Orrin Hatch

Mr. HATCH

Mr. HATCH. I thank my colleague from Delaware. His comments speak volumes as to why we should support Governor Leavitt. I am particularly pleased and grateful for his support in this matter, as I am for the support of the two leaders.

Mr. HATCH

Mr. HATCH. Could I ask the distinguished Senator from New York if she would finish so I would have at least 5 or 6 minutes before the vote?

Mr. HATCH. No, I am not objecting, with the understanding that I ask unanimous consent that before the vote on the judge this evening, I be given 6 minutes to speak.

Mr. HATCH. Six minutes.

Mr. HATCH. That is acceptable. I modify my unanimous consent request.

Mr. HATCH. Mr. President, I thank my colleague from Oklahoma. I express my gratitude to the Democrats and, of course, our two leaders on the committee for being willing to vitiate this cloture vote and end what some perceived was a threatened filibuster of Governor Leavitt. I am very appreciative that they will allow a vote up or down tomorrow morning on Governor Leavitt's nomination as Administrator of the Environmental Protection Agency. That is what should be done. Governor Leavitt is one of the finest public servants in this country. He has served our State long and well, but he has served the whole country in a variety of ways which I will mention. It goes without saying that this is not a job Governor Leavitt has asked for or aspired to. But he has accepted the President's nomination, first of all because the President has asked him to, and second, because it's a job of critical importance for our Nation. Other than our people and our values, our Nation's environment and natural resources are our greatest asset. We in Utah understand that better than most. And in spite of what some critics of President Bush would have us believe, our Nation has been steadily getting cleaner and safer every year of his presidency. Already, President Bush has signed the Persistent Organic Pollutants Treaty. He has proposed and begun implementing ground breaking legislation to greatly accelerate the clean up of our Nation's brownfield sites. He has announced his plan to reduce off-road diesel emissions by 90 percent. Although his critics refuse to believe it, President Bush's Clear Skies initiative will, in fact, lead to quicker reductions in air pollution across the board than would otherwise be accomplished. Under President Bush, powerplants will be updated and become cleaner than ever before. Under President Bush our forests and other natural resources will become better managed, and the threat of forest fires will be reduced--something that has not been done in the past. Most important, our President is accomplishing these environmental goals without a dramatic increase in Federal mandates. He is doing it without pitting the environment against human needs. He is doing it without pinning the ``polluter'' label on our industry, as the past administration was so apt to do. President Bush has shifted the environmental debate from one about process and control to one about outcomes and results. Governor Leavitt has a similar record for improving the environment in Utah. Before Governor Leavitt came to office, Utah often failed to meet national clean air standards. In large part this was because most Utahns live on a valley floor surrounded by mountains. Through hard work and consensus building, though, Governor Leavitt helped Utah to overcome our air quality obstacles, and our State now is in consistent compliance with the EPA's air quality standards. Governor Leavitt also has been a leader in finding solutions to regional air problems. He helped to begin the Grand Canyon Visibility Transport Commission and the Western Regional Air Partnership, which established a wide sweeping collaborative approach to reducing haze over our national parks and public lands on the Colorado Plateau. When Governor Leavitt took office, about 60 percent of Utah's streams met Federal water quality standards. This represented the current national average for States. Under his leadership, though, 73 percent of Utah's streams now meet the Federal standards, which is well above the national average. With his oversight, Utah developed a collaborative approach to meeting the Concentrated Animal Feeding Operations regulations. His approach was so successful that the U.S. Department of Agriculture has adopted it as a model. Governor Leavitt has also led initiatives in our State to preserve our open space, improve fisheries, upgrade sewer systems, and clean up 5,000 underground gas storage tanks, thus preventing their contamination of Utah's water supply. Thanks to Governor Leavitt's careful stewardship, Utah's natural resources have not only survived a period of intense economic and population growth but have been improved across the board. Is it any wonder that President Bush looks to Governor Leavitt to lead the charge on this very important front, when the Governor has so successfully pursued a collaborative approach to improving the environment? To anyone who questions Michael Leavitt's commitment, I say: Look at the record; it speaks for itself. We can also look at Utah's budget during his administration. In his 10 years as Governor, Mike Leavitt won a 41 percent increase in spending on environmental protection, and that's after adjusting for inflation. According to the Environmental Council of States, the average per capita spending on the environment is $51.80. Under Michael Leavitt, however, Utah surpassed that average, spending $62.31 per capita on the environment. The average State spends about 1.4 percent of its budget on the environment. Under Governor Leavitt's leadership, Utah now spends 2 percent of its budget on the environment. The record proves that Governor Leavitt is a champion of the environment. But the record also informs us that he is one of the finest public managers in the Nation. The Governor has worked tirelessly for our State. Yet, he has found the time to serve as the chair of the Council of State Governors, the Republican Governors' Association, the Western Governors' Association, and the National Governors' Association. You don't get there without being one of the best, if not the best. In 5 of Mike Leavitt's 10 years as Utah's chief executive, our State has been ranked the best managed State. USA Today recently called Utah the best fiscally managed State in the country. Even after the extremely tough financial times faced by our States in recent years, under Governor Leavitt, Utah has maintained its Triple A bond rating. How could President Bush have found a better candidate to head up the Environmental Protection Agency? The answer is he couldn't have. And how does holding up Michael Leavitt's nomination help our environment or our nation? We finally concluded it doesn't. The obvious answer is: it doesn't. Clearly, confirming this nominee is in the best interest of our environment and our Nation. Finally, let me just say that I have known Mike Leavitt and his wonderful wife Jackie for nearly 30 years. No one I know works harder, is more fair and honest, is more capable, and is more sincere than my good friend, the Governor of Utah. I urge my colleagues to join me in confirming Michael Leavitt to fill one of the most important jobs in government, the Administrator of the Environmental Protection Agency. I thank all of those who are making this possible with an up-or-down vote tomorrow morning.

Mr. HATCH. As I understand it, the distinguished minority floor manager wants to have a UC.

Mr. HATCH. Mr. President, if I could have 5 minutes to speak before the vote on the judge this evening.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to speak in support of the nomination of Dale Susan Fischer for the U.S. District Court for the Central District of California. Judge Fischer is a Harvard Law graduate. She was a practicing attorney for 17 years before her appointment to the Municipal Court of California, Los Angeles Judicial District, in 1997. Three years later, she became a judge of the Superior Court of California, Los Angeles County, where she currently sits. Judge Fischer has more than 20 years of legal experience. She will be a fine addition to the Federal bench. We are proud to support her nomination. I recommend that my colleagues vote in her favor.

Mr. HATCH. Mr. President, I ask for the yeas and nays on the nomination.

Mr. HATCH

Mr. HATCH. Mr. President, I truly wish that I did not have to address this body on this topic. Last February, I stood before this body and urged my colleagues to ensure the Help America Vote Act of 2002, HAVA, contained adequate funding, assuring the States that they will have the necessary resources to comply with the mandates contained in the new law. In fact, the Senate adopted a Sense of the Senate amendment to reinforce our commitment to fund this act fully so that States and localities would not be hurt by yet another unfunded mandate. Our vote today should reflect that commitment. As this body debated HAVA in February of 2002. I asked this pointed question: ``What if a future Congress fails to provide adequate funding for this legislation?'' Well, here we are just one Congress later and our States and localities--who were then experiencing budget shortfalls in early 2002 and are now facing budget crises--are now forced to make extremely difficult choices. We in Congress have fallen woefully short in delivering on our promise to fully fund the mandated portions of the bill. Mr. President, I cannot tell you how many individuals in Utah have come up to me and expressed their great displeasure at the lack of funding for the HAVA law. The Congressional Budget Office has estimated the cost of HAVA at $3 billion. That is billion with a ``B.'' Let us look at the hard realities. Is it ethical for us, at a time when the majority of our States are facing serious financial difficulties, when some, such as my home State of Utah are cutting off health care benefits to children and closing prisons, to even suggest they foot the entire bill for these new mandates? I think not. In this case, I'm sorry to have been correct. But, it is one Congress later and we are exactly where I warned that we would be. For the good of the States and the voters, we need to make available the resources necessary to fully implement HAVA. I urge my colleagues to remember your commitment to your State and vote in favor of this amendment.

Mr. HATCH

Mr. HATCH. Madam President, I rise today with Senator Leahy, Senator Nelson of Florida, and Senator Schumer to offer an amendment to the CAN SPAM Act of 2003. This amendment strengthens the act's criminal provisions by incorporating key provisions of the Criminal Spam Act of 2003, which I worked closely with Senators Leahy, Grassley, Schumer, Nelson of Florida and others to draft earlier this year and which was favorably reported out of the Judiciary Committee. To send an effective and adequate message of deterrence to the most egregious spammers, stiff criminal penalties must be an element of any comprehensive anti- spam legislative package. Over the course of the past several Congresses we have become more and more aware of the problems associated with unsolicited commercial e-mail, or spam. Rarely a minute passes that American consumers and their children are not bombarded with e-mail messages that promote pornographic web sites, illegally pirated software, bogus charities, pyramid schemes and other ``get rich quick'' or ``make money fast'' scams. The rapid increase in the volume of spam has imposed enormous costs on our economy--potentially $10 billion in 2003 alone--as well as unprecedented risks on our children and other vulnerable components of our society. Spam has become the tool of choice for those who distribute pornography and indulge in fraud schemes. We all know of children who have opened unsolicited e-mail messages with benign subject lines only to be exposed to sexually explicit images. We have heard of seniors using their hard earned savings to buy fraudulent health care products advertised on-line or of being duped into sharing sensitive personal information to later find themselves victims of identity and credit card theft. We cannot afford to stand idle and continue to allow sophisticated spammers to use abusive tactics to send millions of e-mail messages quickly, at an extremely low cost, with no repercussions. The sheer volume of spam, which is growing at an exponential rate, is overwhelming entire network systems, as well as consumers' in-boxes. By year end, it is estimated that 50 percent of all e-mail traffic will be spam. It is no exaggeration to say that spam is threatening the future viability of all e-commerce. The time has come to curb the growth of spam on all fronts--through aggressive civil and criminal enforcement actions, as well as innovative technological solutions. The criminal provisions that make up this amendment are intended to target those who use fraudulent and deceptive means to send unwanted e- mail messages. A recent study conducted by the Federal Trade Commission demonstrates that this is no small number. According to the FTC, 66 percent of spam contains some kind of false, fraudulent, or misleading information, and one-third of all spam contains a fraudulent return e- mail address that is included in the routing information, or header, of the e-mail message. By concealing their identities, spammers succeed in evading Internet filters, luring consumers into opening messages, and preventing consumers, ISPs and investigators from tracking them down to stop their unwelcomed messages. This amendment significantly strengthens the criminal penalties contained in the CAN SPAM Act by striking its misdemeanor false header offense and replacing it with five new felony offenses. The amendment makes it a crime to hack into a computer, or to use a computer system that the owner has made available for other purposes, as a conduit for bulk commercial e-mail. It prohibits sending bulk commercial e-mail that conceals the true source, destination, routing or authentication information of the e-mail, or is generated from multiple e-mail accounts or domain names that falsify the identity of the actual registrant. It also prohibits sending bulk commercial e-mail that is generated from multiple e-mail accounts or domain names that falsify the identity of the actual registrant, or from Internet Protocol, IP, addresses that have been hijacked from their true assignees. The amendment includes stiff penalties intended to deter the most abusive spammers. Recidivists and those who send spam to commit another felony face a sentence of up to 5 years' imprisonment. Those who hack into another's computer system to send spam, those who send large numbers of spam, and spam kingpins who direct others in their spam operations, face up to 3 years' imprisonment. Other illegal spammers face up to a year in prison. The amendment provides additional deterrence with criminal forfeiture provisions and the potential for sentencing enhancements for those who generate e-mail addresses through harvesting and dictionary attacks. I commend Senators Burns, Wyden, McCain, and Hollings for their hard work over the course of the past several Congresses on the CAN SPAM Act. They have worked diligently to enhance the privacy of consumers without unnecessarily burdening legitimate electronic commerce. The balance is a difficult one to strike. I compliment these fine Senators for being able to strike that balance and get it done. I believe enactment of the CAN SPAM Act is an important first step toward curbing predatory and abusive commercial e-mail, but it is certainly not the end. We all recognize that there is no single solution to the spam problem. While we must critically and continually monitor the effectiveness of any legislative solution we enact, we must pursue other avenues as well. Technological fixes, education and international enforcement are integral components to any effective solution. To this end, we will need the assistance of private industry and our international partners. I look forward to working with my colleagues in both Houses as we attempt to confront the spam problem on all fronts. I urge my colleagues to support this amendment which will strengthen the comprehensive legislative package that is before us today.

Mr. HATCH. I am happy to do that.

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

Mr. HATCH. Madam President, I send an amendment to the desk.

Mr. HATCH. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. HATCH. I thank my colleague for those kind remarks and thank him and Senator McCain for their leadership in the Senate. I ask unanimous consent to add Senator Grassley as a cosponsor of this amendment, No. 1893. Senator Grassley has worked with me and Senator Leahy every step of the way and deserves a lot of credit.

Mr. HATCH

Mr. HATCH. I ask unanimous consent that Sandra Wilkinson, a detailee to the Democratic staff and the Senate Judiciary Committee, be granted full floor privileges for the remainder of the debate on the CAN-SPAM Act of 2003.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today because it is difficult for me to understand how anybody could support this barbaric, heinous approach toward abortion. The Senate passed S. 3, the partial-birth abortion ban of 2003, with strong bipartisan support, 64 to 33, back in March of this year. The legislation passed the House in June with similarly strong bipartisan support, 282 to 139. We were then forced to debate the motion to go to conference in September. We completed the conference in September. Now we are finally able to vote on passage of the conference report. Let's get on with it. This has taken a long time in this Congress, but it also has taken 7 years to get to this point. Even though the Congress has passed similar legislation before, finally we will be able to send it to President Bush, who will sign it into law. I know the people of my home State of Utah recognize the importance of this effort. The vast majority of people in Utah and, I believe, in our country, recognize that the practice of partial-birth abortion is immoral, offensive, and impossible to justify. This procedure is so heinous that even many who consider themselves pro-choice cannot defend it. Senator Santorum should be applauded for his tireless efforts to achieve this goal. His leadership has been essential and very much appreciated. I admire his efforts to protect innocent human life, especially here, where it is so graphically obvious this procedure cannot be defended. By now we have all seen Dr. B. Benoit's film of the 3-dimensional ultrasound of the baby in utero, yawning and even smiling. This appeared in the Evening Standard in London. It is a picture of an unborn baby smiling inside the womb. It says: ``Picture Exclusive, Proof Babies Smile in Womb.'' It is truly amazing and enlightening what advancing technology has enabled us to see. This truly is an incredible window into the mother's womb, where it has to be clear to all who view it that this is a living human being, a living baby. Yet there are those who want to protect the ability to violently crush this young life. In the case of the procedure we seek to ban with this legislation, it is a baby just inches away from being born. Yes, inches away from being born. For those who may not have a clear understanding of this procedure, let me describe it. This is a little graphic, I agree, but we need to ensure that the American people understand what is going on. How anyone can justify this barbaric procedure is beyond me. A baby is almost fully delivered with only her head remaining inside the birth canal when the doctor stabs scissors into the base of the baby's skull to open a hole into which he then inserts a suction tube and sucks out the brain so the skull collapses. Then they pull the baby out and say it is not a living human being even though just seconds before this was a full human being, a living human being with legs dangling and kicking. I honestly do not know how anyone can avoid being truly sickened when they see a baby being killed in this gruesome manner. It is not done on a mass of tissue but to a living baby capable of living outside the womb, capable of feeling pain, and at the time this procedure is typically performed, capable of living outside the womb. All this legislation does is ban the one procedure. As the testimony in the House made clear, the fact is, there is no medical need to allow this type of procedure. It is never medically necessary, it is never the safest procedure available, and it is morally reprehensible and unconscionable. As I mentioned when we debated the bill in the spring, we have all heard in recent years about teenage girls giving birth and dumping their newborns into the trash can. One woman was criminally charged after giving birth to a child in a bathroom stall during the prom and strangling and suffocating the baby before leaving the body in the trash. Tragically, there have been several incidents around the country in the past few years. This should not surprise us. This is what happens when we continue, as some would do here, to devalue human life--those who would like to stop this bill by and large. William Raspberry argued in a column in the Washington Post: . . . only a short distance [exists] between what [these teenagers] have been sentenced for doing and what doctors get paid to do. He got it right. When you think about it, it is incredible that there is a mere 3 inches separating a partial-birth abortion from murder. Partial-birth abortion simply has no place in our society and rightly should be banned. President Bush has described partial-birth abortion as ``an abhorrent procedure that offends human dignity.'' With that, I wholeheartedly agree. Basic human decency, I hope, will prevail. I pray that never again will it be legal in this country to perform this barbaric procedure. Unfortunately, I am sure the opponents of this measure will seek to challenge the law in court where I hope good judgment will ultimately prevail. In Stenberg v. Carhart, the Supreme Court confirmed: . . . by no means must physicians [be granted] unfettered discretion in their selection of abortion methods. The House has already passed this conference report. It is time for this Congress to finish its work and send this bill to the President for his signature. Oddly enough, young girls out there, young women, are becoming more and more opposed to abortion. I believe it has been this debate, this barbaric procedure that is the cause for them to think it through and to acknowledge that inside that womb of the mother is a living human being, a living baby, and especially one capable of living outside the mother's womb. This is a serious debate. This is as serious a bill as we can have before the Senate. I hope our colleagues will vote overwhelmingly to pass the conference report as we simply have to get rid of this barbaric and inhumane procedure. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I am sorry to keep the body a little bit later, but I do think we need to make some points that really need to be made. We should be debating the Class Action Fairness Act of 2003 rather than squandering away the Senate's time debating a motion to proceed to the bill. That has become typical around here. Anything that can delay, anything that can make it miserable, anything that can make it difficult to pass legislation or even consider legislation, we are finding the other side is doing to us. Yesterday, my colleague from Vermont, the ranking member of the Judiciary Committee, observed accurately that the days remaining in this session are numbered and that floor time is indeed precious. But what puzzles me is if there is such a premium for time, then why in the world are we faced with a Democrat filibuster on the motion to proceed to a bill? Usually, if you are going to filibuster, you filibuster the bill. So we all know what is going on here. From what I know, based on the remarks yesterday from the ranking member and others, I understand that there is an objection to proceeding to S. 1751 because it has been characterized by some as ``special interest legislation.'' What ``special interest'' are we talking about? Are we talking about the ``special interest'' of millions of consumers throughout the country who are affected every day by class action abuses, or are we talking about the ``special interest'' of the everyday American worker who stands to lose because his or her employer can't increase wages or offer better health benefits because of the commercial uncertainties created by uncontrolled class action litigation, or are we talking about the ``special interest'' of the general American public that is losing faith in the American civil justice system because of the outrageous class action coupon settlements that only benefit the attorneys? On this whole special interest point, I would like to direct your attention to a recent poll showing that the overwhelming majority of Americans believe that class action lawsuits benefit lawyers at the expense of their clients. Look at this chart. ``Opinions on class action lawsuits; who benefits most from class action lawsuits.'' Lawyers for the plaintiffs, the public says--47 percent believe the lawyers benefit the most. They are right, especially in these frivolous suits we have been referring to. Buyers of products, 5 percent; companies being sued, 7 percent; 9 percent of the American people think the plaintiffs benefit the most from class action lawsuits--the ones they are bringing the suits for. Only 9 percent of the American public think the injured parties, the so-called victims, are the ones who benefit; 12 percent don't know; 20 percent say the lawyers for companies. So of the total opinion of the American people in a poll conducted, with an error margin of plus or minus 3.5 percentage points, a total 67 percent of the American people believe the lawyers are the ones who benefit from these class action suits; 67 percent believe class action lawsuits are a virtual bonanza for lawyers. The public is not too dumb; they are right. In stark contrast, the poll shows only 9 percent of Americans believe the class action lawsuits benefit the victims or the plaintiffs themselves. When the public perception of class action lawsuits in our civil justice system is so negatively skewed, I find it difficult to say with a straight face this bill somehow advances ``a special interest.'' Perhaps the ``special interest'' we are really talking about is that belonging to one Hilda Bankston. Who is Hilda Bankston? This is Hilda in the photo. A beautiful woman, a decent person. I can tell you with certainty she is not a tobacco company. She is not a gun manufacturer or somebody who pollutes the environment. Hilda Bankston and her husband Mitch owned Bankston Drugstore in Fayette, MS, a small local pharmacy where Mitch worked as a pharmacist. The Bankstons were dragged into hundreds of lawsuits filed by class action attorneys in the State of Mississippi by virtue of owning the only drugstore in Jefferson County. Their small business became a prime target for forum-shopping class action attorneys in pharmaceutical cases. The Bankstons' nightmare began in 1999 when Bankston Drugstore was named a defendant in the fen-phen diet drug class action lawsuit simply for filling a prescription written by a doctor--something they were supposed to do. Since then, plaintiffs lawyers have filed hundreds of pharmaceutical lawsuits against Bankston Drugstore. Every time a big drug maker was sued, even if the company was located in New York, or California, the plaintiffs' lawyers added Hilda Bankston and her husband as defendants--this hard-working owner of a single drugstore-- just because she sold that drug from her neighborhood drugstore, which was her obligation to do. Even though Mrs. Bankston no longer owns the drugstore, she continues to be named a defendant in these lawsuits today and is buried under a mountain of discovery requests because of the litigation. On a more personal level, Mrs. Bankston describes to us the toll this ordeal has taken on her both personally and professionally. She testified that, ``no small business should have to endure the nightmares I have experienced. . . . I have spent many sleepless nights wondering if my business would survive the tidal wave of lawsuits cresting over it.'' Mrs. Bankston also suffered the loss of her husband when, within three weeks of being named as a defendant in the fen-phen case, her husband died of a heart attack. It is stories like Mrs. Bankston's--an every-day citizen just trying to fulfill the American dream--that makes this bill so compelling. I think to characterize this bill as appeasing ``special interests'' is not only disingenuous but it ignores the extensive mountain of evidence showing otherwise. It is pure, unmitigated bunk and they know it. I also understand the ranking member expressed surprise and concern over the lone difference between S. 274 as reported out of the committee and the rule XIV version of the bill, S. 1751, that we are now trying to move forward. To set the record straight, we are simply invoking Senate rule XIV, which is procedurally proper, to simply accommodate the revised mass actions provision the committee had removed from the bill during markup on the condition that it would be modified and replaced in the bill before floor consideration. That is what we agreed to do. That is all we did. The rule XIV version of the bill, which is numbered S. 1751, is the identical bill we voted favorably out of committee, except for the return of the revised mass actions provision the members on the Judiciary Committee knew or should have known would be restored into the bill before floor consideration. Just on Friday, the majority leader asked unanimous consent to bring up S. 274, substituting with the text of what is now S. 1751. There was an objection from the other side of the aisle which forced the majority leader to bring up S. 1751 under rule XIV. To now hear we are somehow not acting in good faith is, at best, a misunderstanding and at worst a deliberate attempt to mislead. You make the decision, you make the judgment on that. I know what I think. By way of background, I want to explain what happened with this provision. When the original bill, S. 274, was marked up during committee last April, the committee members agreed to an amendment offered by Senators Feinstein and Specter striking two provisions from the bill only with the understanding that the language would be modified and replaced before floor consideration. The first provision defined private State attorneys general actions as class actions within the meaning of the bill. These are statutory actions a private citizen can bring on behalf of the general public. My colleague from California, Senator Feinstein, expressed specific concern over this provision because she believed it would interfere with an existing California statute permitting such representative actions. This provision has remained out of the bill. It is the second provision that necessitated the rule XIV alternative. This second provision is what we commonly refer to now as the mass actions provision. A mass action is a civil action seeking to try the claims en masse of all plaintiffs and defendants in a single trial, but pursued without the procedural due process prerequisites for litigating such a matter as a class action. Mass actions are used heavily in certain States such as West Virginia and have been used to unfairly consolidate for trial diverse claims of as many as 8,000 plaintiffs from over 35 States against over 250 defendants. These actions are especially problematic because they proceed without satisfying any of the standard class action prerequisites, such as commonality and typicality of claims. Although the original bill contained a provision that defined mass actions to qualify as class actions, my colleague Senator Specter raised a specific concern over the scope of the provision and moved it be stricken. Because the committee didn't have a meaningful opportunity to evaluate the Senator's concerns before markup, I, as chairman, agreed to strike this provision, but only with the understanding that we would modify the provision and replace it before the bill reached the floor, which is exactly what we did. After the extensive post-markup negotiations and other discussions among my staff and the staff of Senators Specter, Feinstein, Kohl, and Grassley, we were able to reach consensus on a revised mass actions provision in early September. Let me stress there are no surprises here on what we were going to do with the mass actions provision. Everybody who appeared that day in the Judiciary Committee markup was aware the bill sponsors would work with the sponsors of the amendment, Senators Specter and Feinstein, to develop compromise language. Indeed, we called specific attention to this understanding in our committee report on S. 274, which has been widely and publicly available since last July. As for using rule XIV, which is an effective rule in the Senate, a rule that can be legitimately used, and has been used in this case, we gave advance notice to our Democratic counterparts, Senators Feinstein and Kohl, over a month ago that there was a possibility we would have to use this procedural device to ensure the operative text reflected the understanding when the bill was reported out of committee. I also understand from my staff that these offices then informed, among others, the ranking member on our committee about the potential use of the rule when we introduced S. 1751 last week. Simply put, we were open and above board. We didn't have to be, but we were. We didn't have to be because the rule is the rule. We are entitled to use it. The Democrats have used it time after time, as have Republicans. There are no surprises here. I was the most shocked to find claims that something somehow or another was askew and not properly handled. Again, that is pure bunk, and everybody knows it. But I suppose when we have television in the Senate, we are going to see that type of argument made from time to time, even though it doesn't hold water and can't stand the light of day. We provided advance notice and opportunity to review the text to our Democratic sponsors and the sponsors of the amendment so they could all verify that no other changes were made. That is good faith, in my view. We gave advance notice of our intended use of this device for a provision we made clear to everyone we intended to modify. So I am particularly baffled as to why the ranking member of our committee is calling this a mystery. This is no mystery. We did exactly what we said we would do when we marked up this bill in committee, and the bill was voted out with a partisan vote of 12 to 7, but, of course, the distinguished Senator from Vermont didn't vote for the bill in committee. That may be what is behind these types of comments. He never has been for this bill. I suspect all is fair in love and war. This being war, they can say whatever they want on the floor of the Senate, even though it is totally wrong. I believe rule XIV is the most appropriate way of handling the unique set of circumstances leading to the revision of the class action provisions, especially in light of the limited number of days remaining in this session. Given the number of pressing appropriations issues facing the Senate in the coming months, I think it makes little sense to waste valuable floor time debating as a separate amendment a provision that the key Republican and Democratic members have already worked out in good faith. It is even more absurd to be forced to debate a motion to proceed to this bill. There is only one reason for that. That is to delay, delay, delay, and hopefully bollix up everything at the end of this session so nothing good gets done. I ask my colleagues to support the motion to proceed to S. 1751, the rule XIV version, the Class Action Fairness Act of 2003. A Senator got on the floor and made a number of what I thought were outrageous comments as well pertaining to this being a special interest piece of legislation. This is a people's bill. The biggest losers under the current system are the people. Lawyers sue companies and negotiate settlements in which they get all the money. So consumers get ripped off twice: Their lawyers rip them off by taking the settlement money that is supposed to go to them, and then they have to pay for the payoff to the lawyers at higher prices. How about tax cuts for the wealthy? That was an argument made yesterday. The class action bill would not protect the wealthy. It is the opponents of the bill who are trying to protect the wealthy--the wealthy trial lawyers in this case. Although not all class action lawyers are to be criticized, some actually are good lawyers who actually do what is right within the law in fair class actions that really are brought to help people. We are talking about the ones who need to be reformed. Some of these wealthy lawyers who need reform amass their riches by ripping off consumers in bad settlements. We have shown that throughout this debate. Senators raised the issue of defective products, protecting gun manufacturers. The only successful class action against gun manufacturers, the only case in which any relief was awarded was in Federal court. That is what we are trying to do here, and they act as if the Federal courts are not capable of handling these cases? This doesn't stop legitimate class actions. It just says there is no longer going to be these phony forum-shopped cases in corrupt jurisdictions where there are corrupt judges and where jurors don't realize they are saddling all of America with these outrageous verdicts that pay off the attorneys but do very little for consumers or for the plaintiffs who are supposedly the real victims. We heard the argument yesterday that Justice Rehnquist is opposed to this bill. Opponents keep saying Chief Justice Rehnquist opposes the bill, but whenever we ask for a citation to that opposition, we get absolutely nothing. They talk about the Judicial Conference letters, but those letters do not express opposition to the bill that was reported out of committee. How about forum shopping? Defendants cannot forum shop. The plaintiff always gets to choose where to file the lawsuit. If they file in State court, they can often choose precisely the judge who will hear the case. All the defendant can do is remove to Federal court where the case will be heard by a randomly selected judge, not a stacked, forum-shopped deal with a corrupt judge or maybe not even a corrupt judge, but one who just believes the plaintiffs should win no matter what the facts are. Again, I think that is corruption. It is nonsense to say defendants can forum shop or that forum shopping is the purpose of this bill. That is nonsense. Yet that is what one of our distinguished Senators was saying yesterday. How about the scalpel argument? Any suggestion that this class action problem is concentrated in a handful of State courts is wrong. It is a problem in many places, and if you fix it in one place, the party moves to some other court in some other town. How about Madison County, IL, by the way? We had the two Senators from Illinois speak: One just found Madison County to be the most circumspect county in the world. The other basically called the judges and the lawyers, many of whom never practiced law in Madison County, people who were abusing the system. He even implied some of them were corrupt. The figures in Madison County do indicate a problem. Look at the dramatic increase in the number of class actions, virtually all of which were nationwide class actions over a short period, an increase from 2 in 1998 up to over 75 last year. Why are all these people, all these attorneys from other States flocking to the middle of nowhere to file lawsuits in which none of the claimants and none of the defendants are from the area? Do we really need to ask why? We know why. Because of corruption--corrupt judges, or should we say misconceived judges, to be nice about it, or judges who always find for the plaintiffs or steer everything in favor of the plaintiffs or always find class actions to exist when they really shouldn't. That is corruption. We hear statistics indicating half of the class actions have been certified, but what the distinguished Senator from Illinois should have said was ``certified so far.'' What I find curious is that the distinguished Senator from Illinois didn't give the number of class actions that were denied. What happens in Madison County is that the case is filed, and when the lawyer decides he wants to put the squeeze on the defendant to settle, he starts moving toward getting a class certified, but sometimes it takes a while. By the way, just moving to get a class certified in Madison County where it is almost granted at will is enough to scare any corporation because once that happens, that corporation is in real trouble, and so are that corporation's employees who are likely to lose their jobs, their income, their health care, and their pensions if the company gets thrown into bankruptcy. We have heard allegations that under the class action bill, a defendant can remove a case at any time, even on the eve of trial. The current removal statute, 28 USC section 1446(b), provides that a case must be removed to Federal court ``within 30 days after the defendant's receipt . . . of a copy of the [complaint] in the action.'' This class action bill would not change that rule. The allegation that a class action bill would allow a case to be removed to Federal court at any time is ridiculous. But that is what we are getting used to from those who argue against this issue. Now why do they do that? Why can they not see these simple, easy to see facts of life? Well, I hate to say it but I think it comes down to the fact these trial lawyers are the biggest hard money funders of many of these people who will vote against this bill. They get whatever they pay for. They can rely on their friends in the Congress to ignore what really should be ethical and good changes in the law and to stand in the way of those changes. That is what is happening here. That is taking the sugar coat off, but that is what is happening. The fact is that we have people in this body who will vote for the trial lawyers no matter how wrong they may be. Now, when I say trial lawyers, I am speaking about this select group of trial lawyers who really are giving the legal profession a bad name, who are in it for the money so they can support their own political candidates, live in high style, be influential in their respective communities, most all of which are outside of Madison County, by the way, and who can just about afford to do anything they want to do and are used to doing anything they want to do. I happen to know a lot of good trial lawyers who are honest and decent, who really fight hard for their plaintiffs, for people who were wronged, for victims, and who are disgusted with these trial lawyers who are taking procedural advantage, monetary advantage, of forum shopping in this country. It is coming to the point where even the American Trial Lawyers Association is starting to get split on these types of issues because they realize that some of these people are giving trial lawyers who are good, honest, decent, hard-working trial lawyers a bad name, because they are getting lumped into the term ``trial lawyers'' all the time with these people who are bad actors, who are in it for the money. Now, they paint a very big picture about how they are in it for the little consumers, but look at the coupon settlements. Look at the amount of money they are getting in fees. Look at the way the consumers have been ripped off. Look at the cost to society. Look at the companies that are in shambles and can no longer employ people. Look at the unfairness of forum shopping. Look at the unfairness of corruption. I commend trial lawyers who are honest and decent and who bring decent class actions. They know they can win in Federal court just as much as they can win in State court, but they also know they cannot forum shop as well in Federal courts. Now, one can still forum shop but not nearly like they can in a number of jurisdictions in this country in certain counties where, as I say, judges are owned lock, stock, and barrel by various political interests. Well, I have kept us long enough, but this is an important bill and to filibuster even the motion to proceed to the bill, at this late date, leads only to one conclusion and that is unfairness, delay, win at any cost, fear to debate this bill straight up and down, fear to have votes straight up and down. The reason they are afraid is because they know if Senators were permitted to vote their consciences this bill would pass overwhelmingly, if it were not for the untold influence of big class action money. I yield the floor.

Mr. HATCH. No question that we usually do not have a filibuster on a motion to proceed, because if any of my colleagues are going to filibuster, they should filibuster the bill. By filibustering the motion to proceed, they can delay a vote on that for 3 days. Then they can filibuster the bill and delay that for another 3 days, which eats up 6 days at a crucial time of the year when we are trying to do all of the appropriations bills, a prescription drug benefit and Medicare reform, asbestos reform, judges, a whole raft of other very important issues, including the Energy bill. So by eating up all this time it makes it difficult to pass any of these matters, and it makes one wonder what in the world is behind all of this.

Mr. HATCH. It was a bipartisan supported bill. Democrats and Republicans support this bill. It will pass if Senators are permitted to vote their consciences and are permitted to vote up or down without the phony delays of a filibuster, especially a filibuster on the motion to proceed. By the way, rule XIV is an effective rule of the Senate. Both sides have used that in order to expedite consideration of matters and everybody understands that, and everybody can then debate.

Mr. HATCH

Mr. HATCH. Mr. President, I note that Senator Cornyn is here. I ask unanimous consent he be permitted to speak, and then I be granted the floor thereafter.

Mr. HATCH. Mr. President, I ask unanimous consent that Senator Breaux be recognized and then I be recognized immediately following his remarks.

Mr. HATCH. Mr. President, I thank my colleague for his kind remarks. We will certainly look at whatever he has to offer in this matter. We will keep an open mind and see if we can get together. I rise in strong support of S. 1751, Class Action Fairness Act of 2003. It used to be S. 274, but now it is renumbered to S. 1751. This bill represents a carefully balanced legislative solution in response to the widespread abuse of the class action lawsuits in our State courts. Over the past decade, it has become painfully obvious that class action abuses have reached epidemic proportions. What began as occasional outrageous class action settlements, drawing light humor, has now become a routine occurrence that is just not funny anymore. It has become equally clear that the true victims of this epidemic have been every-day consumers who represent the silent majority of unnamed class members throughout the country. It has become too common where plaintiff class members are not adequately informed of their rights or the terms and practical implications of a proposed class action settlement. Making matters worse, judges too often approve settlements that primarily benefit class counsel, the attorneys, rather than the class members or the victims. That is turning the law on its head. In the coming days, we will hear numerous examples of egregious State court settlements, where class members habitually receive little or nothing of value, while their attorneys receive millions of dollars in fees. The cases are numerous, but just too extensive to list. To put these settlements in perspective, allow me to share a recent class action settlement that one of my own staff members recently actually received in the mail. This settlement notice comes from a State court in Jefferson County, TX. It involves the settlement of a class action lawsuit brought on behalf of purchasers of Bridgestone and Firestone tires. This technical legal document informs my staffer--an apparent class member by virtue of owning a set of Firestone tires--of a proposed class action lawsuit settlement that will award the lawyers $19 million in fees and costs. That is not a bad payday for lawyers when compared to what the clients get: a promise from defendants that they will make safer tires and initiate a safety program. It strikes me these class members are getting a so-called benefit they should be getting, anyway. It seems to me they should try to have safer tires and the benefit of a safety program. But the laughable settlement terms don't end there. Unlike the unnamed class members who do not stand to gain a single penny, those lucky enough to be named plaintiffs get to walk away with a $2,500 cash bounty. This proposed settlement, which will likely be approved by the State court, represents everything wrong with the class action system today and underscores the importance of reform--$19 million, where no one really gets any benefits except a few they choose to be named plaintiffs, who get $2,500. The attorneys walk off wealthy, happy, fat, and laughing. The need to reform our class action system is not a new issue to the Senate. The Judiciary Committee conducted hearings in the 105th, 106th, and 107th Congresses, reporting a similar bill out of committee in the 106th Congress on a bipartisan basis. We have received mountains of evidence demonstrating the drastically increasing injustices caused by class action abuses. After working extensively with numerous legislative proposals throughout the various Congresses, the committee reported a bill--again with bipartisan support--which I believe provides a measured response to the underlying class action problem. This being said, I would not be surprised to hear somebody deny the existence of any problem at all. Others will try to confuse the issue with dubious claims that proposed reforms would somehow disadvantage victims with legitimate claims or further worsen class action abuses. Others may even contend past legislative reforms have contributed to recent financial debacles and that the proposed reforms will encourage more. Rest assured, Mr. President, such claims are nothing more than red herrings intended to divert the debate from the real issues. In this regard, let me emphasize a few points regarding this bill. First, this bill doesn't eliminate all State court class action litigation. Class action suits brought in State courts have proven in many contexts to be an effective and desirable tool for protecting consumer interests and rights. Nor do the reforms we will discuss today in any way diminish the rights or practical ability of victims to band together to pursue claims against large corporations. In fact, we have included several consumer protection provisions in our legislation that I believe will substantially improve plaintiffs' chances of achieving a fair result in any settlement proposal. There are three key components to our legislation. First, the bill implements consumer protections against abusive settlements by: No. 1, requiring simplified notices that explain to class members the terms of proposed class action settlements and their rights with respect to the proposed settlement in ``plain English.'' No. 2, enhancing judicial scrutiny of the abhorrent coupon settlements. No. 3, providing a standard for judicial approval of settlements that would result in a net monetary loss to plaintiffs. No. 4, prohibiting bounties to class representatives. No. 5, prohibiting settlements that favor class members based upon geographic proximity to the courthouse. And No. 6, requiring notice of class action settlements be sent to appropriate State and Federal authorities to provide them with sufficient information to determine whether the settlement is in the best interest of the citizens they represent. Second, the bill corrects a flaw in the current diversity jurisdiction statute that now prevents most interstate class actions from being adjudicated in Federal courts. Specifically, the Class Action Fairness Act amends the diversity-of-citizenship jurisdiction statute to allow larger interstate class actions to be adjudicated in Federal court by granting original jurisdiction in class actions where there is ``minimal diversity'' and the aggregate amount in controversy among all class members exceeds $5 million. The bill balances the State's interest in local disputes by providing that class actions filed in the home State of the primary defendants would remain in State court subject to a triple-tiered formula that looks at the composition of the plaintiffs' class membership. This formula has become known as the Feinstein Compromise. To enforce the jurisdictional changes, the bill modifies the Federal removal statutes to ensure that qualifying interstate class actions initially brought in State courts may be heard by Federal courts if any of the real parties in interest so desire. Although some critics have argued this amendment to diversity jurisdiction somehow violates the principles of federalism or is inconsistent with the Constitution, I think their concerns miss wide of their mark. I fully agree with Mr. Walter Dellinger, former Solicitor General, who previously testified at one of our Judiciary Committee hearings that it is ``difficult to understand any objection to the goal of bringing to the Federal court cases of genuine national importance that fall clearly within the jurisdiction conferred on those courts by article III of the Constitution.'' Finally, I wish to express my appreciation to the many individuals who have shared with me the details of their experiences of class action litigation. In particular, I am grateful to those victims of various abuses of the current system who have come forward and told their stories in the hope that something positive might come out of their terrible experiences. Among those who have come forward is Irene Taylor of Tyler, TX, who was bilked out of approximately $20,000 in a telemarketing scam that defrauded senior citizens out of more than $200 million. In a class action brought in Madison County, IL, a notorious county for these cases, a forum shop county where attorneys forum shop to get these big verdicts and these favorable court rulings, the attorneys purportedly representing Mrs. Taylor negotiated a proposed settlement which will exclude her from any recovery whatsoever. Martha Preston of Baraboo, WI, provides another excellent example. Ms. Preston was involved in the famous BancBoston case brought in Alabama State court which involved the bank's alleged failure to post interest to mortgage escrow accounts in a prompt manner. Although Ms. Preston received a settlement of about $4, approximately $95 was deducted from her account to help pay the class action counsel's legal fees of $8.5 million. Notably, Ms. Preston testified before my committee 5 years ago asking us to stop these abusive class action lawsuits, but it appears that at least thus far her plea has not been heard. So I urge my colleagues to support this modest effort to reform the abuses in the current system, abuses that are actually hurting those the system is supposed to help. Mr. President, I wish to take a minute or two with some charts to show how bad the system is. Under current law, in many State class action lawsuits, all of the money--every stinkin' dime--goes to the attorneys. I am not against attorneys. I am one myself. I think they deserve to be paid reasonable fees, but in these class action suits every bit of the money goes to attorneys. In the BancBoston case, lawyers got $8.5 million. In the case I just mentioned, some of the plaintiffs had to pay the attorneys additional moneys, getting nothing out of it, but the attorneys got $8.5 million. I don't know, but that just smells to me a little bit. Maybe I am just too critical, but when the attorneys who represent the clients get $8.5 million and the clients have to again pay the attorneys even more, there is something wrong with that. Take the second one, the Blockbuster case. The lawyers got $9.25 million. What did the plaintiffs get? One dollar off their next movie. Come on. Doesn't that seem a little disproportionate to you, $9.25 million for attorneys and $1 for the client? Now, true, there are many clients, but it doesn't seem too right to me. Take the frequent flier case. The lawyers got $25 million. The plaintiffs got a coupon worth $25 to $75. Again, now I understand in that particular case--I may have it mixed up with another case--after getting a huge settlement, they then turned around and sued the plaintiffs for more money. Take the Coca Cola sweetener case. The lawyers got $1.5 million and the plaintiffs get a 50-cent, a 50-penny coupon. I don't know about you, but that also smells to me. Again, I am not against attorneys getting reasonable fees, but it seems to me these are scams more than anything else. They will say they are correcting societal wrongs, but why then do they get all the money and the plaintiffs who have to put their names on the line get relatively nothing? Talk about class action abuse. Let's go to that Blockbuster Video case. After being named in 23 class action lawsuits, Blockbuster agreed to provide class members with only $1-off coupons, ``buy one get one free'' coupons, and free Blockbuster favorites video rentals . . . while attorneys are reported to receive around $9.2 million in fees. That is according to the RockyMountainNews.com. It just does not seem right. But that is the way it is. The class action abuse I mentioned in the BancBoston settlement over disputed accounting practices produced $8.5 million in attorneys fees and actually cost class members around $80 each. Later plaintiffs' attorneys in this case also sued the class members--the individuals who they brought the suit for--they sued them for an additional $25 million. There is something wrong with that. I don't care what anybody says. Take this one. This is a class action abuse, something this bill would correct. There was a settlement with Cheerios over food additives that produced $2 million in attorneys fees while class members only received coupons for more Cheerios, something they complained about to begin with. I happen to like Cheerios. I have nothing against Cheerios. I eat them. But why would attorneys get $2 million while class members get a coupon for another box of Cheerios? It does not seem right to me. As my colleagues can see, this is a policy that is being abused, and we are only mentioning a few of the abuses. I have no problems with legitimate, honest class action suits where attorneys are acting in the best interests of their clients. But I do have problems with some of these phony approaches that it seems to me are blatantly wrong on their face, where the attorneys get huge fees and the class members get virtually nothing. That is what is happening in these particular cases. This bill will correct some of those ills without taking away the right to pursue class actions, and in certain cases they will have to be pursued in Federal court. I remember when I practiced law--that was a long time ago, before I became a Senator--we would die to get into Federal court because everybody knew it was a more important case, that the Federal courts handle more important cases, people thought, and still do think that. For some reason, these class action lawyers do not want to go to Federal courts. Now, why is that? Because they can forum shop into Madison County, IL, where they get judges and jurors to hammer the defendants with outrageous verdicts that benefit basically only the attorneys. Now, that is wrong. There are at least five States in this Nation where they forum shop class action cases. Grisham wrote a book about this. He is a great storyteller, but I can almost name every fictionalized attorney in that book. Some of them are great lawyers. Some of them are leaders in bringing litigation to correct societal wrongs. Some of them deserve credit for doing that. But this is a system that is out of control. This bill will help to straighten it out, and I think resuscitate the respect for my profession because attorneys who bring these actions will have to do so pursuant to fairness and rules that make sense rather than forum shop to areas where they can get big verdicts and big legal fees but do injustice. Now I will speak about ``Let's Play Class Action Monopoly.'' Go. Come up with an idea for a lawsuit, it states on the top of the board. Find a plaintiff to pay off, or a set of plaintiffs. Make allegations. You do not need any proof to make allegations. Get out of rule 23 free. So you get out of the rule. Convince your magnet State court judge to certify the class, which is also another scam in some of these jurisdictions where the judges do not seem to appreciate the law or abide by the law. File copycat lawsuits in State courts all over the country. Sue as many companies in as many States as possible even if they have no connection to the State. It states in the bottom right: Who gets the money? Go left on the bottom. Columbia House case, $5 million for lawyers, discount coupons for plaintiffs; Blockbuster case, $9.25 million for lawyers, free movie coupons for plaintiffs, and not too many of them; BancBoston case, $8.5 million for lawyers. Some plaintiffs pay more fees rather than get anything out of it. So in the bottom left, what happens to me? Your employer takes a hit, maybe lays you off. Next one, your health and car insurance premiums go up. The lawyers win. You lose. I have tried cases on both sides of the table. I started out as a defense lawyer, and I defended these types of cases. Then in the latter years of my practice, I became primarily a plaintiff's lawyer where I brought cases for and on behalf of individuals who were injured. I brought cases for injured people and got them big verdicts they deserved. They walked away with the bulk of the money, which is only right. Yes, they were happy to pay my fees because they always came out well. In some of these cases, this is a scam. Now, there are legitimate class action cases, but there are many of them out there today that are not. It is a disgrace to our profession. This bill will clarify and straighten out some of the wrongs that are going on. It is high time we do this. The only reason we might not do it is because there is a filibuster on the motion to proceed. Normally, we never have a filibuster on a motion to proceed. Normally, we just go to the bill, and then if somebody wants to filibuster, they filibuster the bill, especially if they have the votes. Why not? But a filibuster is happening even on the motion to proceed. Why is that? Why a filibuster to begin with, on something that really makes sense? Because there are trial lawyers in this country who pay big premiums. That is why they make a lot of this money, so they can pay big premium dollars to politicians who will vote for them no matter what the rules are. I want to make it clear, not all class action lawyers are bad. Some of them do what is right, and they are not afraid to go to Federal court. They know they can get their big verdicts in Federal courts as well because they have cases where they should get verdicts. When we have these forum shop cases, something is wrong. Why is it that we have to have a filibuster on the motion to proceed, or require a cloture vote on the motion to proceed to a bill? Why do they not just let us bring the bill up, and then if they want to filibuster, filibuster the bill? Because we are at the end of a session where every minute counts, every second counts, every hour counts, every day counts. By delaying, those who do not want this bill can help their trial lawyer friends who are very involved in the political process because they have millions of dollars that, in many cases, they do not deserve; that they can give for political purposes to keep these types of injustices going. That is why this bill is important. That is why there is a huge bipartisan vote for this bill. The question is: Can we get 60 votes? I personally believe we can. I believe it would be a disgrace for this body to not overwhelmingly vote for this bill. It is a bipartisan bill. It has been well thought out. We have worked hard to accommodate various members on both sides of the aisle. I think it will redeem our profession from those fly-by-nights who are just in it for the money, without regard to helping their real clients. I would like to see that happen because the law profession is a great profession, but in recent years it has been steadily eroded by people who are not doing what is right in the profession. These are just some egregious cases that are all too often happening because some lawyers do not do what is right. I am for the good lawyers. But I am against those who are just in it for the money and not really helping their clients. This bill will not stop them from bringing litigation, but it will even up the situation so at least there will not be the same amount of forum shopping, and better, more honest judges will be deciding these cases along with better and more honest juries. I suggest the absence of a quorum.