 108th Congress, we must start the process all over again next year. Will this result in a better bill? Perhaps, but such an outcome is far from certain. What is more likely is that the resolution to this issue would be delayed for many more months, giving the trade sanctions more time to damage our economy and harm U.S. businesses. Now, I take a few minutes to discuss some of the specific provisions that did make it into the conference report and why I believe my colleagues should enthusiastically support them. First, let me express my satisfaction that this conference report has a good balance to it. In addition to the vital repeal of the ETI provision and the quite reasonable transition relief it provides for current ETI users, the bill offers significant provisions for both small businesses and large multinational firms. Mixed in is a generous portion of important tax relief for business interests of all kinds. Central among these relief provisions is the manufacturing deduction. This provision is designed to lower the tax burden of any business entity that engages in production activities in the United States. I am happy to see that the Senate provision allowing this deduction to be taken by unincorporated businesses was retained in conference. Also included in the conference report is a significant section of relief designed specifically for small businesses. Foremost in this category are the five sections that would simplify and reform the taxation of S corporations. These are changes I have long sought. Along with my colleagues, Senators Breaux, Smith, and Lincoln, we have attempted to get these and other S corporation improvements passed for several years now. I am gratified to see them included in the conference report. Other provisions that are very important to the balance of this bill are those designed to simplify and improve the rules by which this Nation taxes international business transactions. Quite simply, the current state of our international tax rules is appalling. This part of our Tax Code generally dates back to the early 1960s, and was designed for a different world from the one in which we live now. U.S. businesses, whether large, medium, or smaller, that decide to expand their markets beyond the borders of the United States confront a set of tax rules that are not only mind-numbingly complex, but far worse result in double taxation and often leave them on the down side of a tilted playing board when compared with competitors based in most other industrialized nations. Our rules governing the foreign tax credit, for example, which are designed to eliminate the double taxation of income, often are ineffective, some blatantly so. A provision added to the Internal Revenue Code in 1986 reduces the foreign tax credit by 10 percent to the extent it reduces the alternative minimum tax. There is little or no justification for this double taxation that I can see, and this conference report repeals this unfair provision. The bill includes about two dozen provisions that will help improve the tax law for our companies that have expanded their markets overseas. I have long been interested in getting this type of reform passed by the Congress, having introduced bills to do this since the mid-1990s. It is gratifying to finally see this long overdue relief come to pass. Some of my colleagues have incorrectly concluded that improving our rules on international taxation will give an incentive to U.S. companies to move their jobs overseas. This is unfortunate. Cross- border investing is not only a necessity of our modern world, it is usually beneficial to both nations. Most U.S. companies that invest in expansion into markets in other nations do so to compete effectively with other suppliers in those markets and here at home. A fact of life of our modern economy is that our U.S.-based business enterprises face competition from all parts of the globe. It is unrealistic to think that an American business can simply focus on markets here at home and thrive. Instead, most of today's businesses must be mindful of both markets and material and labor supplies around the world if they are to stay in business very long. While no one likes to see U.S. jobs move overseas, we should be more concerned about creating and maintaining in the United States the kind of environment that attracts businesses. Part of that environment is ensuring that our tax system does not drive businesses offshore to other nations that tax them in a more favorable fashion. This bill moves our tax system a big step in that direction, and I am pleased to see these changes finally reach the point where they are about to become law. I now say a few words about the issues regarding tobacco associated with this conference report. I have not forgotten that at the center of the tobacco buyout is the tobacco farmer. I understand that the tobacco price support and tobacco quota programs have helped to secure a reasonable living for many family farmers. I have also come to the understanding that breaking the dependency of U.S. citizens and especially children on nicotine requires us to address the dependency of tobacco growers on the tobacco industry and on the government programs. It will not be an easy transition for many tobacco growers, and we need to help these families to survive it. Contrary to the belief of some, the United States Department of Agriculture, USDA, does not provide a direct subsidy to tobacco growers. However, the USDA does maintain artificially high prices for tobacco leaf by managing the loan, or-price support, program for tobacco growers which serves to maintain artificially high prices for tobacco and cigarettes in this country. The USDA also manages the tobacco quota system to keep down the amount of tobacco grown each year. This, again, keeps the price of tobacco and cigarettes high. All direct and administrative costs for these two programs are reimbursed to the USDA by tobacco farmers and their trade association. There is no net cost to the government as a result of the tobacco program. In fact, smokers carry most of the burden of the tobacco program through higher costs for the tobacco products they purchase. Shifting tobacco farming away from tight government management toward the free market has risks for our farmers. This proposal does a good job of getting the government out the farming business while making temporary assistance available to farmers as they adjust to the free market. And, it is at no cost to our government. As far as the provision requiring the Food and Drug Administration to regulate tobacco, let me say that I fully support measures to end tobacco use in the United States. I can think of few public health dangers worse than tobacco, and this is especially true for young people. I have heard from many concerned parents and health advocates in Utah who point out the need to stop the devastating health consequences of tobacco use. In many aspects, the DeWine/Kennedy language was written to achieve that goal, and in that spirit I supported it in conference. In fact, much of the bill is taken from a measure that I authored several years ago with Senator Dianne Feinstein. That being said, I am concerned about some aspects of the way the bill was written, and especially the impact of this language on the resources of the Food and Drug Administration. First, the Committee of jurisdiction, the HELP Committee, should have the opportunity to consider this legislation before it is brought to the full Senate for a vote the next time. Having been the chairman of that committee for several years, I know full well the complexities of the Federal Food, Drug and Cosmetic Act. Three hours of debate on the Senate floor was not enough time to consider legislation that made such dramatic changes to current law. I also want to make sure that we in the Congress are clear about the impact that such legislation would have on the Food and Drug Administration and whether or not the FDA has adequate resources to regulate tobacco, and, in addition, keep up with its other, extremely important responsibilities, such as the approval of drugs, medical devices, and protecting our food supply. While I understand that user fees were included in the legislation, I am not convinced that those user fees would have provided the FDA with sufficient resources to regulate tobacco. I am someone who has fought to provide FDA with adequate resources and have led the fight on unifying the FDA campus. I do not want anything to jeopardize the progress we have made in those areas so before we consider similar legislation again. I believe it is imperative to work closely with the FDA to find out exactly how much money is necessary for the agency to regulate tobacco, and whether or not the agency is capable of overseeing the regulation of tobacco. Again, let me make one thing perfectly clear--I believe that tobacco should be regulated, however, it needs to be a well-thought-out process. Therefore, allowing the proper committees of jurisdiction to review and consider the legislation and consultation with the FDA must take place before similar legislation is voted upon by the full Senate and House of Representatives before we consider another measure. Finally, I want to touch on some of the revenue offsets included in the conference report. I want to make it clear that I support the principle of keeping this bill revenue neutral, and I congratulate the conferees for doing so. This was a particularly sticky problem with the House Members, so I especially recognize their hard work in bowing to the Senate's demands that this bill be fully offset. I am very pleased to see that several revenue offset provisions that were in the Senate bill are not part of the conference report. One of these is the codification of the economic substance doctrine. I believe enactment of this provision would have led to a great deal of unnecessary conflicts between taxpayers and the Internal Revenue Service, and would have unfairly penalized companies for engaging in legitimate tax planning techniques. One provision that did make it into the conference report raises revenue in connection with the donation of used vehicles. In essence, the provision requires that taxpayers wait to take a deduction for the donation of a used vehicle until the donee charity has sold the item in an auction. Then, the deduction is limited to the actual purchase price. While this may appear to be a reasonable requirement, particularly in light of some of the alleged abuse surrounding the charitable donation of used vehicles, I am concerned that these changes will result in far fewer used vehicles being donated to charities. Some charities, such as the National Kidney Foundation of Utah, rely heavily on such donation programs for a great deal of their funding. A chilling effect on the donation of these used cars could leave many worthy charities short of vital funds needed to perform their invaluable services to needy citizens in Utah and elsewhere. I will keep a watchful eye over the implementation of this change in the law, to make certain it does not harm the charities that have relied on donated vehicles for funding. While I agree that we should preclude any real abuse of the law, I do not think we should create a burdensome new requirement that would discourage charitable giving. It may well be that we need to revisit this area of the law in the future. In conclusion, the conference report before us represents a good bill that deserves our support. As I have tried to indicate in these remarks, the bill is far from perfect. But given the very difficult political and other circumstances surrounding the issues this bill addresses, it is remarkable we were able to bring to the Senate floor a product that is as good as it is. I urge my colleagues to support the conference agreement. section 422

Mr. HATCH

Mr. HATCH. Mr. President, I have to respond to the outrageous charges made by my colleagues on the other side of the aisle regarding the Medicare statement I delivered yesterday. I was disturbed by several remarks, especially that seniors have flatly rejected the Medicare prescription drug benefit. How is that even possible when the drug benefit doesn't even go into effect until January 1, 2006? How is that possible when many Medicare beneficiaries are participating in the Medicare Drug Discount Card and have seen savings in their drug costs up to 20 percent per drug? I do not see that as an outright rejection at all. My colleagues need to be careful about their charges, especially when they do not have the facts to back them up. I also take issue with my colleague's assertion that our prescription drug law is only a drug law in name. What does he mean by that? Let me remind the Senator from Illinois that because of this new Medicare prescription drug law, 40 million Medicare beneficiaries will have drug coverage if they want it. The bill provides generous subsidies to low-income Medicare beneficiaries who, today, cannot afford to purchase drugs. Prior to enactment of the Medicare Modernization Act, these beneficiaries had to make tough choices between buying their prescription drugs and putting gas in their cars. Or buying prescription drugs or putting food on the table. Or buying prescription drugs or paying their rent. Once the Medicare prescription drug plan goes into effect on January 1, 2006, those Medicare beneficiaries will no longer have to worry. And another point that needs to be raised regarding this matter--if there were any proposals that deserve to be recognized as offering a drug benefit in name only, it's the two Democratic plans of two years ago--plans supported by 50 and 45 Democrats respectively, including the Democratic Leader and Senator Kerry. My colleague, Senator Grassley, described those plans a few days ago, but let me take a few minutes to recap. The first Democratic plan had a drug benefit that lasted just six years. Talk about offering a drug benefit in name only. The second plan didn't even offer a benefit to the vast majority of beneficiaries. Seventy percent of beneficiaries would not have received any basic coverage. A plan that shuts out the vast majority of beneficiaries--how can you call that a drug benefit? Guess what those 70 percent got. You are not going to believe this--a five percent discount on their drugs. Once they spent $3,300 out of pocket, they could qualify for catastrophic coverage. Some have taken issue with the MMA, saying that the ``benefit'' stops after an initial coverage amount. I would like to remind my colleagues on the other side of the aisle that their basic benefit would have never even started for 70 percent of beneficiaries! Talk about a doughnut hole; these beneficiaries didn't even get a doughnut! The Congressional Budget Office estimated that 66 percent of beneficiaries wouldn't meet the $3,330 threshold--again, for these folks, the only help they would get was a five percent discount! A five percent discount! I was also extremely disappointed by the arguments made by the Senator from Illinois and the Senator from California against what some have termed the ``non-interference'' provision. As I outlined, this provision has been included in the most prominent Democrat initiatives, starting with the Clintons' Health Security Act over a decade ago. Despite that fact, here we are again listening to arguments against it. Apparently, what was good in a Democratic administration is bad in a Republican one. And what was good in a Democratic Senate is bad in a Republican Senate during an election year. It is almost as if my colleagues were not listening to what I said. The argument that there is no authority for the federal government to bargain with the pharmaceutical companies is getting to be a tired argument. Again, let me repeat myself from yesterday. First, the Democrat-sponsored bill from 2000, introduced by Senator Tom Daschle and supported and cosponsored by 33 Senate Democrats, had a specific provision which stated the following: In administering the prescription drug benefit program established under this part, the Secretary may not (1) require a particular formulary or institute a price structure for benefits; (2) interfere in any way with negotiations between private entities and drug manufacturers, or wholesalers; or (3) otherwise interfere with the competitive nature of providing a prescription drug benefit through private entities. Again, this provision is from S. 2541, the Medicare Expansion for Needed Drugs, a bill that was introduced by Senator Daschle and cosponsored by 33 Democrats, including not only Senator Kerry but also Senator Durbin and Senator Boxer who spoke against it on the floor yesterday. Now, it is every Senator's right to change his or her mind, but you would think we would hear some discussion about the basis for this flip-flop. Instead, there is much dialogue about the so-called ``evil'' pharmaceutical companies, and virtually no admission that many Democrats, many prominent Democrats, have been on record in favor of the provision they now castigate. And what is even more outrageous is the fact that they are the ones who first came up with the concept. When I hear my colleague from California talk about how the Medicare drug law does not do much for seniors, let me just remind my colleagues on both sides of the aisle that she is sadly mistaken. On the contrary, the Medicare prescription law improves health care coverage for Medicare beneficiaries by first, giving them the option to have prescription drug coverage, something that they do not have today and something Medicare beneficiaries have wanted for close to 40 years! In addition, the MMA provides beneficiaries new preventive health benefits including a first-time, Welcome to Medicare Physical Examination, cardiovascular and diabetes screening and improved payments for mammography. It also provided rural health care providers with increased reimbursement so they may continue to provide Medicare beneficiaries living in rural areas with quality health care. I don't know about California or Illinois, but that is most welcome in Utah! It also provides beneficiaries with a choice in coverage. Seniors will be able to choose the drug benefit that best suits their needs, rather than be forced in a one-size fits all government plan which is what many of my colleagues on the other side of the aisle support. Another important provision in the bill helps all Americans by offering them Heath Savings Accounts, HSAs. HSAs are tax-advantaged savings accounts which may be used to pay for medical benefits. The inclusion of these new accounts is a significant part of the Medicare law. Allowing individuals to take charge of their own savings for future health care expenses is an important and necessary change in the direction of our health care policy, and is one that I support strongly. Another point raised by my colleague from California is the doughnut hole. I think she called the doughnut hole a ``benefit shutdown.'' I agree that the MMA law is not perfect and, yes, this is an area I wish we could have improved upon. But calling it a ``benefit shutdown'' is not only wrong, it is deceptive. The reason it is wrong to call the doughnut hole a ``benefit shutdown'' is that it would not affect the majority of seniors, and since our first responsibility is to take care of the very poor beneficiaries, that is entirely fitting. In fact, the Congressional Budget Office told us that only one-quarter of Medicare beneficiaries will have spending that actually reaches the non-coverage window of the doughnut hole. Finally, let me remind my colleague from California that the Medicare prescription drug amendment the Democrats brought to the floor in 2002 sunsetted the Medicare prescription drug program. My good friend from Iowa, Senator Grassley, the Chairman of the Senate Finance Committee was talking about this irony the other day on the floor. Let me recap what Senator Grassley said. When we were considering the Medicare Tripartisan bill on the Senate floor on 2002, the first Graham-Kennedy Medicare proposal was not permanent. Let me read the language from their proposal: ``No obligations shall be incurred, no amounts shall be appropriated and no amounts expended, for the expenses incurred for providing coverage of outpatient drugs after December 31, 2010.'' Isn't that just remarkable? And they are calling the MMA a drug plan in name only? Who are they trying to kid? The fact that the Graham-Kennedy proposal offered a drug benefit that ended 6 years after it started is unbelievable. But they sunsetted the benefit to hide the true cost of their proposal. At the time, the Congressional Budget Office said it would cost over $100 billion each year to extend the Graham-Kennedy drug benefit past the sunset--$100 billion a year without a plan to pay for this enormous cost! And the argument made about the MMA not going into effect until after the election is just more election year political jabber. That is a ridiculous charge, one that does not even warrant a response. But I will respond to it by saying that it takes time to put together a benefit that will cover over 40 million Americans. It takes time to do it correctly. The agency in charge of the Medicare program needs time to implement the MMA regulations, accept bids from plans that wish to participate in the Medicare Advantage programs and, most important, it takes time to educate Medicare beneficiaries about the options that will be offered to them. And let me remind all of you that even the Democrat proposals that have been considered in the past did not have the Medicare prescription drug programs go into effect immediately, so that is just a ludicrous charge. In addition, I will remind my colleagues that both the Democratic plans under consideration in the summer of 2002 didn't go into effect until 2005 because they recognized the same thing we did--that it will take some time to get a new program like this up and running. And so, there's no subterfuge behind the 2006 date in the MMA. Moreover, at least the MMA offers immediate assistance through the drug card program. Their plans offered nothing until 2005 and then very little after that! I would also like to respond to my colleague from California's comments about the Veterans Administration system and the deficiencies of which I described this yesterday morning. If she's surprised at the Republicans for not using the VA model, then my only guess is that she's even more surprised that her own party didn't. No--they wanted to have private plans negotiate with drug companies-- the same approach taken in the MMA. The VA system was not a model for any Medicare prescription drug plans considered on the Senate floor. Finally, let me address the idea of importing cheap drugs from Canada. First, nobody has a greater desire than I to make prescription drugs more affordable, particularly for our seniors and the disabled, who depend so heavily upon pharmaceuticals for their quality of life. I co- authored the 1984 bill which, in essence, brought generic drugs to the marketplace to become the force for competition and affordability that they are today. My colleagues seem to forget that the MMA does include a provision to permit the importation of prescription drugs from Canada once a program is in place that is approved and certified for safety and cost by the Secretary of the Department of Health and Human Services (HHS). The law also calls for the Secretary to establish a 13-member task force that will study proposals to make re-importation safe and cost effective. HHS Secretary Tommy Thompson has stated he is hopeful the panel's study will be completed by the end of this year. We shouldn't overlook the fact that the FDA has documented many cases of what appeared to be FDA-approved imported drugs that in fact were contaminated or counterfeit, contained the wrong product or incorrect dose, were accompanied by inadequate directions, or had outlived their expiration date. These drugs would be at a minimum ineffective, and could actually be harmful or fatal. The FDA is also concerned with the safety of allowing companies which are not licensed by states to practice pharmacy to sell prescription drugs without any limitation on the amount or frequency of drug imports permitted for individuals. In addition, reimportation legislation as it is written would allow risky drugs that are currently available in the U.S. only under strict safety controls to reimported at any amount or frequency to anyone-- even those who are at high risk to be seriously injured by the medication. The FDA underscored these concerns in the Judiciary Committee's hearing on drug importation last July. The agency stressed that opening our tightly regulated, closed system of prescription drug distribution will open the door to counterfeit and otherwise adulterated or misbranded drugs being widely distributed to an unwitting American public. Mr. William K. Hubbard, the Associate Commissioner for Policy and Planning for the FDA testified before the Senate Judiciary Committee on this important matter. I would like to take this opportunity to read some of his testimony to my colleagues: FDA remains concerned about the public health implications of unapproved prescription drugs from entities seeking to profit by getting around U.S. legal standards for drug safety and effectiveness. Many drugs obtained from foreign sources that either purport to be or appear to be the same as U.S. approved prescription drugs are, in fact, of unknown quality. Consumers are exposed to a number of potential risks when they purchase drugs from foreign sources or from sources that are not operated by pharmacies properly licensed under state pharmacy laws. Patients also are at greater risk because there is no certainty about what they are getting when they purchase some of these drugs. Although some purchasers of drugs from foreign sources may receive genuine product, others may unknowingly buy counterfeit copies that contain only inert ingredients, legitimate drugs that are outdated and have been diverted to unscrupulous resellers, or dangerous sub-potent or super-potent products that were improperly manufactured. Furthermore, in the case of foreign-based sources, if a consumer has an adverse drug reaction or any other problem, the consumer may have little or no recourse either because the operator of the pharmacy often is not known, or the physical location of the seller is unknown or beyond the consumer's reach. FDA has only limited ability to take action against these foreign operators. These safety concerns are real, and I strongly believe that if we truly care about seniors and other patients who depend upon prescription drugs, we should not expose them to what currently amounts to pharmaceutical Russian roulette. Now the FDA is working with some of my colleagues on legislation that would give the FDA greater resources, limit the scope of imports, and provide greater power to the FDA to police imports. In recent public comments, former Commissioner Mark McClellan has said these measures would give the agency the ability to assure the safety of prescription drugs imported by Canada. In addition to these safety concerns, however, I am also concerned that reimported drugs pose a threat to the innovation Americans--and the rest of the world--have come to expect from our pharmaceutical industry. Canada and other countries with lower drug prices generally import superior American products, but impose price controls to keep costs down. However, it can cost as much as $1 billion to produce a new drug, test it, win FDA approval, educate doctors, and make the drug available to patients. No pharmaceutical company could go through this immensely expensive process without a chance to recover some of its costs, which will not be possible if we impose in America--however indirectly-- Canadian-style price controls. I do not believe that sacrificing the safety and future supply of our drugs by reimportation is the right answer to the high cost of prescription drugs. I hope that I have cleared up any misunderstandings that Medicare beneficiaries have about the MMA law. Again, we gain nothing by spreading mistruths about the Medicare bill. The only thing that results from those types of charges is confusion of Medicare beneficiaries--the very people who all of us are trying to help. And that is regrettable.

Mr. HATCH

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

Mr. HATCH. I cannot make a unanimous consent request.

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

Mr. HATCH. Mr. President, I ask unanimous consent that I be permitted to speak for up to 1 hour and after that the quorum be reinstituted.

Mr. HATCH. No, because I am not speaking on the bill.

Mr. HATCH. That is fine.

Mr. HATCH. Fine. Your request is fine.

Mr. HATCH. Fine.

Mr. HATCH. I thank the distinguished minority whip and, of course, my friend from Iowa for their courtesy. I have been wanting to give these Senate remarks as in morning business ever since yesterday. Medicare Modernization Act Mr. President, over the past few weeks several of our colleagues on the other side of the aisle have given rousing statements on health care. There is no question that health care is of paramount importance on American families. On that we can all agree. I am sure it will come as no surprise that I disagree with a number of points my colleagues have raised. In fact, some of their allegations are just plain wrong, particularly with respect to the Medicare prescription drug law which I helped to negotiate. I was a member of the tripartisan group that came up with a bill that I think would have been supported by the 20 Democrats at the time. I have been working on this ever since and was on the conference committee, sat in for days, weeks, and months on that conference committee to negotiate this bill. It is mind-boggling some Senators seem willing to sacrifice the health and well-being of beneficiaries by spreading mistruths about the law. These mistruths could cause a beneficiary to forego learning more about provisions in the law that could really help, such as the Medicare-approved discount card program which study after study shows is delivering real savings, or the voluntary Part D benefits that begin in 2006. This continued misinformation and set of damaging attacks are a tremendous disservice to Medicare beneficiaries. So I wanted to take this opportunity to set the record straight. Opponents have characterized the Medicare law as a failure for beneficiaries. What poppycock. To me, we would have failed had we not passed the Medicare Modernization Act, had we not given beneficiaries what they need, meaningful prescription drug coverage and a stronger Medicare Program. Let me highlight a few areas in which we need to set the record straight. The first is the cost estimates of the MMA. I will refer to this bill, the Medicare Modernization Act, from here on in as the MMA. That means the Medicare Modernization Act. Let me talk about cost estimates. The central theme echoed by those who seek to discredit the new Medicare law is the allegation that the administration hid the true cost of the Medicare law from the Congress before the final vote. This is simply political election year hyperbole. The opponents of the drug benefit have made this claim because the complete and final cost estimate from the CMS Office of the Actuary was not finished before the vote took place. Let's be clear, the administration's cost estimate was not withheld from Congress because there was not a final cost estimate from CMS to withhold. The CMS cost estimate was not even completed until December 23, 2003--long after the House and Senate vote, long after the bill was signed into law. So let's get rid of that argument right off the bat because it is a false, fallacious argument. Rick Foster, the chief actuary for the Centers for Medicare and Medicaid Services confirmed these facts to us earlier this year in a Finance Committee briefing and we all know that. Even after that briefing, however, some chose to continue this erroneous attack, perhaps because they did not take the time to attend the briefing. To me, this is but another indication of election year hyperbole. Let me also be clear that we did have the official cost estimate on the Medicare bill before the vote. That estimate, as my colleagues are well aware, is the one from the Congressional Budget Office, not CMS. That is what binds us. That cost estimate, our official cost estimate, by the entity we rely on in Congress, was available to every Member of Congress before the measure was presented to either the House or the Senate. No one should doubt that we had the true cost estimate for the prescription drug bill last year, and everyone in this body and the other body had access to it before the vote. There also have been claims that the administration changes its cost estimate. Again, that is not the case. The President's mid-session review did update the estimates of Medicare outlays, but it did not change the estimate of the Medicare Modernization Act, the MMA. In fact, Rick Foster, the CMS actuary, has said you simply cannot add the change in estimated outlays to the MMA estimate and declare you have a new estimate. Apparently, Mr. Foster's words, the words of a trained actuary, don't matter to some of these so-called critics. If opponents of the Medicare bill value his opinion of cost estimates so highly, why do they ignore him now? That is amazing to me. They will quote part of what he said-- but ignore the other part of what he said. Mr. Foster has said that the MMA estimate has not changed; but despite that, opponents of the MMA have wrongly claimed that it did. Again, it is just political hyperbole. We had--and have--the true cost estimates from CBO. Case closed. That is what we have to rely on in the Senate Finance Committee. Now let me address the accusations that the bill prohibits Medicare from negotiations with drug companies. This is another one of the fallacious things that enemies of the bill have been spewing forth. Those who make this charge imply, wrongly, 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. The absurd claim that the Government will not be negotiating with drug makers comes from a non-interference clause in the Medicare law. This noninterference clause 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 fallacious statements that have been made on this floor. Let me be clear, the non-interference clause is at the heart of the bill'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 the minority charges on this provision--some in the minority; not all in the minority would agree with some of these fallacious charges--but what is ironic about these minority charges by some on this provision is that the same non-interference clause was in the Daschle-Kennedy-Rockefeller bill and the Gephardt-Dingell-Stark bills in the year 2000. I hate to say this, but if my memory serves me correctly, these are leading Democrats in the Senate and in the House. They are not Republicans. It is the same provision that is being condemned by some in this body through hyperbole, political hyperbole. In fact, I want to read this to you: In administering the prescription drug benefit program established under this part, the Secretary may not--(1) require a particular formulary or institute a price structure for benefits; (2) interfere in any way with negotiations between private entities and drug manufacturers, or wholesalers; or (3) otherwise interfere with the competitive nature of providing a prescription drug benefit through private entities. Now, what is the source of that language? It is from S. 2541, the Medicare Expansion for Needed Drugs, or MEND, Act, introduced in 2000 by Senator Daschle and cosponsored by 33 Democrats, including Senator Kerry. Think about it, some of the very people who are criticizing the MMA, that passed overwhelmingly in both Houses of Congress. I find it curious that this approach, which is mislabeled as ``preventing Medicare from negotiating,'' was fine in the year 2000 when the Democrats were putting forth a bill, but not fine when enacted into law by a Republican President and a Republican Congress in 2003. I must remind my colleagues that Senator Daschle, the distinguished Senator from South Dakota, 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 ought to be ashamed of themselves and ought to quit playing politics with a bill that is so important for senior citizens all over this country. A related charge I heard one minority Senator make was that this so- called non-interference language contributed to next year's Part B premium increase. Again, this is plain wrong. The Part B premium reflects the costs of Part B benefits. These include physician services and other outpatient services. I would like to remind my colleagues that when Medicare was first created, the Government paid 50 percent of the premiums and beneficiaries paid 50 percent of the premiums. That was when Medicare was instituted. Today, the Government pays 75 percent of the premiums and beneficiaries pay only 25 percent of the premiums because we in the Congress were trying to help limit beneficiaries' out-of-pocket costs. 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 earlier this year: [T]he Secretary would not be able to negotiate prices that further reduce federal spending to a significant degree. The CBO in that letter went on to say: CBO estimates 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, I think, inevitably cause prices to rise as companies would not be able to do business in this country as they have in the past. The bill's entire approach is to get Medicare beneficiaries the best deal through vigorous market competition, not price controls. Again, it might be illustrative to quote from the distinguished minority leader, Senator Daschle, when he outlined the principles for the MEND Act. Now remember, the MEND Act was a Democrat-sponsored act. This is what Senator Daschle said: [W]e should take a lesson from the best private insurance companies: Cost-savings should be achieved through competition, not regulation or price controls. Now, keep in mind, they had the same provision in their bill that they are criticizing now in the MMA. This year, even the Washington Post, in a February 17 editorial, stated that: Governments are notoriously bad at setting prices, and the U.S. government is notoriously bad at setting prices in the medical realm. There is proof of that. In an August 2000 report, the Government Accountability Office, the GAO, found that drug manufacturers could respond to a mandate that they extend Federal prices to a larger share of purchasers by adjusting their prices to others. The larger the group that would be newly entitled to receive a Federal price, the greater the incentive for drug manufacturers to raise that price. The GAO stated that with the Medicaid rebate experience, specifically, that following enactment of the rebate program, discounts for outpatient drugs decreased significantly because manufacturers raised the prices they charged large private purchasers. Now, this shows how Federal and non-Federal drug price discounts could change if Medicare beneficiaries had access to the same price discounts available to Federal purchasers. It is common sense that expanding access to the Medicaid rebate means weaker discounts for everyone. If almost everyone can get the Medicaid ``best price,'' then no one gets a discount. Another charge we hear frequently is that Congress should give Medicare beneficiaries access to the Veterans' Administration approach. Well, what these critics do not tell beneficiaries about the VA model is that it is a very restrictive formulary and that the drugs are available only through a limited number of VA pharmacies. The VA has lower prices in part because it has a very restrictive formulary. Now, this puzzles me because many proponents of the VA system also have expressed the concern of ensuring beneficiaries' access to drugs. In calling for the VA system, Families USA spotlighted 15 drugs commonly taken by Medicare beneficiaries. In fact, of the 15 drugs mentioned by Families USA, only nine are even on the VA formulary. The rest are not even covered. Sixty-one percent of the drugs on the VA formulary are generic drugs. If a Medicare beneficiary needed a brand-name drug--and the vast majority either do or will--the beneficiary would have to meet a narrow set of exceptions to get that brand-name drug under the VA system. The drugs are only dispensed at VA facilities. Such a closed system would limit Medicare beneficiaries' access to their neighborhood pharmacy. I am not for limiting beneficiaries' access to their neighborhood pharmacies. And I don't think any of my colleagues are either, in spite of some of the comments that have been made on the floor of the Senate. So while proposing the VA system might make for a good sound bite or advantageous sound bite, they might think, there are some important facts they are not sharing that could do more harm than good. And those facts were taken into consideration when we wrote this bill. We did not rely on CMS price fixing, but instead created a new drug benefit that relies on strong market competition and an approach in keeping with the principles of the MEND Act, the Democratic act, as introduced by Senator Daschle and cosponsored by 33 Democrats, including their candidate for President, Senator John Kerry. But that was then, I guess this is now. All of a sudden, this provision they adopted, that they were articulating, that they were pushing, is now suddenly a bad provision for senior citizens. Moving along, I want to talk about the Part B premium increase. There has been a good deal of criticism on the increase of the Part B premium, and that was understandable as many of us were shocked at so high a jump. Many of us were concerned about the impact this could have on beneficiaries, especially those living on fixed incomes. But it might be helpful to look at why this increase occurred rather than demagogue about it. The vast majority of the premium increase resulted from physician payment changes made in a previous year and by those in the Medicare Modernization Act that were needed to ensure beneficiaries' access to care. I can't relate how many letters I have received over the past few years from beneficiaries and providers alike who were concerned about the negative impact of reductions in physician reimbursement. Preventing those cuts was not a partisan issue. Indeed, Republicans and Democrats worked to prevent payment cuts to physicians so access to their services would be protected. In fact, some of today's most vocal critics of the administration joined with 71 Democrat and Republican Senators to sign a letter to the administration calling for immediate action to prevent payment cuts to physicians. We all knew that had to be done if we were going to be fair to those on Medicare. Virtually all of us hailed the ensuing action to prevent the physician pay cuts. Yet today many of my colleagues on the other side of the aisle criticize the Part B premium increase, four-fifths of which is directly attributable to the actions they requested to prevent the decrease in physician payments. Is that right? I don't think so. Let's look at another reason the Part B premium increased so much this year. Congress increased payments made on behalf of beneficiaries who choose a Medicare Advantage plan. The higher payments, like the physician payments, were necessary to preserve access to Medicare Advantage plans and were supported by both Democrats and Republicans. In a letter to Medicare conferees, several prominent Democratic Senators expressed support for including these higher payments in the final Medicare bill. Senator Kerry, by the way, was a lead cosponsor of an amendment to increase Medicare Advantage funding. In his floor statement last June, he said: The Schumer-Santorum-Kerry amendment focuses on protecting this important option for seniors who have nowhere else to turn for the quality health care coverage they need. Senator Kerry went on to state: I urge my colleagues to support the additional funding that is urgently needed to strengthen the Medicare+Choice program for seniors. This should be among our highest priorities in this year's Medicare debate. ``Among the highest priorities''--that is their nominee for President of the United States. These are the reasons the Medicare premiums went up. It wasn't because of the new Medicare bill. I find it so disingenuous for some of my colleagues to question the premium increase when they, in fact, supported the changes that led to the premium increase. Better medical care and more widespread medical care is being given as a result of the bipartisan work that we did. There were also six amendments to the Medicare bill introduced by Democratic Senators that, if approved, would have increased the Part B premium even more--six amendments by Democrats that would have increased the Part B premium even more. Yet we hear the persistent minority drumbeat trying to say that this increase was caused by the new Medicare reform bill. That is pure bunk. The amazing thing is, I guess they don't fully realize it. So I am making this speech to make sure they do realize it and that they understand it. When we hear charges that the new Medicare bill drove up the Part B premium--which as I have noted are largely false--we must also keep in mind the fact that the premium increase will not affect low-income beneficiaries, whose premiums are paid for by the Government. We must also bear in mind the important fact that the premium also reflects new Medicare coverage for important preventive benefits. Practically every other American with private health coverage has a wider array of preventive benefits. But Medicare beneficiaries, who could possibly benefit the most from the value of prevention, did not have the benefit of coverage for many of these basic preventive services prior to enactment of the Medicare reform bill. That didn't make sense. Now Medicare will cover important screenings for cholesterol and diabetes, as well as the initial physical. Finally, the MMA can save beneficiaries money. Reforms and overpayments for drugs, combined with the new preventive benefits, will lower beneficiaries' out-of-pocket costs by $270 million in 2005. Beneficiaries deserve to know the facts, not to be fed lines that amount to nothing more than political year potshots. They deserve to know how the new benefit will work, not to be given misleading information that may cause them to forgo learning more about the prescription drug benefit. Quite frankly, I am surprised and dismayed that some who claim to care about seniors and the disabled have unfairly distorted the new law and have spread falsehoods about what it does. To me, their actions are irresponsible and wrong and should be condemned as election year politicking at its very worst. Beneficiaries deserve much better. I hope my colleagues will think twice about frightening beneficiaries with untruths and distortions. The new Medicare law is a solid attempt to improve some glaring deficits in the Medicare program and should be heralded as what it is: a bipartisan effort to help seniors and the disabled, and not hurt them as some so irresponsibly have charged. How anybody can say that this new Medicare bill will not help seniors when we are going to spend an additional $400 billion plus over the next number of years that would never have been there without this bill is beyond me. I don't see how anybody can stand up with a straight face and make some of the comments and charges that have been made. In all honesty, it is hard to believe some of these charges. And in the process, we have taken care of more of the poor than was even contemplated by the prior attempts to reform Medicare. The poor are very much helped by that bill. Frankly, virtually everybody is very much helped by that bill. I personally think it is despicable to come on the floor or to speak in public and try to scare our seniors so they don't know what to do. Seniors can have confidence in CMS and have some confidence in the Medicare bill which will be for their benefit. Judicial Nominations

Mr. HATCH. Mr. President, I rise to speak about four fine judicial nominees that deserve votes before we adjourn this Congress. Three of these four nominees received the ABA's highest rating, unanimously ``well-qualified.'' The Judiciary Committee has thoroughly reviewed their background and qualifications and determined that they would all make fine Federal judges. All four were reported favorably by the committee, three of the four by unanimous vote. They have put forward their good names for the Senate's evaluation, and they deserve our attention before we adjourn. We owe them no less. Susan Neilson has been waiting a long time for a vote. She was nominated to the Sixth Circuit Court of Appeals, for a seat that has been classified as a judicial emergency, on November 8, 2001. That is nearly 3 years that she has been waiting for this body to consider her nomination. Mr. President, it is time. Judge Neilson is an outstanding candidate for this post. She received a unanimous ``well qualified'' rating from the American Bar Association. She graduated with high distinction from the University of Michigan Honors College in 1977 and was elected to Phi Beta Kappa. Judge Neilson received her law degree, cum laude, from Wayne State University School of Law in 1980 and was a member of its law review. Following her graduation, Judge Neilson began her legal career as an associate at the Detroit law firm of Dickinson Wright, one of the oldest and most prestigious law firms in Michigan. She became a partner in the firm in 1986 and continued to practice there until 1991. While in private practice, Judge Neilson appeared in court on a regular basis and handled hundreds of cases at both the trial and appellate levels. In 1991, Governor John M. Engler appointed her to the 3rd Judicial Circuit Court of Michigan, the largest trial court in the State. She was reelected to that post in 1992, 1996, and 2002. She currently is assigned to the criminal division of the court. Despite her busy schedule, Judge Neilson makes it a priority to give back to the community. She is active in many service organizations including the Catholic Lawyers Society and the Worship Commission of her church. She served as President of her local chapter of Soroptimist International, a worldwide organization working to promote human rights and the status of women. Judge Neilson is also a prolific writer. She has written numerous articles and was co-editor and author of Michigan Civil Procedure, a two-volume treatise on all areas of Michigan civil practice. This treatise was selected by the Michigan Judicial Institute for purchase on behalf of every trial court judge in the State of Michigan and received the ``Plain English Award'' from the State Bar of Michigan. I also understand that she is currently working on a new book. Judge Neilson is imminently qualified for the Sixth Circuit. I commend her to my colleagues and urge them to vote for her confirmation. Micaela Alvarez, nominated to be United States District Judge for the Southern District of Texas, is an experienced attorney and trial judge. She began her legal career in 1989 as an Associate Litigation Attorney at the law firm of Atlas & Hall, in McAllen, TX. Her practice focused primarily on insurance defense, employment defense, and wrongful discharge defense. Judge Alvarez later joined the Law Offices of Ronald G. Hole where she expanded her practice to include medical malpractice defense and products liability. In 1995, she was appointed to the 139th Judicial District Court in Hidalgo County, TX, where she served as presiding judge. Judge Alvarez brings a wealth of experience to the Federal bench, and she will make an excellent addition to the Southern District of Texas. Keith Starrett, nominated to the U.S. District Court for the Southern District of Mississippi, is an exceptional nominee with a long and distinguished record both as an attorney and judge. He is a graduate of Mississippi State University and the University of Mississippi School of Law. He is an experienced litigator who has represented plaintiffs, defendants, debtors, creditors, and criminal defendants in both State and Federal courts. While in private practice he litigated over 400 cases. In 1992 he was appointed to the Fourteenth Circuit Court of Mississippi where he presently serves. The American Bar Association unanimously gave him its highest rating of ``well qualified.'' The Mississippi Bar Association awarded him with the Judicial Excellence Award in 2003. Undoubtedly, he will be a wonderful addition to the Federal bench. Christopher Boyko has been nominated to the United States District Court for the Northern District of Ohio. Judge Boyko brings 25 years of legal experience and sterling credentials to the Federal bench. He has served as a judge for the Court of Common Pleas in Cuyahoga County for 8 years. He also served on the Parma Municipal Court before joining the Court of Common Pleas. Prior to his appointment to the bench, Judge Boyko built a successful law practice, which he coupled with his duties as assistant prosecutor, prosecutor, and director of law, for the city of Parma. He also served as the legal adviser to the local police department's S.W.A.T. team, as a statutory legal counsel for the Parma School District, and as chief legal counsel for the Southwest Enforcement Bureau. The ABA has recognized this seasoned nominee with a unanimously ``Well Qualified'' rating. In addition, he has received Martindale- Hubbell's highest rating of ``AV.'' He has the distinction of having been elected to ``Who's Who in American Law,'' and the Judicial Candidates Rating Coalition, in Cleveland, unanimously gave him an ``excellent'' rating for 2004. Mr. President, I think that you will agree that these four fine nominees possess the credentials, reputation, and experience to be Federal judges. I am convinced that each of them would serve with distinction. Now, let me take a minute to dispense with the old canard that judges aren't confirmed late in an election year. When Senator Thurmond chaired this committee, during a Presidential election year, the Senate confirmed six Circuit Judges after August 1--one in August and five in October. In addition, 12 district judges were confirmed in September and October of that year. So I will follow that Thurmond rule and continue to bring the President's nominees to the committee for action and to the Senate for consideration. I am only too well aware of the unprecedented and constitutionally suspect tactics my colleagues across the aisle have used to filibuster circuit court judges. So I am under no illusion that Judge Neilson will be given the up-or-down vote that the Constitution requires. Certainly this is unlikely to occur in the closing days of this session. Be that as it may, I hope that the devious tactic of filibustering circuit judges will in no way prevent the Senate from confirming three superbly qualified district judges. I hope they will be included in the final Executive Calendar package along with four commissioners for the Sentencing Commission and four U.S. Attorneys. I understand time is precious. We are in the waning hours of this Congress, and still much is left to be done. We should not, however, in our haste to adjourn, neglect consideration of all these outstanding nominees. They deserve our attention. They deserve our time. I call on the leadership on both sides of the aisle to move these nominations and urge my colleagues to vote for the confirmation of all these distinguished nominees. Mr. President, in accordance with the unanimous consent request agreed to earlier, I suggest the absence of a quorum.

Mr. HATCH. Mr. President, I object for the moment, but I will come back to it.

Mr. HATCH. Mr. President, I withdraw my objection.