Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I rise to join in Senator Sessions' comments earlier today regarding the departure of Ed Haden, a staffer who has given a great deal to the Judiciary Committee during the past three years. Ed has made his influence felt, and he will be missed. Ed came to the Judiciary Committee in 1999 to work as my counsel in the Nominations and Constitutional Law unit. He served me admirably in that position. The next year, Ed became chief counsel to Senator Sessions' subcommittee, and he continued to contribute substantively to many issues handled by the full committee. Ed's reputation as a smart, creative, and effective lawyer is well-earned. As Senator Sessions said, the Senate's loss is someone else's gain. Ed will be joining the Birmingham, AL, law firm of Balch & Bingham, which will no doubt benefit greatly from the association. I want my colleagues to know that, as Senator Schumer said in a recent Judiciary meeting, I have found Ed Haden to represent the best of what we are about. He is honorable and hard-working and someone who can be taken at his word. I thank Ed for his great service to me and the Judiciary Committee, and I wish him all the best in his future endeavors.

Mr. HATCH

Mr. HATCH. Mr. President, I thank my colleague for his kind remarks about our great friend, Senator Thurmond. I have been around here 26 years, and Senator Thurmond was the leader on the Judiciary Committee for most of that time. He has been a tremendous mentor and adviser to me. He is a wonderful man. He has gone through so many changes in his life, and he has had many different experiences in his life. He is truly a war hero and truly one of the people I think everybody in this body has to admire. There is no question about it. He is one of the all-time great Senators. He has represented the State of South Carolina for all of these years very well. I can remember traveling through the State with him. Just about everybody knew Strom, and he knew just about everybody in his State. It was absolutely amazing to me that a person could be so revered as Strom Thurmond was--and he deserved it. He is not only a great man, but he has done great things in his life. He has done great things having come from the Old South, which has been highly criticized by many of us in this Chamber. But let me just take a moment to pay tribute to my good friend and our distinguished colleague on this committee, the senior Senator from South Carolina, Strom Thurmond. From the moment Strom thurmond set foot in the Senate Chamber in 1954, he has been setting records. He was the only person ever elected to the U.S. Senate on a write-in-vote. That is a reworkable achievement. He is the longest serving Senator in the history of the U.S. Senate. As he approaches his 100th birthday, he is also the oldest serving Senator. Many of my colleagues will recall the momentous occasion in September of 1998 when he cast his 15,000th vote in the Senate. With these and so many other accomplishments over the years, he has appropriately been referred to as ``an institution within an institution.'' In 1902, the year Strom Thurmond was born, life expectancy was 51 years and today --the last time I heard--it is 77 years. But I think it is going up regularly. Strom continues to prove that, by any measure, he is anything but average. He has seen so much in his life. To provide some context, let me point out that, since his birth, Oklahoma, New Mexico, Arizona, Alaska and Hawaii gained Statehood, and eleven amendments were added to the Constitution. The technological advancements he has witnessed, from the automobile to the airplane to the Internet, literally span a century of progress. Conveniences we have come to take for granted today were not always part of Strom Thurmond's world. Perhaps this explains why during our Judiciary committee hearings, we have heard him asking witnesses who were too far away from the microphone to ``please speak into the machine.'' The story of his remarkable political career truly could fill several volumes. It began with a win in 1928 for the Edgefield County Superintendent of Schools. Eighteen years later, he was Governor of South Carolina. Strom was even a Presidential candidate in 1948, running on the `Dixiecrat' ticket against Democrat Harry Truman. I must admit that he has come a long way in his political career, given that he originally came to the Senate as a Democrat. I am happy to say that wisdom came within a few short years when Strom saw the light and joined the Republican Party. That was supposed to be humorous. But I did not hear any laughter. When I first arrived in the Senate in January of 1977, he was my mentor. As my senior on the Judiciary committee, it was Strom Thurmond who helped me find my way and learn how the committee functioned. He has not only been a respected colleague, but a personal friend, ever since. During his tenure as Chairman of the Judiciary committee, Strom Thurmond left an indelible mark on the committee and the laws that came through it. He became known and respected for many fine qualities and positions--his devotion to the Constitution, his toughness on crime, his sense of fairness. He is also famous for his incredible grip. Many of us have experienced Strom Thurmond holding our arm tightly as he explains a viewpoint and asks for our support. I might add that this can be a very effective approach. Strom is also known to have a kind word or greeting for everyone who comes his way, and for being extremely good to his staff--and to all the workers here on Capitol Hill. No question. He has gone out of his way. I might add that I have seen him operate in his own home State and other places. I have seen him. He has operated in the most even- mannered, decent, honorable way to people regardless of where they came from--regardless of their color, their religion, their country of origin, or any other distinguishing characteristic. Strom has always been good to everybody. Despite his power and influence, he has never forgotten the importance of small acts of kindness. Strom Thurmond is truly a legend--someone to whom the people of South Carolina owe an enormous debt of gratitude for all his years of service. Clearly, the people of South Carolina recognize the sacrifices he has made and are grateful for all he has done for them. In fact, you cannot mention the name Strom Thurmond in South Carolina without the audience bursting into spontaneous applause. He truly is an American political icon. Abraham Lincoln once said that: The better part of one's life consists of friendships. With a friend like Strom Thurmond, this sentiment couldn't be more true. I am a great admirer of Strom Thurmond, and, as everyone around here knows, I am proud to call him my friend. One final note about Strom Thurmond: He is a great patriot. I am grateful for his work with me over the years in support of a Constitutional Flag Amendment. A decorated veteran of World War II who fought at Normandy on D-Day, Strom Thurmond loves this country. He loves it very much. Let me just say this country loves him, too. Strom Thurmond is a wonderful father. He has raised his children to be very fine people. And they love him as well. When his daughter died, it was one of the most tragic things I have ever seen. It was the first and only time I ever saw Strom Thurmond shed tears. He is such a strong, resilient, patriotic leader. But on that day, at that funeral, Strom Thurmond broke down, which showed how much he loved his daughter and his family. I know how much he has. That is the mark of a great man. I am glad today, or at least by tomorrow, hopefully, this body will be able to give Strom Thurmond the only thing he has asked of us, as a last request, in return for his service: the confirmation of his former chief counsel, Judge Dennis Shedd, who himself is a wonderful, decent man. With that, Mr. President, I yield the floor.

Mr. HATCH. I thank my colleague.

Mr. HATCH

Mr. HATCH. Mr. President, for the past several decades, serving one of the United States Senate's most legendary figures--Senator Strom Thurmond of South Carolina--has been Robert J. Short. I rise today to pay tribute to the man we in the Senate fondly know as ``Duke Short.'' Duke is to be commended for his fine work and years of dedication to our Country. When I first arrived in Washington, DC., in January of 1977, Senator Thurmond was my senior on the Senate Judiciary Committee. As I settled in to my new role on the Judiciary Committee, I came to know and respect Duke, a bright and eager individual who was working at the time as Chief Investigator on the Committee. Duke had first come to work in the Senate in 1974, and until 1976, he served as a Senior Investigator on the Senate Subcommittee on Internal Security. From 1976-1989, he was the Chief Investigator on the Senate Committee on the Judiciary. He has served as Chief of Staff and Administrative Assistant to President Pro Tempore Emeritus Senator Strom Thurmond since 1989. Throughout the course of Duke's work in the Senate, he has assisted in the confirmations of literally hundreds of district and circuit court nominees, and of every sitting Supreme Court Justice. He played a key role in assisting the Judiciary Committee in its inquiry in the 1960's into motorcycle gang violence, as well as many other important matters. He has developed a remarkable wealth of knowledge about the Senate as an institution, and is widely respected by Senators past and present on both sides of the aisle. Duke has been recognized throughout his distinguished career with many prestigious awards, too numerable to mention here, but most recently including a Reserve Officers Association Appreciation Award in 2000, an FBI Director's Appreciation Award and the Order of the Palmetto--the State of South Carolina's highest award, in 2001. This year, Duke received the ACA's Third Annual Patients' Champion Award. Duke's career has been characterized by service to our great Country, not only in his work for the Senate for nearly thirty years, but in his earlier service in the U.S. Army with the 82nd Airborne Division, and as a special agent in the Intelligence Division of the Department of the Treasury. Duke Short has served Senator Thurmond, South Carolinians, and his country well, with the spirit and endless dedication of a true patriot. We will sorely miss him in the United States Senate and wish him all the best in his retirement. Tribute to Strom Thurmond

Mr. HATCH

Mr. HATCH. Mr. President, it is my high honor and privilege to speak on the confirmation of Professor Michael McConnell to the Tenth Circuit Court of Appeals. Professor McConnell is a Utahn, a scholar of the highest talent, and a man of profound integrity and judicial temperament. Professor McConnell holds the prestigious Presidential Professorship at the University of Utah College of Law in Salt Lake City. He began his legal career at the University of Chicago Law School, where he was Comment Editor of the Law Review and graduated Order of the Coif. Thereafter he served as a law clerk for two of the leading liberal jurists of the 20th century: Supreme Court Justice William J. Brennan, Jr. and D.C. Court of Appeals Judge J. Skelly Wright. After completing those clerkships, Mike became Assistant General Counsel of the Office of Management and Budget and then served as Assistant to the Solicitor General. He then joined the faculty of the University of Chicago Law School, where he was awarded tenure and later the William B. Graham Professorship. In addition to his academic credentials, Professor McConnell is an able and experienced appellate lawyer. He has argued eleven cases before the United States Supreme Court--and won nine of them. In fact, the Los Angeles Daily Journal named one of his presentations to the Supreme Court ``best oral argument'' of the year. His clients include a wide range of entities: Fortune 500 companies such as NBC and Ameritech; organizations such as the United States Catholic Conference; municipal authorities including the New York Metropolitan Transit Authority; and many individuals. This combination of intelligence and experience was very likely the reason that the American Bar Association rated Professor McConnell unanimously ``well qualified''--its highest possible rating. Now, Mr. President, I imagine you have heard some of the attacks waged against these fine nominees by the usual suspects--that group of Washington-based special interest lobbyists who make their living trying to thwart President Bush's judges. Those groups are trying to make believe that Professor McConnell is out of the mainstream of American politics. Well, let me set the record strait. I'll mention just a few of the positions Professor McConnell has taken that prove he is an independent-minded thinker who calls things as he sees them, and does not follow anyone else's political prescription. Professor McConnell represented, without charge, three former Democratic Attorneys General in opposition to an order of the first President Bush; publicly opposed impeachment of President Clinton; urged the confirmation of several of President Clinton's judicial nominations; testified against a school prayer amendment; worked, without charge, on a lawsuit representing both People for the American Way and Americans United for the Separation of Church and State; has been described by Supreme Court Justice Antonin Scalia as ``the most prominent scholarly critic'' of Scalia's approach to the free exercise clause; and has served as co- chair--together with a former ACLU president and a former American Bar Association president--of an organization whose purpose is to oppose MY proposed constitutional amendment to protect the American flag from desecration. So you see, Mr. President, the idea that McConnell is in lock-step with the Republican party is absolutely untrue. Rather than credit all of the unsupported attacks with responses, I instead would like to tell you a couple of things the ARE true about Professor McConnell. First, Professor McConnell is widely regarded as modern America's most persuasive advocate for the idea that our government should ensure every citizen's right to worship--or not worship--in his or her preferred manner. Through his scholarship and advocacy in court, he has stood up for the rights of all religious people--including members of some politically out-of-favor faiths--to worship free of government restriction or intrusion. Many Americans believe that the freedom to exercise their own religion is the most profound and important idea on which this country was founded. Before Professor McConnell began his prodigious scholarship in the area of the First Amendment's religion clauses, the idea was taking root that the government must disfavor religion in its policies. That is, judges and scholars believed that all groups must be treated equally except religions, which must be excluded entirely from any government program or policy. Professor McConnell's scholarship served as a dramatic wake-up call. He researched the Founders' writing and presented with illuminating clarity that the point of free exercise is for government to remain neutral as between religions, and must accommodate religious activity where feasible. He demonstrated there was no basis in the founding for the view that our government must be anti-religion. The persuasiveness of his writing reawakened American legal scholars and judges to the Founders' view that the First Amendment's purpose is to protect religion from government, not the other way around. His work has helped reinvigorate the healthy and dynamic pluralism of religion that has allowed all faiths to flourish in this promised land, the most religiously tolerant nation in human history. McConnell's views defy political pigeonholing. Although he has generally sided with the so-called liberal wing of the Court on questions of Free Exercise of Religion, McConnell's view of Establishment of Religion is that religious perspectives should be given equal but not favored treatment in the public sphere--a view that has led him to testify against a school prayer amendment, while supporting the rights of religious citizens and groups to receive access to public resources on an equal basis. Few people in modern America have contributed more to their area of expertise than Professor McConnell. He has written over 50 articles in professional journals and books. He has delivered hundreds of lectures and penned many op-ed pieces. He has contributed an immeasurable amount to the discourse of legal ideas. As Professor Laurence Tribe wrote to the Judiciary Committee, ``McConnell is among the nation's most distinguished constitutional scholars and a fine teacher.'' Tribe further explained that he and McConnell ``share a commitment to principled legal interpretation and to a broadly civil libertarian constitutional framework.'' The significance of McConnell's contributions to the legal profession in part explains why 304 professors--ranging from conservative to liberal to very liberal--have signed a single letter urging us to confirm McConnell's nomination. Mr. President, When was the last time that 304 professors agreed on anything? Professor McConnell's peers consider him one of the nation's foremost constitutional scholars and appellate advocates and as a person with a reputation for open-minded fairness. Because of his outstanding reputation for scholarship, the attacks on Professor McConnell have not focused so much on his judicial abilities, but on his personal beliefs. I think this is wrong. All Americans have the right to think their own thoughts and believe their own beliefs. That right should apply as much to the Americans who don robes in service of the Federal Judiciary as to any other citizen. One of the Senate's most important roles in exercising advice and consent on judicial nominees is to make sure that they are free from any bias--whether political, religious, personal or otherwise--that would endanger their ability to follow the law as written by the legislature and interpreted by higher courts. No one wants a judge who plays legislator from the bench. We want and expect judges who know their limited role and will uphold the law regardless of their personal views. And as long as a judge is willing to do that, any other litmus test on their personal views is contrary to our constitutional responsibility, and an invasion into the freedom of conscience. I am concerned that some who are involved in the judicial confirmation process are pursuing a course that endangers the freedom of conscience for the Americans who serve on our courts. This is not only a personal offense against nominees who are dragged through the mud or even rejected for their private, personal opinions, it is also an offense against the citizens of this great country, who rely on our federal judges to enforce our many rights and liberties. The diversity of backgrounds and points of view are often the stitches holding together the fabric of our freedoms. If I may be blunt about this, an impression has been created this year that there are some in the Senate who are attempting to impose a litmus test on the issue of abortion. No one should stand for this--not even people who are pro-choice as a matter of public policy. In fact, people who are pro-choice should be especially reluctant to establish a precedent that would allow the Senate to select judges according to their personal views rather than their willingness to follow and enforce established legal precedents. Pro-choice activists have as much to gain from the triumph of precedent over person view as anyone else. The fact that most people who are pro-choice hold their position as a matter of political viewpoint or ideology. They do so in good conscience no doubt, and I respect that. But the great majority of people who are pro-life come to their positions as a result of their personal religious convictions. It is one thing to ensure that judicial nominees pledge to follow the law--we must do that--but quite another to require nominees to have a particular private view. Enforcing such a test would not only destroy the freedom of conscience, but also would exclude from our judiciary a large number of people of religious conviction who are prepared to follow the law. Now, Professor McConnell has written about abortion, and it is very important for us not to violate his freedom of conscience while exploring his views. The most important thing he has written on this topic, for the Senate's purposes, is that U.S. Supreme Court precedent setting forth the basic abortion right is settled and secure. Indeed, he believes that lower court judges have a clear duty to follow and apply that case law, and he will do just that if confirmed. Beyond that, Professor McConnell's scholarship on the subject defies standard stereotypes. His writings have focused on two questions. First is the methodology or legitimacy of the Court's reasoning in Roe v. Wade. Like many constitutional scholars--including prominent supporters of abortion rights such as Justice Ruth Bader Ginsberg--Professor McConnell has written that the Court in Roe overstepped the bounds of proper judicial decision making and has argued that, when facing other issues of deep moral disagreement--for example, assisted suicide--the courts should not constitute their judgment for that of the legislatures, particularly where there is a broad consensus among the states regarding the proper role for regulation. The second area he has addressed is the possibility of middle-ground approaches to abortion that would find support even from many pro- choice advocates--dealing with such problems as inadequate counseling and support for troubled pregnant women. He has been critical of the extremes on both sides of the questions surrounding abortion, and has argued that one result of the constitutionalization of abortion law has been that is has prevented political leaders from exploring middle- ground approaches. Professor McConnell has also written in defense of the free-speech rights of abortion protestors. The fact is that, despite some attempts to confuse this issue, there is nothing in Professor McConnell's writings that should cause any doubt that Professor McConnell is committed to the ideas of stare decisis and controlling legal precedent. To look beyond that belief, to probe his personal views based on religious conviction, is not only to miss the point of our job but also to jeopardize the freedom of conscience of those who serve our country as members of the judiciary. Many people across the political spectrum know that Professor McConnell will obey precedent even when it is at odds with his own views. That explains why Professor McConnell's nomination has been praised by a number of people who disagree with some of his opinions, including former Clinton administration officials Acting Solicitor General Walter Dellinger, Deputy White House Counsel William Marshall, Domestic Policy Advisors Bill Galston and Elena Kagan, and Associate Attorney General John Schmidt. Listen to part of a letter I received from the Legal Director of the ACLU chapter in Utah. He wrote--in his personal capacity--to endorse Professor McConnell ``enthusiastically and without qualification,'' saying that ``there can be no doubt that [lawyers who appear before him] will receive a fair and impartial hearing, thoughtful scrutiny and careful consideration toward a decision that will be based solely on the merits and not on any predetermined ideological or political agenda.'' Professor McConnell is immune to any political litmus test because he has a solid bipartisan reputation for integrity and fairness. He is committed to the rule of law and to the ideal of nonpartisan judging. He is known for his principled defense of a limited and restrained role for the judiciary in our constitutional system. He has argued for constitutional interpretation based on constitutional text, original understanding, historical experience, and precedent. He has criticized scholars and judges of both the right and the left for advocating interpretation based on the judge's own political or moral views. He has advocated a major role for Congress in defining and protecting civil rights and has criticized the Supreme Court's decisions limiting such measures to mere enforcement of the Supreme Court's own interpretations. Civil rights groups should take special note of his defense of broad congressional power under Section Five of the Fourteenth Amendment. In conclusion, Mr. President, Professor McConnell is one of the very best people ever nominated to be a judge. I am very pleased that the Senate confirmed him today. He will be a great judge. Thank you, Mr. President. I yield the floor.

Mr. HATCH

Mr. HATCH. Madam President, I am particularly pleased today to speak in support of the confirmation of John M. Rogers to the U.S. Court of Appeals for the Sixth Circuit. As we know, there is a judicial vacancy crisis in the Sixth Circuit and the addition of Mr. Rogers to the bench represents a positive step in alleviating that regrettable situation. John M. Rogers is currently the Thomas P. Lewis Professor at the University of Kentucky College of Law, where he has taught since 1978. He is a Phi Beta Kappa graduate of Stanford University and an Order of the Coif graduate of the University of Michigan Law School, where he served on the Michigan Law Review. He is an expert in international, administrative, and constitutional law and a respected teacher and scholar. Prior to teaching, Professor Rogers was an appellate attorney in the Civil Division of the United States Department of Justice. This work, and a later stint at DOJ, led to his being awarded a Special Commendation for Outstanding Service to the Civil Division of the U.S. Department of Justice. Rogers has twice been a Fulbright Senior Lecturer in the People's Republic of China, and is a member of the Council on Foreign Relations. He has also served this country for 28 years as a reserve officer in the U.S. Army Reserve and the Kentucky Army National Guard. All of these accomplishments and contributions explain why the American Bar Association has rated Professor Rogers unanimously qualified. I agree with that judgment, I applaud President Bush for making this nomination, and I urge all of my colleagues to confirm Professor Rogers to the Sixth Circuit. I am confident he will serve with distinction as a Federal judge. nominations of u.s. district court nominees

Mr. HATCH. Madam President, I rise in support of the fine group of district court nominees who are being confirmed tonight. I have reviewed their individual records and I find all of them to be excellent choices for the Federal bench. Permit me a moment to highlight the merits of each nominee. U.S. Magistrate Judge Stanley R. Chesler, our nominee to the District Court for the District of New Jersey, received his undergraduate degree from Harpur College. He then went on to do graduate work at Brooklyn College where he accumulated 30 graduate credits in education. While working as teacher during the day, he graduated magna cum laude and first in his class from St. John's University School of Law, receiving no less then 12 American Jurisprudence Awards and consistently making the dean's list. Upon graduation, Magistrate Judge Chesler joined the Bronx District Attorney's Office and specialized in prosecuting public corruption, organized crime, narcotics and fraud cases. In 1980 he became a Special Attorney for the U.S. Department of Justice's Newark Organized Crime Strike Force, before becoming an Assistant United States Attorney. During his career at the Department of Justice, he was awarded the Special Commendation Award and the Special Achievement Award. The nominee was then appointed by the New Jersey District Court judges to the office of Magistrate Judge in 1987. Magistrate Judge Chesler has also been recognized by his colleagues in receiving an ABA rating of Unanimously Well Qualified. Rosemary Collyer, our nominee to the U.S. District Court for the District of Columbia, is a graduate of the University of Denver School of Law. She began her career at the Denver firm of Sherman & Howard as an associate in the labor and employment law group. Four years later she was nominated by President Reagan and confirmed by the Senate to be the Chairman of the Federal Mine Safety and Health Review Commission, which reviews decisions of specialized administrative law judges who adjudicate cases dealing with mine safety, health and discrimination claims under Federal law. In 1984 Ms. Collyer was nominated by President Reagan and confirmed by the Senate to be General Counsel of the National Labor Relations Board. In this capacity, she served as the nationwide prosecutor of labor law violations, overseeing election processes, representing the NLRB before State and Federal courts, and overseeing agency personnel and budget matters. Since 1989, Ms. Collyer has been a partner at Crowell & Moring in Washington, D.C. Her specialization has been in labor law and employment law. A July 22, 2002 Legal Times article reported that Ms. Collyer is ``well-regarded by her fellow labor lawyers.'' One colleague asserted, ``She cares about getting it right. She is definitely capable of navigating complex cases.'' Another stated that during her time of government service, ``she was an oasis of perceived neutrality. She pandered to no one.'' These are traits that will undoubtedly serve Ms. Collyer well upon her confirmation to the Federal bench. Mark E. Fuller, nominated to be a U.S. District Court Judge for the Middle District of Alabama, is an excellent choice for the federal bench. After graduating from the University of Alabama School of Law in 1985, Mr. Fuller joined the firm of Cassady, Fuller & Marsh, a small litigation firm specializing in all aspects of state and federal practice in rural southeast Alabama. He became a partner in 1986 and remained with the firm until 1996, handling insurance and corporate defense work, and domestic relations, real estate, and corporate law matters. From 1987 to 1992 and from 1995 to 1996, Mr. Fuller worked as a part- time Assistant District Attorney. In 1996 Mr. Fuller accepted the position of Chief Assistant District Attorney for Alabama's Twelfth Judicial Circuit, serving there until 1997, when he was appointed District Attorney in the same office. While working in the District Attorney's office, Mr. Fuller has represented the people of Pike and Coffee counties in criminal cases, including capital murder trials and juvenile and district court matters. In 1998 Mr. Fuller was elected to a full six-year term as District Attorney. He oversees the operations of the office and continues to handle criminal jury trials. Daniel Hovland, nominated to the District Court for the District of North Dakota, promises to be an excellent federal judge. Upon graduation from the University of North Dakota School of Law, he served as a law clerk to the Honorable Ralph J. Erickstad on the North Dakota Supreme Court. He then accepted a position with the Office of the Attorney General for North Dakota, working as an Assistant Attorney General and acting as Director of the Consumer Fraud Division from 1980 to 1983. From there he moved into private practice, working with Fleck Mather & Strutz from 1983 to 1994 and Smith Bakke Hovland & Oppegard from 1994 to the present. As a trial lawyer, Mr. Hovland handles personal injury, wrongful death, medical malpractice, employment/labor, and product liability cases. While in private practice, Mr. Hovland has gained experience particularly helpful for the federal bench. Since 1994 he has served as an Administrative Law Judge for North Dakota's Office of Administrative Hearings, he currently serves on the North Dakota Parole Board, and he has experience with mediation and arbitration. Kent A. Jordan, who has been nominated to the U.S. District Court for the District of Delaware, comes fully recommended by Senators Biden and Carper, and I urge my colleagues to support him as well. Mr. Jordan possesses the experience needed for handling the court's heavy caseload of intellectual property, government corruption, and corporate matters. Following graduation from Georgetown University Law Center in 1984, he served as a law clerk to the Honorable James L. Latchum, judge on the U.S. District Court for the District of Delaware. He then worked in private practice with a Wilmington, Delaware, firm, focusing on corporate and commercial litigation. From 1987 to 1992, Mr. Jordan worked in public service as an Assistant U.S. Attorney for the District of Delaware, advancing to become lead attorney on many civil and criminal issues. Mr. Jordan currently works as a Vice President and General Counsel for the Corporation Service Company, which provides registered agent, public records filing and retrieval, corporate and intellectual property information management, and litigation information management services. James E. Kinkeade, nominated to the U.S. District Court for the Northern District of Texas, is a graduate of Baylor University School of Law. Judge Kinkeade began work as a law clerk and then associate for Brewer & Price in Irving, Texas. One year later he became a partner at Power & Kinkeade Law Firm. He represented a large number of closely held businesses and acted as local counsel for several national corporations. In addition, he had an active domestic relations and criminal practice. Judge Kinkeade served as an Associate Municipal Judge for the City of Irving from 1976-1980. Judge Kinkeade stopped practicing law in January of 1981 to become a judge for the County Criminal Court in Dallas, Texas. In fall of 1981, he became a judge for the 194th District Court of Texas. Since 1988, Judge Kinkeade has served on the State of Texas, 5th District Court of Appeals. In addition, Judge Kinkeade has served as an adjunct professor for over 10 years at the Texas Wesleyan School of Law. He received the Outstanding Adjunct Professor award four times while teaching Professional Responsibility. Judge Robert Gary Klausner, who has been nominated to the District Court for the Central District of California, graduated from Loyola Law School (Los Angeles) in 1967. Though awarded a merit scholarship by Loyola he supported himself as a gas station attendant. Upon graduation, he commenced his service as an active duty officer in the U.S. Army, rising to the rank of Captain and receiving the Bronze Star. After leaving the Army, Judge Klausner worked as a Deputy District Attorney for Los Angeles County. In 1974, he became Court Commissioner to the Pasadena Municipal Court for 6 years. In 1980, he became a Judge to that Court. Judge Klausner then left the Pasadena Municipal Court to become a Judge for the Los Angeles Superior Court. He has been with the Los Angeles Superior Court for the last 17 years. This nominee's life has been dedicated to the people of California and I cannot urge the Senate enough to confirm this well-qualified and well-deserving nominee. Our nominee to the District of New Jersey, Judge Robert Byron Kugler, graduated from Rutgers, Camden Law School and then clerked for the Honorable John F. Gerry of the United States District Court in Camden, New Jersey. In 1979, he was appointed Assistant Camden County Prosecutor and then one year later he was appointed Deputy Attorney General for the New Jersey Department of Law and Public Safety. In these positions, he prosecuted criminal cases brought by county and/or State law enforcement agencies. As a prosecutor, Judge Kugler tried over 30 cases to jury verdict and over 100 cases to verdict in bench trials. In 1982 Judge Kugler entered private practice and focused on matters of civil and criminal litigation. While in private practice, he tried as sole counsel to verdict over 50 cases. Before becoming a Magistrate Judge, Judge Kugler qualified for appointment by the New Jersey Supreme Court as a Certified Trial Attorney and Certified Civil Trial Attorney. Since 1992, Judge Kugler has been a United States Magistrate Judge in the District Court for the District of New Jersey. In January of 2002, the Camden County Bar Association presented its most prestigious award, the Peter J. Devine Award, to Judge Kugler and his wife for their service to the community and bar. Ronald B. Leighton, who has been nominated to the U.S. District Court in the Western District of Washington, is a highly experienced and respected federal trial attorney. Upon graduation from UC--Hastings College of Law, Mr. Leighton clerked for the Honorable Frank Richardson of the California Supreme Court. He then joined the Tacoma, WA, firm of Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, becoming a partner in 1978. He has remained with the same firm to the present day, working as a trial attorney with emphasis on complex litigation in Federal court. Mr. Leighton's excellence as a litigator has not gone unrecognized. Among other honors, he is a member of the American College of Trial Attorneys, the American Board of Trial Advocates, the International Association of Defense Counsel, and the International Society of Barristers. He has represented clients on both sides of the docket. Mr. Leighton was nominated by President George H.W. Bush to the same position in the spring of 1992, but the Democrat-controlled Judiciary Committee did not grant him a hearing. I am pleased that we can finally vote Mr. Leighton to the federal court, and I urge my colleagues to join me in my support. Nominated to the U.S. District Court for the District of New Jersey, Judge Jose Luis Linares immigrated to the United States from Cuba when he was 12 years old. He received his undergraduate degree from Jersey City State University in 1975, where he was a member of the National Honor Society. He then graduated from Temple Law School in 1978. During his studies at Temple, he was on the Dean's List for 2 years and was the recipient of the that law school's Barristers' Society Award for Excellence in Trial Advocacy. Judge Linares started his career with the New York Department of Investigation, where he supervised white-collar crime and corruption investigations in the City of New York. Later, as an attorney at Horowitz, Bross, Sinnins & Imperial, P.A., he was responsible for the preparation and trial of both civil and criminal cases. In 1982, Judge Linares started his own law firm, litigating both civil and criminal cases with a focus on complex medical malpractice and product liability cases. After 18 years as a partner in his own firm, in its many incarnations, he was appointed as a Judge to the New Jersey Superior Court in Essex County. He currently oversees complex medical malpractice cases in the Civil Division of the court. His fellow attorney's are quite impressed with his record as well. He has received the highest rating by the ABA, unanimously Well Qualified. I am proud to say that I will vote for this nominee and I recommend him without reservation to the Senate. Nominated to the U.S. District Court for the Western District of Texas, Judge Alia Moses Ludlum, graduated from the University of Texas School of Law in 1986. She continued her law school job as a law clerk in the Travis County Attorney's Office, where she eventually was promoted to Assistant County Attorney. She held a variety of positions in the office, first as Intake Attorney, then as Trial Attorney, and ultimately as Chief of the office's Appellate Division. Her primary responsibility as an Assistant County Attorney was the prosecution of criminal cases at the trial and appellate levels. She also handled all civil expunction suits and some mental health commitment cases, and represented battered spouses in protective order proceedings. After 4 years at the County Attorney's Office, Judge Ludlum was hired to work as the sole resident AUSA in the Del Rio Division of the U.S. Attorney's Office for the Western District of Texas. She was eventually elevated to the position of Senior Litigation Attorney, then promoted to Chief of the Del Rio Division. As an AUSA, Judge Ludlum prosecuted an average of 125 felony criminal case per year. In 1997, Judge Ludlum became a part-time magistrate judge for the Western District of Texas, Del Rio Division. She assumed that position on a full-time basis in 2000. William J. Martini, who has been nominated to the U.S. District Court for the District of New Jersey, has solid prosecutorial and private practice experience, as well as congressional service all of which will serve him well on the federal bench. A graduate of Rutgers School of Law, Mr. Martini served as a law clerk for the Superior Court of New Jersey, before working as an assistant prosecutor in the Hudson County (New Jersey) Prosecutor's Office. He then took a position as an assistant U.S. Attorney in the U.S. Attorney's Office in Newark, NJ, where he tried a dozen criminal jury trials to completion. Beginning in 1977, Mr. Martini worked as a sole practitioner, initially representing criminal defendants and later branching out into civil litigation, including plaintiff's personal injury suits and commercial contract matters. Following a term serving the people of New Jersey in the House of Representatives, he joined Sills Cummis Radin Tischman Epstein and Gross as partner, focusing on governmental affairs/regulatory law and general litigation. Magistrate Judge Thomas Wade Phillips, nominated to the District Court for the Eastern District of Tennessee, received his undergraduate degree from Berea College in 1965. After college, he attended Vanderbilt University School of Law on a full academic scholarship. In law school he was an assistant articles editor for the law review and was the recipient of the Dean's Award for Best Senior Dissertation. After graduation, he was commissioned into the United States Army, Judge Advocate General Corps, where he received a Appellate Advocacy Award, Government Appellate Division, in 1973. During that same year, he retired from the military and earned an LL.M. in Labor Law from George Washington University Law School. Entering private practice, he was an associate at two firms, before becoming a partner at the firm of Baker, Worthington, Cossley, Stansberry & Woolf. During this period, he was elected to and served for nearly fifteen years as the county attorney for Scott County. From 1977 to 1986 he was a partner at two different firms. In 1986, Magistrate Judge Phillips became a Senior Partner in the firm of Phillips and Williams. He held this position until 1991 when he was appointed United States Magistrate Judge for the Eastern District of Tennessee. On October 17, 2000, he was appointed Chief United States Magistrate Judge for the Eastern District of Tennessee. He continues to serve in this capacity. The ABA has given him their highest rating of Unanimously Well Qualified. Upon graduation from Drake University Law School, Judge Linda Reade, nominated to the U.S. District Court for the Northern District of Iowa, became an associate with a Des Moines area law firm where she worked on litigation involving federal and state civil law. In 1981, she moved to the Des Moines firm of Rosenberg and Margulies, where she worked for three years litigating federal and state, and civil and criminal law. From 1984 to 1986, Judge Reade worked on both federal and state, and civil and criminal cases as a partner in that firm. In 1986, she became an Assistant United States Attorney for the Southern District of Iowa. In 1990, she was promoted to Chief of the General Criminal Division in the United States Attorney's Office for the Southern District of Iowa. Since 1993, Judge Reade has served as a general jurisdiction State District Court Judge in Des Moines, Iowa, where she has maintained a low reversal rate. She has also lectured on civil procedure and trial practice (1995-2000) and taught trial practice for two semesters at Drake University Law School (1988 and 1990). Judge Reade is well prepared to serve as a district court judge. William E. Smith, who has been nominated to the U.S. District Court for the District of Rhode Island, joined Edwards & Angell, LLP, right after law school, and he is a member of the firm's labor, employment, and litigation departments. His practice has included representing management in union contract negotiations, union organizing drives, arbitration proceedings, employment discrimination matters, sexual harassment, wage and hour law, OSHA, OFCCP compliance and investigations, and other Department of Labor investigations. While at his firm, in 1993, Mr. Smith successfully competed to become City Solicitor of Warwick, Rhode Island (under Mayor Lincoln Chafee). As such, he led a team of lawyers who took over all of the city's legal work for a fixed fee. He was also retained that year to be legal counsel to the Rhode Island Secretary of State, performing labor, employment and other matters. In 1994, he was hired by the Rhode Island Department of Administration as outside labor-litigation counsel for a number of arbitration cases. He also worked for the Rhode Island courts during an organizing drive of clerical employees and a restructuring of the court system and as a judge on the municipal court for 4\1/2\ years. Mr. Smith has since returned to private practice with Edwards & Angell. Jeffery Steven White, who has been nominated to the Northern District of California, is a prime example of the high quality attorneys that President Bush has nominated to the Federal bench. He received his undergraduate degree from Queens College of the City University of New York in 1977. He then graduated magna cum laude from the State University of New York, Buffalo's School of Law in 1980. During his studies at SUNY Buffalo, he was a Research Editor of the Law Review and graduated first in his class. Upon graduation, Mr. White became a Trial Attorney for the U.S. Department of Justice, Criminal Division--Management/Labor Section. In 1971 he joined the U.S. Attorney Office for the District of Maryland as an Assistant U.S. Attorney. During his tenure at this position, he was designated as an outstanding Assistant United States Attorney in 1974 and 1976. He then returned to the Department of Justice in 1977 to work as a Senior Grade Trial Attorney in the Public Integrity Section of the Criminal Division. In 1978, Mr. White began a 24 year association with the law firm of Orrick, Herrington & Sutciffe. He quickly rose to become Chairman of the firm's Litigation Department, a position that he held from 1985 to 2000. Freda L. Wolfson, who has been nominated to the District Court for the District of New Jersey, is a great choice for the federal court. Upon graduation from Rutgers University School of Law, Judge Wolfson was a litigation associate at Lowenstein, Sandler, Kohl, Fisher & Boylan. Her practice mostly involved commercial litigation and employment litigation. She also represented a habeas corpus petitioner in federal court and represented several criminal defendants as pro bono counsel. From 1981-1986, she was a litigation associate at Clapp & Eisenberg where she focused on commercial litigation, employment litigation, and defense of ski areas. In addition, she frequently appeared before the New Jersey Casino Control Commission. In 1986, Judge Wolfson was appointed a United States Magistrate Judge, District of New Jersey. Since 1990, she has presided over 32 civil trials, 18 jury trials, and 14 bench trials. She has served on the Third Circuit's Task Force for Indigent Litigants in Civil Cases since 1998. I am proud to support all of these nominees. They have excellent educational backgrounds, they have terrific legal experience, and they have the temperament to excel on the bench. I urge my colleagues to join me in my unqualified support. nomination of judge thomas phillips

Mr. HATCH

Mr. HATCH. Madam President, I rise to pay tribute to my long-time friend and colleague, Representative James V. Hansen. After 22 years of dedicated service to his country and to the State of Utah, Jim has chosen to end his career as a Member of Congress and return home to Utah and to his grandchildren. I am pleased that Mr. Hansen will be able to enjoy his retirement, but we will miss him. Utah has never been better served by a Member of Congress. Just this year he was described by a national media source as one of the 10 most powerful Members of the House of Representatives. Considering the number of Members of that body, that is really saying something. Representative Hansen has had a very positive impact on our Nation, but his impact on Utah and Utahns is truly incalculable. Mr. Hansen was the first Representative from Utah to chair a full committee. Due in large part to the respect he earned among his colleagues on both sides of the aisle, he was appointed to chair the high-profile Committee on Standards of Official Conduct. As some of my colleagues may know, Utah is made up of about 70 percent public lands which includes national parks, Bureau of Land Management lands, national forests, national monuments, national wildlife refuges, and vast military holdings. As a very senior member of the House Armed Services Committee and the Chairman of the Committee on Natural Resources, Representative Hansen has the protector and promoter of so many of Utah's interests. Mr. Hansen's service to the public has spanned more that four decades. He spent the first 12 years of his public service career on the City Council of Farmington, UT. Following that, he served for four terms as a member of the Utah House of Representatives, including one term as the Speaker of the House. In 1980, Mr. Hansen was elected to Congress where he has served diligently until today. Mr. Hansen's honesty, hard work, and strong character have made him a lawmaker that we will never forget. I am one of many who will sorely miss his plain talking leadership and his wisdom on matters of public policy. On behalf of my colleagues in the Senate and the people of Utah, I would like to publicly thank Jim and his wonderful wife Ann for giving so much of themselves to their State and to their Nation.

Mr. HATCH

Mr. HATCH. I agree with the chairman of the Commerce Committee. I also want to him, Senator Allen and Senator Wyden for working with me to include these provisions in the act.

Mr. HATCH. Section 16 of H.R. 3394 would ensure that the authorized funding in the bill for research purposes does not support individuals in violation of U.S. immigration laws. The intent of this section is to prevent any funding, directly or indirectly, of any individual who may pose a threat to our national security, or of any higher education institution, nonprofit institution, or consortia thereof that is not in compliance with the immigration laws. This section does not provide any new or additional authority to the Immigration and Naturalization Service or any other federal agency.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to cosponsor, with my colleague Senator Lieberman from Connecticut, Chairman of the Governmental Affairs Committee, legislation that we believe is essential to better prepare our nation to prepare for and respond to bioterrorist attacks. The goal of our bill, the Biological, Chemical and Radiological Measures Research Act of 2002, is to encourage private sector research and development of diagnostic products, drugs, and vaccines designed to counter biological, chemical, or radiological attacks. One year ago our country faced a series of anthrax attacks that exposed deficiencies in our nation's ability to respond to attacks of bioterrorism. We need to do more. This bill will help protect the American public by deterring future acts of bioterrorism and, in the event of another such attack, will increase our capacity to respond effectively to the weapon deployed. This legislation complements the bioterrorism bill passed by Congress earlier this year that focused on building up the public health infrastructure. Senators Kennedy, Gregg and Frist deserve much credit for their work on that bill as do Congressmen Tauzin, Bilirakis, Dingell and Brown. Also, we would be remiss if we did not recognize the manner in which the Appropriations Committees in both the Senate and the House adjusted their priorities so quickly last Fall. I salute the leadership of Senators Byrd, Harkin, Stevens and Specter in making available substantial new funding for building up the capacity of the public health system to protect our citizens against the threat of bioterrorism. When it comes to protecting America, partisanship has no place. Senator Lieberman built upon the strong tradition of bi-partisanship in the war against terrorism in introducing this bill today. Although we are far better prepared for a terrorist attack today than ever before, and preventing a terrorist attack is our first priority, there are areas where we can improve our preparedness in the case of such an attack. Chief among these is the development of preventive agents and treatments for those citizens who may become exposed to or infected by deadly biological, chemical, and radiological agents. Building up the public health infrastructure alone will be insufficient if our national medicine chest does not contain safe and effective medicines to counter particular threat agents. This bill creates incentives for the private sector to try to fill the medicine chest with new products designed to respond to biological or other similar attacks. We need many new treatments and vaccines and the Lieberman-Hatch bill will unleash the creative energy and many resources of the private sector biomedical research enterprise. America leads the world in biomedical research capacity. The Lieberman-Hatch bill attempts to help focus the enormous assets of our research expertise in a manner that will protect the public health. This legislation seeks to help translate the basic knowledge, much of it funded through the $27 billion taxpayer-investment in the National Institutes of Health, into tangible products developed by the private sector. Given the growing risk of further attacks and the potentially devastating consequences of bioterrorism, we must abandon a business as usual attitude and take the vigorous steps that Senator Lieberman and I urge through this legislation. Our legislation is an additional measure to other avenues we have pursued to protect our nation from terrorism, including the Biologic Weapons Convention and government funded research at NIH, the Defense Advanced Research Projects Agency, DARPA, and the Centers for Disease Control and Prevention, CDC. Though we have mobilized many governmental agencies and increased direct federal funding for research and development of new treatments, I agree with Senator Lieberman, that what we have done thus far, impressive as it has been, is not nearly enough. Direct government funding for this research is likely to be insufficient for our national defense needs unless we marry our efforts with the private sector to the greatest extent possible. That is exactly what this bill does. Unfortunately, it is hard to avoid sounding somewhat like an alarmist when speaking on these matters. But, the truth of the matter today is that we do not have effective treatment for a host of potential biological, chemical and radiological threat agents. We must develop these with a greater sense of urgency and this legislation will serve as a catalyst for private sector investment and research and development activities. We need to develop an expedient, efficient capacity that combines the best of what our society has--strong federal and academic institutions with the most innovative biotechnology and pharmaceutical companies in the world. It would be a grave mistake to ignore the tremendous capabilities and potential of our country's biotech and pharmaceutical private sector. We must be creative, willing to work together, putting aside partisan politics and our opinions of the government or the private sector when dealing with a potential deadly threat to our nation. I believe Senator Lieberman and I have done that. Though we have not agreed on all the details on everything related to homeland security, we agree on this vital component. We must provide the tools to forge a collaborative effort by the private sector and the Federal Government to come up with the cures and vaccines we may, sadly, need one day. The best deterrent of bioterrorist attacks is to be able to demonstrate the capacity to counter such dastardly acts. I think the case can be made that all the rapid progress we have made in smallpox in the last year makes an attack with that agent less likely. That is the good news. The bad news is that there are too many agents for which we do not have any vaccine or effective therapeutic response. We need to roll up our sleeves and get to work on many other potential tools of destruction. Our bill provides the private sector with important incentives to get this work done and to get it done now. Most private sector companies rely on equity capital markets and investments to fund research. Naturally, they focus on research that will lead to products that will sell and have a dependable market. As we know, thankfully, there is no dependable or established market for counter terrorism. Therefore, not unreasonably, investors need some kind of assurance that the costly and complex research we are asking them to invest in will be rewarded--that the reward will be commensurate with the risk. Under current law, private companies are reluctant to enter into agreements with government agencies to conduct needed research. The bill Senator Lieberman and I are introducing greatly expands the incentives for biotechnology and pharmaceutical companies to develop bioterrorism countermeasures. I do not think anyone will oppose involving some of the most powerful research minds and new technology as we defend our country against these threats. We need to involve these biomedical research companies more directly into our national defense plan, as they may very well be the ones to provide us with what we need to the medical front. I know there are novel, and perhaps controversial, features in this bill--anything innovative usually does. I ask that each and every one of you who has a stake in this issue enter into this debate. Keep in mind that the goal is to close any gap that exists in our plan against terrorism--I believe this includes engaging the private sector. We need to make sure that these companies have the proper incentives to engage in expensive, arduous research that could potentially save millions of Americans. Let me now review the specifics of our proposal. We provide incentives, such as tax incentives, guaranteed purchase funds, and patent and liability protections, which make it possible for private companies to form the capital needed to conduct this vital research. Again, we cannot expect these companies to engage in expensive research and development for an extremely unpredictable market without providing them meaningful incentives and reassurance. In some respects this legislation is similar to another bill I co- authored, the Orphan Drug Act. The Orphan Drug Act utilizes tax credits and marketing exclusivity incentives to spur research into rare diseases with patient populations under 200,000 in the United States. This modest little bill has resulted in over 220 approved orphan products with over 1000 more designated for investigation. It is my hope and expectation that, in introducing our bill today, we can recreate the success of the Orphan Drug Act in getting the private sector motivated in a particular area of research. The Lieberman-Hatch bill contains powerful incentives. Here is how it works. The bill requires the private sector to work closely with the appropriate governmental officials. The legislation ensures that the Department of Homeland Security sets the countermeasure research priorities in advance. The Department of Homeland Security is required to take into account the status of existing research, the potential for non-countermeasure markets for the research, and the most effective strategy for propelling the research forward and provides this information to potential manufacturers. The bill also requires companies to register with the Department, to provide reports as requested and to be open to inspections, in order to be eligible for incentives. Once a company is certified, it is eligible for tax incentives for capital formation. The Department then determines if a manufacturer has successfully developed a countermeasure. Once the specifications of the Department are met, the company is eligible for the procurement, patent, and liability provisions. These incentives apply to diagnostics, drugs, vaccines and other countermeasures deemed necessary, including research tools. If companies seek to develop a research tool that enables the advancement of a countermeasure to a previously unknown agent or toxin, or an agent or toxin not targeted by the Department, they are also eligible for incentives. The four tax incentives companies are eligible to select from include: (a) An R&D Limited Partnership to conduct the research. The partnership passes through all business deductions and credits to the partners. (b) A special class of stock for the entity to conduct the research. The investors would be entitled to a zero capital gains tax rate on any gains realized on the stock. (c) A special tax credit to help fund the research. (d) A special tax credit for research conducted at a non-profit and academic research institution. I want to point out that a company can elect only one of these incentives and, if it elects one of these incentives, the company is not eligible to further benefits under the Orphan Drug Act. That is only fair. I would like to briefly discuss the Countermeasure Purchase Fund contained in Section 202 of the bill. Basically, the legislation affords a company that successfully develops a countermeasure--through FDA approval--eligibility to sell the product to the Federal Government at a pre-established price and in a pre-determined amount. The company is given notice of the terms of the sale before it begins research. The intellectual property incentives are contained in Section 203 of the bill. There are two patent incentives: One, the company is eligible to receive full patent term restoration for its invention. This means that it is held harmless for patent term erosion due to the lengthy FDA approval process. This alternative is available to any company that successfully develops a countermeasure irrespective of its paid-in capital. This is a significant incentive over the normal partial patent term restoration provisions contained in the Drug Price Competition and Patent Term Restoration Act. I am a co- author of this law which has contributed to consumer savings of $8 to $10 billion each year since its passage in 1984. This was the legislation that created the modern generic drug industry. But under this law the patent term cannot be restored beyond 14 years. When the 1984 law was enacted the patent term was 17 years from date of patent issuance; with the enactment of the GATT Treaty implementing legislation, the patent term was changed to 20 years from date of application. By adopting a policy of day for day patent term restoration, the Lieberman-Hatch bill is sending a strong signal to the private sector to pour its resources into this research. By lengthening the patent term beyond the existing 14 year cap, drug companies will have a new incentive to devote their efforts to this research. Two, under the bill, small companies are also eligible to elect to extend the term of any patent owned by the company for two years. The patent may not be one that is acquired by the company from a third party. This is included as a capital formation incentive for small biotechnology companies with less than $750 million in paid- in capital, or, at the discretion of the Department of Homeland Security, to any firm that successfully develops a countermeasure. This provision will get the attention of our nation's growing biotechnology sector. In addition, a company that successfully develops a countermeasure is eligible for a 10 year period of market exclusivity on the countermeasure. This means that the FDA may not approve a generic copy of such a drug for 10 years regardless of whether the drug has any patent protection. This is in contrast to the 5 years of marketing exclusivity granted under the Drug Price Competition and Patent Term Restoration Act. This is an important incentive because it is the government that enforces the marketing exclusivity provision, not the firm through costly, risky, and time-consuming private patent infringement litigation. Other incentives in the bill include the liability protections set forth in section 204; a limited antitrust exemption designed to expedite and coordinate research as set forth in section 213; accelerated FDA approval provisions described in section 211; and, special FDA approval standards established in section 212 that codify the FDA regulations that authorize approval in the absence of human clinical trails if such trails are impractical or unethical. In addition the bill provide; incentives to enhance biologics manufacturing capacity for countermeasures. This includes grants to construct specialized biosafety containment facilities where biological agents can be handled safely without exposing researchers and the public to danger. The bill also reauthorizes a successful NIH-industry partnership challenge grants to promote joint ventures between NIH and its grantees and for-profit biotechnology, pharmaceutical, and medical device industries with regard to the development of countermeasures and research tools. Finally, the bill also provides incentives for the development and use of adjuvants to enhance the potency of countermeasures; requires the Department of Homeland Security to prepare an Annual Report to Congress on the implementation of these incentives in the legislation and to organize an annual international conference on countermeasure research. Let me conclude by saying that this legislation lays out an unabashedly aggressive set of incentives designed to stimulate research. There will undoubtedly be criticisms of some of the features of the bill. Senator Lieberman and I recognize that adjustments will have to be made along the way. We want to work closely with President Bush, Vice President Cheney, Governor Ridge, and Secretary Thompson and others in the Administration in refining this legislation. We recognize that unless the President feel that this type of program is necessary it is unlikely to be adopted. The subject mater of this legislation cuts across many Committees of the Senate. Senator Lieberman and I will work with the Finance Committee, the Judiciary Committee I serve on both of these committees--as well as the HELP Committee, Commerce Committee, and the Governmental Affairs Committee which my friend from Connecticut Chairs. I might add, as much as I admire Senator Lieberman, I hope that next month he becomes the Ranking Democratic Member of the Governmental Affairs Committee. We will continue to work with all interested parties in the private sector to refine this legislation. We welcome this dialog. Let me state clearly that my cosponsorship today is more an unambiguous statement that I intend to work in partnership with Senator Lieberman than it is a statement that I agree with each provision and detail of this bill. Specifically, I do not agree with--and would not support--the anti-trust and indemnification provisions as currently drafted. We must tread carefully in the areas of government indemnification and in holding any meetings with the private sector in which anti-trust concerns are triggered. My cosponsorship of this legislation today which will serve as a discussion draft between the 107th and 108th Congress--should not be considered as a reversal of my views on indemnification and antitrust policy. It is not. My cosponsorship only signals my willingness to be open to rethinking my traditional views of indemnification and antitrust policy in light of this grave threat to our national security. These sections--as well as many other parts of the bill need more work. At the end of the day, I hope we can come together on these questions. I want to stress the fact that I opposed proposed indemnification language in the Kennedy-Gregg-Frist bioterrorism bill passed earlier this year. I have opposed indemnification provisions in discussions over matters of homeland security. I continue to hold my position that indemnification is not only not the best policy but that it may also be counterproductive in the long run. Similarly, I have rejected any general policy of governmental indemnification of those injured by asbestos or tobacco use. The private sector must bare its share of the risk and responsibility when it produces potentially dangerous products. Frankly, I believe the solution to the indemnification issue may ultimately stem from the hard work of Senators Warner and Thompson with respect to their amendment, Number 4530, to the Homeland Security bill. This language was carefully worked out in close consultation with by Senators Warner and Thompson and the White House earlier this year. We will take advantage of amendment Number 4530 as we further refine our legislation in this area. The Warner-Thompson language builds upon the principles contained in Executive order No. 10879 and the authority set forth in Public Law 85- 804. These authorities grant the Department of Defense, at DoD's discretion, to include indemnification clauses in its contracts with military contractors, with certain limitations and conditions. In order for this authority to apply to the new Office of Homeland Security, current law needs to be amended. It is important to note that the language of the Warner-Thompson amendment retains the principle of discretionary authority. That is important. We can not write a blank check to the private sector. Senator Lieberman and I have included language in our bill that requires the new Secretary of Homeland Security ``to make a determination . . . that it is in the national security interest of the United States'' before any indemnification provision could be triggered. The Warner-Thompson amendment is narrowly tailored to the procurement of anti-terrorism technology or services by a federal agency directly engaged in homeland security activities. Moreover, consistent with the Warner-Thompson language, we need to flesh out the factors the Administration shall consider in negotiating the extent of any indemnification. Although we need to further refine the language in the discussion draft bill we introduce today, my intent is do follow the lead of and principles contained in the Warner-Thompson Amendment. Further, the Warner-Thompson Amendment language includes procurements made by State and local governments but only through contracts made by the head of an agency of the Federal Government and only to the extent that those loses are not covered by insurance. A discussion of indemnification in the context of bioterrorism countermeasures is a very special case. It is a unique circumstance in which we may very well face many issues never confronted before such as the possibility of using drugs that can not be ethically tested in human beings due to the danger of the agent the drug is intended to treat. We are not talking about asbestos or tobacco here, we are talking about potential attacks that could undermine the public health, economic wealth, and environmental integrity of the United States of America. We are trying to protect against the use weapons of terror in the hands of terrorists, not routine uses of consumer and other products. If unforseen side effects occur when countermeasures are dispensed, society may be presented with problems that will require innovative responses. The future of our country is at stake. I have twenty grandchildren and I want them to hand down our traditions and heritage to their grandchildren. It is for their sake that we must try to settle these issues. But let us not get to far ahead of ourselves at this point with all these details. This legislation is a work in progress. Anyone who has witnessed the extensive floor debate over the last 2 months over the creation of the Office of Homeland Security understands that we have much, much more work to do with respect to the creation of the new department and many other homeland security issues. I hope and expect that President Bush and the Congress will come together on the Department of Homeland Security. I commend Senator Lieberman for his constructive role in this ongoing debate. My support of this legislation should be construed as a personal commitment to work closely with Senator Lieberman, the White House and other parties to address the issues raised in the bill. It is my hope that we can arrive at an acceptable compromise on the indemnification and antitrust provisions, as well as, all the other matters taken up in this important legislation. As a pragmatic legislator, I understand that to make an omelette, you always have to break an egg. I hope this discussion draft bill will help inspire discussion and move the process along. We are facing unprecedented threats to our Nation's security. We need to be open to novel solutions to these new problems. We hope that this bill will foster thoughtful discussion on how best to prepare the nation for any potential biological, chemical, or radiological attack. Let us not lose sight of our mission to protect our nation from the devastating illness and death that bioterrorism can bring. We desperately need to develop the technology to prevent, detect, diagnose, and treat our citizens who may fall victim to bioterrorism. I believe that strengthening the government's partnership with the private sector is the most effective and expedient step we can take at this point in time. The Kennedy-Gregg-Frist bioterrorism law was an enormous step forward. The funding support provided by Senators Byrd, Stevens, Harkin, and Specter and other appropriators is also essential. This public sector investment must now be joined by legislation that will foster a commensurate private sector response. That is exactly what the Lieberman-Hatch bill, the Biological, Chemical and Radiological Measures Research Act of 2002, will do if Congress passes this law. Let me close by saying that I have enjoyed working with Senator Lieberman in developing this bill and look forward to continuing this partnership in the future as we work with other Senators on this legislation. I also want to recognize the efforts of Chuck Ludlam on Senator Lieberman's staff for all the work he has done to bring the bill to this point. Senator Lieberman and I urge our colleagues to review the ``Biological, Chemical and Radiological Measures Research Act of 2002''. I hope that our colleagues will conclude that this legislation deserves to be near the top of the agenda when the 108th Congress convenes in January.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to cosponsor, with my colleague Senator Lieberman from Connecticut, Chairman of the Governmental Affairs Committee, legislation that we believe is essential to better prepare our nation to prepare for and respond to bioterrorist attacks. The goal of our bill, the Biological, Chemical and Radiological Measures Research Act of 2002, is to encourage private sector research and development of diagnostic products, drugs, and vaccines designed to counter biological, chemical, or radiological attacks. One year ago our country faced a series of anthrax attacks that exposed deficiencies in our nation's ability to respond to attacks of bioterrorism. We need to do more. This bill will help protect the American public by deterring future acts of bioterrorism and, in the event of another such attack, will increase our capacity to respond effectively to the weapon deployed. This legislation complements the bioterrorism bill passed by Congress earlier this year that focused on building up the public health infrastructure. Senators Kennedy, Gregg and Frist deserve much credit for their work on that bill as do Congressmen Tauzin, Bilirakis, Dingell and Brown. Also, we would be remiss if we did not recognize the manner in which the Appropriations Committees in both the Senate and the House adjusted their priorities so quickly last Fall. I salute the leadership of Senators Byrd, Harkin, Stevens and Specter in making available substantial new funding for building up the capacity of the public health system to protect our citizens against the threat of bioterrorism. When it comes to protecting America, partisanship has no place. Senator Lieberman built upon the strong tradition of bi-partisanship in the war against terrorism in introducing this bill today. Although we are far better prepared for a terrorist attack today than ever before, and preventing a terrorist attack is our first priority, there are areas where we can improve our preparedness in the case of such an attack. Chief among these is the development of preventive agents and treatments for those citizens who may become exposed to or infected by deadly biological, chemical, and radiological agents. Building up the public health infrastructure alone will be insufficient if our national medicine chest does not contain safe and effective medicines to counter particular threat agents. This bill creates incentives for the private sector to try to fill the medicine chest with new products designed to respond to biological or other similar attacks. We need many new treatments and vaccines and the Lieberman-Hatch bill will unleash the creative energy and many resources of the private sector biomedical research enterprise. America leads the world in biomedical research capacity. The Lieberman-Hatch bill attempts to help focus the enormous assets of our research expertise in a manner that will protect the public health. This legislation seeks to help translate the basic knowledge, much of it funded through the $27 billion taxpayer-investment in the National Institutes of Health, into tangible products developed by the private sector. Given the growing risk of further attacks and the potentially devastating consequences of bioterrorism, we must abandon a business as usual attitude and take the vigorous steps that Senator Lieberman and I urge through this legislation. Our legislation is an additional measure to other avenues we have pursued to protect our nation from terrorism, including the Biologic Weapons Convention and government funded research at NIH, the Defense Advanced Research Projects Agency, DARPA, and the Centers for Disease Control and Prevention, CDC. Though we have mobilized many governmental agencies and increased direct federal funding for research and development of new treatments, I agree with Senator Lieberman, that what we have done thus far, impressive as it has been, is not nearly enough. Direct government funding for this research is likely to be insufficient for our national defense needs unless we marry our efforts with the private sector to the greatest extent possible. That is exactly what this bill does. Unfortunately, it is hard to avoid sounding somewhat like an alarmist when speaking on these matters. But, the truth of the matter today is that we do not have effective treatment for a host of potential biological, chemical and radiological threat agents. We must develop these with a greater sense of urgency and this legislation will serve as a catalyst for private sector investment and research and development activities. We need to develop an expedient, efficient capacity that combines the best of what our society has--strong federal and academic institutions with the most innovative biotechnology and pharmaceutical companies in the world. It would be a grave mistake to ignore the tremendous capabilities and potential of our country's biotech and pharmaceutical private sector. We must be creative, willing to work together, putting aside partisan politics and our opinions of the government or the private sector when dealing with a potential deadly threat to our nation. I believe Senator Lieberman and I have done that. Though we have not agreed on all the details on everything related to homeland security, we agree on this vital component. We must provide the tools to forge a collaborative effort by the private sector and the Federal Government to come up with the cures and vaccines we may, sadly, need one day. The best deterrent of bioterrorist attacks is to be able to demonstrate the capacity to counter such dastardly acts. I think the case can be made that all the rapid progress we have made in smallpox in the last year makes an attack with that agent less likely. That is the good news. The bad news is that there are too many agents for which we do not have any vaccine or effective therapeutic response. We need to roll up our sleeves and get to work on many other potential tools of destruction. Our bill provides the private sector with important incentives to get this work done and to get it done now. Most private sector companies rely on equity capital markets and investments to fund research. Naturally, they focus on research that will lead to products that will sell and have a dependable market. As we know, thankfully, there is no dependable or established market for counter terrorism. Therefore, not unreasonably, investors need some kind of assurance that the costly and complex research we are asking them to invest in will be rewarded--that the reward will be commensurate with the risk. Under current law, private companies are reluctant to enter into agreements with government agencies to conduct needed research. The bill Senator Lieberman and I are introducing greatly expands the incentives for biotechnology and pharmaceutical companies to develop bioterrorism countermeasures. I do not think anyone will oppose involving some of the most powerful research minds and new technology as we defend our country against these threats. We need to involve these biomedical research companies more directly into our national defense plan, as they may very well be the ones to provide us with what we need to the medical front. I know there are novel, and perhaps controversial, features in this bill--anything innovative usually does. I ask that each and every one of you who has a stake in this issue enter into this debate. Keep in mind that the goal is to close any gap that exists in our plan against terrorism--I believe this includes engaging the private sector. We need to make sure that these companies have the proper incentives to engage in expensive, arduous research that could potentially save millions of Americans. Let me now review the specifics of our proposal. We provide incentives, such as tax incentives, guaranteed purchase funds, and patent and liability protections, which make it possible for private companies to form the capital needed to conduct this vital research. Again, we cannot expect these companies to engage in expensive research and development for an extremely unpredictable market without providing them meaningful incentives and reassurance. In some respects this legislation is similar to another bill I co- authored, the Orphan Drug Act. The Orphan Drug Act utilizes tax credits and marketing exclusivity incentives to spur research into rare diseases with patient populations under 200,000 in the United States. This modest little bill has resulted in over 220 approved orphan products with over 1000 more designated for investigation. It is my hope and expectation that, in introducing our bill today, we can recreate the success of the Orphan Drug Act in getting the private sector motivated in a particular area of research. The Lieberman-Hatch bill contains powerful incentives. Here is how it works. The bill requires the private sector to work closely with the appropriate governmental officials. The legislation ensures that the Department of Homeland Security sets the countermeasure research priorities in advance. The Department of Homeland Security is required to take into account the status of existing research, the potential for non-countermeasure markets for the research, and the most effective strategy for propelling the research forward and provides this information to potential manufacturers. The bill also requires companies to register with the Department, to provide reports as requested and to be open to inspections, in order to be eligible for incentives. Once a company is certified, it is eligible for tax incentives for capital formation. The Department then determines if a manufacturer has successfully developed a countermeasure. Once the specifications of the Department are met, the company is eligible for the procurement, patent, and liability provisions. These incentives apply to diagnostics, drugs, vaccines and other countermeasures deemed necessary, including research tools. If companies seek to develop a research tool that enables the advancement of a countermeasure to a previously unknown agent or toxin, or an agent or toxin not targeted by the Department, they are also eligible for incentives. The four tax incentives companies are eligible to select from include: (a) An R&D Limited Partnership to conduct the research. The partnership passes through all business deductions and credits to the partners. (b) A special class of stock for the entity to conduct the research. The investors would be entitled to a zero capital gains tax rate on any gains realized on the stock. (c) A special tax credit to help fund the research. (d) A special tax credit for research conducted at a non-profit and academic research institution. I want to point out that a company can elect only one of these incentives and, if it elects one of these incentives, the company is not eligible to further benefits under the Orphan Drug Act. That is only fair. I would like to briefly discuss the Countermeasure Purchase Fund contained in Section 202 of the bill. Basically, the legislation affords a company that successfully develops a countermeasure--through FDA approval--eligibility to sell the product to the Federal Government at a pre-established price and in a pre-determined amount. The company is given notice of the terms of the sale before it begins research. The intellectual property incentives are contained in Section 203 of the bill. There are two patent incentives: One, the company is eligible to receive full patent term restoration for its invention. This means that it is held harmless for patent term erosion due to the lengthy FDA approval process. This alternative is available to any company that successfully develops a countermeasure irrespective of its paid-in capital. This is a significant incentive over the normal partial patent term restoration provisions contained in the Drug Price Competition and Patent Term Restoration Act. I am a co- author of this law which has contributed to consumer savings of $8 to $10 billion each year since its passage in 1984. This was the legislation that created the modern generic drug industry. But under this law the patent term cannot be restored beyond 14 years. When the 1984 law was enacted the patent term was 17 years from date of patent issuance; with the enactment of the GATT Treaty implementing legislation, the patent term was changed to 20 years from date of application. By adopting a policy of day for day patent term restoration, the Lieberman-Hatch bill is sending a strong signal to the private sector to pour its resources into this research. By lengthening the patent term beyond the existing 14 year cap, drug companies will have a new incentive to devote their efforts to this research. Two, under the bill, small companies are also eligible to elect to extend the term of any patent owned by the company for two years. The patent may not be one that is acquired by the company from a third party. This is included as a capital formation incentive for small biotechnology companies with less than $750 million in paid- in capital, or, at the discretion of the Department of Homeland Security, to any firm that successfully develops a countermeasure. This provision will get the attention of our nation's growing biotechnology sector. In addition, a company that successfully develops a countermeasure is eligible for a 10 year period of market exclusivity on the countermeasure. This means that the FDA may not approve a generic copy of such a drug for 10 years regardless of whether the drug has any patent protection. This is in contrast to the 5 years of marketing exclusivity granted under the Drug Price Competition and Patent Term Restoration Act. This is an important incentive because it is the government that enforces the marketing exclusivity provision, not the firm through costly, risky, and time-consuming private patent infringement litigation. Other incentives in the bill include the liability protections set forth in section 204; a limited antitrust exemption designed to expedite and coordinate research as set forth in section 213; accelerated FDA approval provisions described in section 211; and, special FDA approval standards established in section 212 that codify the FDA regulations that authorize approval in the absence of human clinical trails if such trails are impractical or unethical. In addition the bill provide; incentives to enhance biologics manufacturing capacity for countermeasures. This includes grants to construct specialized biosafety containment facilities where biological agents can be handled safely without exposing researchers and the public to danger. The bill also reauthorizes a successful NIH-industry partnership challenge grants to promote joint ventures between NIH and its grantees and for-profit biotechnology, pharmaceutical, and medical device industries with regard to the development of countermeasures and research tools. Finally, the bill also provides incentives for the development and use of adjuvants to enhance the potency of countermeasures; requires the Department of Homeland Security to prepare an Annual Report to Congress on the implementation of these incentives in the legislation and to organize an annual international conference on countermeasure research. Let me conclude by saying that this legislation lays out an unabashedly aggressive set of incentives designed to stimulate research. There will undoubtedly be criticisms of some of the features of the bill. Senator Lieberman and I recognize that adjustments will have to be made along the way. We want to work closely with President Bush, Vice President Cheney, Governor Ridge, and Secretary Thompson and others in the Administration in refining this legislation. We recognize that unless the President feel that this type of program is necessary it is unlikely to be adopted. The subject mater of this legislation cuts across many Committees of the Senate. Senator Lieberman and I will work with the Finance Committee, the Judiciary Committee I serve on both of these committees--as well as the HELP Committee, Commerce Committee, and the Governmental Affairs Committee which my friend from Connecticut Chairs. I might add, as much as I admire Senator Lieberman, I hope that next month he becomes the Ranking Democratic Member of the Governmental Affairs Committee. We will continue to work with all interested parties in the private sector to refine this legislation. We welcome this dialog. Let me state clearly that my cosponsorship today is more an unambiguous statement that I intend to work in partnership with Senator Lieberman than it is a statement that I agree with each provision and detail of this bill. Specifically, I do not agree with--and would not support--the anti-trust and indemnification provisions as currently drafted. We must tread carefully in the areas of government indemnification and in holding any meetings with the private sector in which anti-trust concerns are triggered. My cosponsorship of this legislation today which will serve as a discussion draft between the 107th and 108th Congress--should not be considered as a reversal of my views on indemnification and antitrust policy. It is not. My cosponsorship only signals my willingness to be open to rethinking my traditional views of indemnification and antitrust policy in light of this grave threat to our national security. These sections--as well as many other parts of the bill need more work. At the end of the day, I hope we can come together on these questions. I want to stress the fact that I opposed proposed indemnification language in the Kennedy-Gregg-Frist bioterrorism bill passed earlier this year. I have opposed indemnification provisions in discussions over matters of homeland security. I continue to hold my position that indemnification is not only not the best policy but that it may also be counterproductive in the long run. Similarly, I have rejected any general policy of governmental indemnification of those injured by asbestos or tobacco use. The private sector must bare its share of the risk and responsibility when it produces potentially dangerous products. Frankly, I believe the solution to the indemnification issue may ultimately stem from the hard work of Senators Warner and Thompson with respect to their amendment, Number 4530, to the Homeland Security bill. This language was carefully worked out in close consultation with by Senators Warner and Thompson and the White House earlier this year. We will take advantage of amendment Number 4530 as we further refine our legislation in this area. The Warner-Thompson language builds upon the principles contained in Executive order No. 10879 and the authority set forth in Public Law 85- 804. These authorities grant the Department of Defense, at DoD's discretion, to include indemnification clauses in its contracts with military contractors, with certain limitations and conditions. In order for this authority to apply to the new Office of Homeland Security, current law needs to be amended. It is important to note that the language of the Warner-Thompson amendment retains the principle of discretionary authority. That is important. We can not write a blank check to the private sector. Senator Lieberman and I have included language in our bill that requires the new Secretary of Homeland Security ``to make a determination . . . that it is in the national security interest of the United States'' before any indemnification provision could be triggered. The Warner-Thompson amendment is narrowly tailored to the procurement of anti-terrorism technology or services by a federal agency directly engaged in homeland security activities. Moreover, consistent with the Warner-Thompson language, we need to flesh out the factors the Administration shall consider in negotiating the extent of any indemnification. Although we need to further refine the language in the discussion draft bill we introduce today, my intent is do follow the lead of and principles contained in the Warner-Thompson Amendment. Further, the Warner-Thompson Amendment language includes procurements made by State and local governments but only through contracts made by the head of an agency of the Federal Government and only to the extent that those loses are not covered by insurance. A discussion of indemnification in the context of bioterrorism countermeasures is a very special case. It is a unique circumstance in which we may very well face many issues never confronted before such as the possibility of using drugs that can not be ethically tested in human beings due to the danger of the agent the drug is intended to treat. We are not talking about asbestos or tobacco here, we are talking about potential attacks that could undermine the public health, economic wealth, and environmental integrity of the United States of America. We are trying to protect against the use weapons of terror in the hands of terrorists, not routine uses of consumer and other products. If unforseen side effects occur when countermeasures are dispensed, society may be presented with problems that will require innovative responses. The future of our country is at stake. I have twenty grandchildren and I want them to hand down our traditions and heritage to their grandchildren. It is for their sake that we must try to settle these issues. But let us not get to far ahead of ourselves at this point with all these details. This legislation is a work in progress. Anyone who has witnessed the extensive floor debate over the last 2 months over the creation of the Office of Homeland Security understands that we have much, much more work to do with respect to the creation of the new department and many other homeland security issues. I hope and expect that President Bush and the Congress will come together on the Department of Homeland Security. I commend Senator Lieberman for his constructive role in this ongoing debate. My support of this legislation should be construed as a personal commitment to work closely with Senator Lieberman, the White House and other parties to address the issues raised in the bill. It is my hope that we can arrive at an acceptable compromise on the indemnification and antitrust provisions, as well as, all the other matters taken up in this important legislation. As a pragmatic legislator, I understand that to make an omelette, you always have to break an egg. I hope this discussion draft bill will help inspire discussion and move the process along. We are facing unprecedented threats to our Nation's security. We need to be open to novel solutions to these new problems. We hope that this bill will foster thoughtful discussion on how best to prepare the nation for any potential biological, chemical, or radiological attack. Let us not lose sight of our mission to protect our nation from the devastating illness and death that bioterrorism can bring. We desperately need to develop the technology to prevent, detect, diagnose, and treat our citizens who may fall victim to bioterrorism. I believe that strengthening the government's partnership with the private sector is the most effective and expedient step we can take at this point in time. The Kennedy-Gregg-Frist bioterrorism law was an enormous step forward. The funding support provided by Senators Byrd, Stevens, Harkin, and Specter and other appropriators is also essential. This public sector investment must now be joined by legislation that will foster a commensurate private sector response. That is exactly what the Lieberman-Hatch bill, the Biological, Chemical and Radiological Measures Research Act of 2002, will do if Congress passes this law. Let me close by saying that I have enjoyed working with Senator Lieberman in developing this bill and look forward to continuing this partnership in the future as we work with other Senators on this legislation. I also want to recognize the efforts of Chuck Ludlam on Senator Lieberman's staff for all the work he has done to bring the bill to this point. Senator Lieberman and I urge our colleagues to review the ``Biological, Chemical and Radiological Measures Research Act of 2002''. I hope that our colleagues will conclude that this legislation deserves to be near the top of the agenda when the 108th Congress convenes in January.

Mr. HATCH

Mr. HATCH. I ask unanimous consent the Senate agree to the House amendment, the motion to reconsider be laid upon the table, and any statements relating to this bill be printed in the Record.

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

Mr. HATCH. Mr. President, I ask that the Chair lay before the Senate a message from the House of Representatives on S. 2690, which is at the desk. The PRESIDING OFFICER laid before the Senate a message from the House of Representatives:

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to highlight a very important initiative in my State of Utah, The Center for Advancement of Leadership. The Center for the Advancement of Leadership was approved by the Utah Board of Regents in January of 2001 and operates as a part of the Utah Valley State College School of Business. The center was established for college students, K-12 students, and professional practitioners to accomplish several goals: first, to advance leadership and character development education through classes, programs, and conferences; second, to expand the body of leadership knowledge through studies, projects, and research; and finally, to reinforce the importance of ethical behavior in doing business. In order to accomplish these goals, The center has undertaken several projects designed to establish leadership education programs for each of the target demographics mentioned. The focal point of The Center is the certification program for students from all collegiate disciplines attending Utah Valley State College, UVSC. Students may earn a ``Leadership Certificate'' that will be a part of their official college transcript by completing 15 credit hours in leadership management. The Center and the School of Business at UVSC have launched a leadership education program that is reaching students in several of the local high schools. These students, through state-approved concurrent enrollment, are receiving college credit in high school for taking School of Business leadership classes. UVSC Athletics and the center, along with local school districts and community-based organizations, have developed and implemented a program titled, ``No Greater Heroes.'' Student athletes from UVSC use a well- planned script to present a high-powered, energetic program that builds self-confidence in young, elementary school-age children. They are taught character-development abilities to set high standards for themselves. The center will also provide support to the ``Why Try'' program for junior high schools. ``Why Try'' was created to provide simple hands-on solutions for helping youth overcome challenges. The goal of the ``Why Try'' program is to help youth answer the question, ``Why try in life?'' during times when they are frustrated, confused, or angry with life's pressures. It teaches youth that it is worth putting the effort in overcoming the challenges at home, at school, and with peers. It also provides opportunity from more freedom and self-respect. The Center also hosts the Annual Leadership Conference on the campus of Utah Valley State College. Keynote speakers in the past have included such high-profile individuals as Sheri Dew, Rulon Gardner, Ed J. Pinegar, Steve Young, and Denis Waitley. During this 1-day conference, attendees are able to learn from some of the best minds in the leadership field. In addition to the keynote addresses, participants are able to choose from a diverse selection of topics for breakout sessions. The topics are tailored to meet the needs of the students, advisors, and business and community leaders. There is significant demand for the current leadership programs at UVSC. Already 15 students have graduated from UVSC with a ``Certificate in Leadership,'' 45 are enrolled in the 4-year integrated studies program with a leadership emphasis, and over 100 taking classes toward the certification program; the concurrent enrollment classes have increased from seven high schools to 10 high schools, with 13 more waiting to participate; ``No Greater Heroes'' has a waiting list of elementary schools wanting to participate; and the attendance at the annual conference has grown from a couple of hundred to several thousand. I commend the center for taking on these important projects. I am pleased to be able to share with my colleagues some examples of the fine work done by the center. I am very supportive of this program and commend it to my colleagues as an excellent example of educational innovation.

Mr. HATCH

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

Mr. HATCH. Mr. President, I wish to change the subject because I think it is important before we leave this Congress that I say a few words. We have all seen the news reports suggesting our friends on the other side of the aisle want desperately to turn the focus of the national debate back to the economy. I am glad to do so, but let it be a full and fair debate. I hope we can talk about the recession we have been through, the recovery that is now under way, what we have already done to grow the economy and, most importantly, what we Members of the Senate from both political parties propose to do about the economy in the future. Let us start by considering the shocks that have hit the economy since the last year of the Clinton Presidency. In the summer and fall of 2000, the dot-com bubble burst and high- tech spending fell precipitously, triggering a slowdown that was worsened by the horrendous terrorist attacks that shook our entire economy last year on September 11 and afterwards. Then about a year ago this week, we began discovering a few large companies have been massively deceiving their investors, deepening the malaise. Finally, to top off all this bad news, oil prices have hovered around the danger level of $30 a barrel because of war clouds in the Middle East. This chart shows that how our slump began during the summer of 2000. While it would not be fair to blame all these problems entirely on the Clinton administration, in my view, it is clear that the beginnings of this slowdown--what some have called the ``Clinton hangover''--occurred well before President Clinton took the oath of office. This is not just a partisan position or partisan judgment. As President Clinton's top economic adviser, Nobel Laureate Joe Stiglitz, recently said: The economy was slipping into recession even before Bush took office, and the corporate scandals that are rocking America began much earlier. That is what happened in the year 2000 right on up to our time today. One can see the red mark shows it began during the Clinton administration and continued for the first year of the Bush administration. While these problems did not begin on President Bush's watch, we are committed to working with the President to solve our economy's current problems. In of all the blows our economy suffered, consumer spending held up very well. New car and new home sales have stayed at record levels over the last year, and while times have been tough for some retailers, overall consumer spending has kept right on growing. Why? Because of last year's tax cuts. Which part of the tax cuts helped the most? Was it the rate cuts or rebate checks that kept spending growing steadily? Let's think about that for a moment. Was it the rate cuts or was it the rebate checks? Some Democrats complained that last year's tax cut did not have enough rebates; it did not have enough immediate stimulus, they said. Guess what? The numbers are in, and it turned out while rebate checks sure help families sleep better at night, they do not stimulate much spending. When the manna falls from Heaven, they do not just eat it, they store as much of it as they can. So when the rebates came, people did not spend most of the checks; only about a third of it. They saved most of the money, or they used it to pay down their debt. Those are good things to do, but I do not think we should be under any illusions that most of these rebate checks are spent at the local Wal-Mart. By contrast, the permanent rate cuts let people know the Government was going to let them keep more of their own money, not just this year, but for years to come. When people know their take-home pay is going up and that it is going to stay up, they feel more comfortable about spending today, tomorrow, and into the future. The lesson is clear: Tax rebates help spending a little bit, for a month or two, but a permanent income tax cut gives people a green light to spend because it helps them over a long term. A permanent income tax cut may not be glamorous, but it does work, and if we want to speed up consumer spending, the most effective way to do it is by speeding up the tax cuts. Even though consumer spending has held up, there are just not nearly enough good-paying jobs out there right now, and we all know it. I am seeing this in Utah where our State's economy has been hit harder than most by the current downturn. In fact, just today, Delta Airlines, which has a hub in Salt Lake City, announced thousands of layoffs. My heart goes out to these families impacted by these layoffs. Utah has a highly educated work force, and we have more high-tech and more tourism jobs than most States do. We saw Utah's unemployment rate rise from about 3 percent to almost 6 percent before coming back down toward 5 percent, a number that is still far too high. The way to bring back these lost jobs is to bring back investment spending. Businesses just have not been buying as much equipment as they used to, especially high-tech equipment. Investment spending started falling back in 2000, and while it has been recovering over the last few months, it is nowhere near the levels of 1999. Early this year, Congress saw that business spending had nosedived, and we took action. We enacted a temporary bonus depreciation provision giving companies a tax incentive to buy equipment sooner rather than later. This powerful tax incentive is based on legislation that I championed. Unfortunately, large corporate bureaucracies cannot turn on a dime, and many businesses had already worked out their spending plans before we managed to pass bonus depreciation, but it will help in the future. Since many companies only plan their equipment budgets once a year, we can expect to see business purchases come back up early next year, and that will be, in part, because of this provision. With that revival, the weakest pillar of spending will be strengthened. Some on the other side of the aisle have proposed speeding up and increasing the amount of bonus depreciation, and I think that is a great proposal. In fact, my original bonus depreciation proposal looks quite a lot like some of the Democratic depreciation proposals being discussed. In another major economic accomplishment this year, Congress joined with the President to enact two more pieces of strong pro-growth legislation: trade promotion authority and corporate accountability legislation. I worked together with Members of both Houses and both parties on the conference report because, as chairman of the Trade Subcommittee of the Finance Committee, I served on the conference for this bill. This report gave the President the much-needed authority to negotiate free trade agreements. As the President finalizes free trade agreements, first with Chile and Singapore, and then expanding across the world, we are going to reap real benefits from trade promotion authority. I can remember all of the fighting on the floor over whether we were going to do that or not. We know we should have done it, and we finally did. The American people will benefit from lower prices for Americans buying goods, services, and machinery; wider overseas markets for farm products, high-tech equipment and services; and higher wages for American workers, especially for workers in exporting industries. The corporate accountability bill passed this year is also going to help make sure stockholders are in charge of the corporation, not insiders with something to hide. It is going to make sure auditors serve the interests of the shareholders. But as I predicted on the Senate floor back in July, we now find ourselves locked in a fruitless debate, indeed a dangerous debate, over who can be the toughest on the public accounting profession. Republicans have an agenda for economic recovery and economic security. We know what we want. We can pass this agenda this week if we can get the majority to agree. I have already mentioned last year's tax rate cuts. Speeding up the date the remaining tax cuts take effect and making them permanent will have a powerful impact for good on the economy. We also want terrorism insurance to create good-paying construction jobs. Terrorism insurance has been delayed by the trial lawyer lobby, which insists on being able to sue businesses who are the victims of terrorism. I suspect that in the end they are probably going to win, even though that is a disastrous way of continuing to do business. As a result, we are going to find people who are totally innocent sued for punitive damages in the future. We want an energy bill that will reduce our dependence on foreign oil, push gas prices down, and encourage conservation, all at the same time. I joined with a number of my colleagues to sponsor a landmark provision, the CLEAR Act, in the energy bill that would change the transportation vehicle marketplace by giving tax incentives to cleaner- running alternative fuel and hybrid electric cars and trucks. Unfortunately, the energy bill is stuck in conference, partly because some conferees apparently will not accept an extra 10 million acres of permanent Alaska wilderness in exchange for oil exploration that would leave a footprint no larger than Dulles International Airport. That 10 million acres would become wilderness. It is clear that they are not really serious about having a good energy bill or reducing our dependence on Middle Eastern oil. If these decisions were motivated by love for the environment rather than by ideology, we would already have an energy bill and Alaska would have 10 million more acres of permanent wilderness. There are other good economic proposals that can and should be discussed in the coming months, proposals that could strengthen our economy now and restore to us another decade of exceptional growth. I am convinced that ending the double taxation of dividends should be an important part of any such plan. Our Tax Code rewards corporations for loading up on debt, and it slows our Nation's rate of capital formation and innovation. I think this has to end. I will now take a moment to address one of the most puzzling charges made against our President's economic policies. Some of our Democratic colleagues have claimed that last year's tax cut brought back the deficit and destroyed the projected 10-year surplus. Since fiscal year 2002 is over, we now have a pretty clear explanation of why we ran a deficit. The Congressional Budget Office is clear on this issue. We had a slowdown that began during the Clinton administration, and continued during the first year of the Bush administration. That hurt income tax revenues, while a stock slump hurt capital gains revenues. Let's look at this. How did CBO's fiscal year 2002 $313 billion surplus forecast become a $157 billion deficit? It was not the tax cuts. Look at this particular illustration. As we can see, the weakening economy caused 67 percent of the problem. New discretionary spending is $50 billion. That is 11 percent. The economic stimulus is $51 billion. That is 11 percent. The tax relief is $37 billion, or only 8 percent of this total pie that has literally eaten up the $313 billion forecast which has now become a $157 billion deficit. A lot of it has come from our spending in the Congress. In some respects, we are spending like drunken sailors. The fact of the matter is that the smallest part of it, other than the ``other,'' is the tax relief, which cost us $37 billion of the $313 billion. Last year's recession was real, and our slow recovery is leaving behind pockets of real suffering both in my home State of Utah and across the Nation. Without minimizing this suffering, let us put this in perspective by remembering just how bad recessions really have been in the past, as illustrated by this chart. In January of 1980, when we had a recession, the average unemployment rate during and after the recession was 7.4 percent. In the next recession, starting in July of 1981, it averaged 9.4 percent. In July of 1990, we had the beginning of another recession and unemployment averaged 6.8 percent. Since our most recent recession, beginning in March of 2001, unemployment has averaged 5.3 percent. It is 5.6 percent today, which is considerably less than these other recessive periods of time. These are 2-year averages of civilian unemployment rates beginning with the first month of recession. The source of this information is the National Bureau of Economic Research and the Federal Reserve Bank of St. Louis. It has been a lower recession unemployment rate--and when I used to be chairman of the Labor Committee, we saw figures that said if the unemployment rate is around 5 percent, there is basically full employment in the country. Now I am not saying 5.3 percent unemployment rate is full employment. It is not good enough for me, but the fact is it is less than the other recessive periods over the last 20 years, and that is a very important thing. As my friends on the other side of the aisle like to remind us, the search for jobs is where people really feel the bite of a sluggish economy. How does the old saying go? ``If your neighbor loses a job, it is a recession. But if you lose your job, it is a depression.'' So I think we should compare the unemployment rates during and after the last three recessions with the unemployment rate since March of 2001, when the most recent recession began. It comes as no secret that the job market often gets worse even after the economy starts growing again. Unfortunately, businesses want to be sure that their sector of the economy is going to keep growing before they take on more workers, and I cannot blame them for that. A glance at this chart makes it clear that while our unemployment rate has been far too high, nowhere near the lows of 4 percent that we saw a few years ago, we have done better than we could have hoped. I have not seen many of my colleagues making serious comparisons between this recession and previous recessions, and we can see why from this particular chart. There is just no comparison. During the back-to-back recessions of the early 1990s, when the Federal Reserve finally broke the back of inflation, unemployment rates hovered near 10 percent. During our last recession 10 years ago, we suffered from jobless rates much higher than anything we have seen today. Today's weak job market is real. It means Americans suffer through no cause of their own, and it is something we need to work together to fix. While we work to fix these problems, let us remember in our own lifetimes we have seen the face of deep recession. While there are regions of the country that face steep hurdles and devastated job markets, the Nation as a whole is seeing a recovery. For that, our Nation can be grateful. Our President's policies, the Federal Reserve's aggressive, preemptive rate cutting, combined with the flexibility of our free market system, keep unemployment rates much lower than in past recessions. By enacting more job-creating, growth-enhancing initiatives, we can do even better. Accelerated tax cuts, terrorism insurance, and an energy bill should all be part of our recovery agenda. We can do these this year, even though this is our last real day of this session. We still can get this done, since we all know we are coming back for a partial lame duck session. We do not need another economic forum. What we need is legislative action. It is pretty pitiful that the Senate has not enacted one non- defense appropriations bill--not one. For the first time in over 20 years, we do not have a budget. I will tell my colleagues the reason we do not have a budget. In the past, I can remember when we on this side were in the majority and had to come up with a budget, and it was really tough to do because we knew we would be subject to all kinds of cheap criticisms from others who wanted to score political points. But we always came up with that budget, and we endured the cheap political criticisms. I have to say I think part of the reason we do not have a budget today is that the other side is afraid we might use the same type of cheap criticisms on them that were used on us for all of these years. I hope we will not do that. I hope what we will do is work together in the best interest of our country. I am sure there are good ideas on both sides, and I hope we can work together to bring in all the good ideas we can find. The strength of our democracy, as the strength of our businesses and our families, comes from our willingness to listen to each other. After we listen and negotiate a compromise, we need to take action--action to restore the economy to its potential, action to restore a healthy job market, action to ensure that our workers are the most productive and best paid in the world. It is time for us to live up to our duties. The American people are waiting for action. I think we still have enough time, even though it may have to be during a lame duck session, to be able to get this done. One last thing. I, for one, am very disappointed that we were unable to get a prescription drug benefit bill passed. Everybody knew the tripartisan bill would have swooshed through the Senate Finance Committee. We were foreclosed from allowing that bill to come through the normal legislative process because it was known that it would have swooshed through and it would become the bill of merit on the floor and it would have passed the Senate. That bill had $70 billion more in it, in the final analysis, than what those on the other side asked for last year. Instead, we had a bill which was brought up pursuant to rule 14, which is a procedural mechanism on the floor which allows you to call up a bill once and, if it is objected to, then it goes on the calendar and on the agenda of the U.S. Senate. We had a bill called up that would have been probably twice as expensive as this $370 billion bill we had. It would have passed--our bill would have passed. The competing proposal was twice as expensive and never once had the final CBO scoring necessary for a bill of that magnitude on the floor of the Senate. It was pulled down because it clearly did not have the votes, where we did. We could have had the prescription drug benefit package for our seniors in this society, had it not been for politics. I, for one, lament that. We could have had it. We had Democrats, Republicans, and an Independent in support of that bill. Would everybody have been pleased with that bill? No, but it would have passed and would have passed overwhelmingly. Now we do not have a prescription drug bill for senior citizens, all because of the way this floor has been managed over the last year or so. I have to tell you I think it is going to be virtually impossible to pass it next year, especially if we are in a conflict with Iraq. That will have to take precedence and the spending for that will have to take precedence. Everybody knows that. Everybody knew those were the facts. This was the year to get that job done, and we had it done. I believe we could have gotten it through the House. As somebody who has been on the passing end of a lot of legislation over the last 26 years, I think I can speak with authority. We could have gotten it through the House as well, and it would be law today. So I, for one, think we have lost a tremendous opportunity, mainly because of politics and the hoped-for advantage that one side might have had over the other. Our side would have supported the tripartisan bill, and I think a considerable number of Democrats would have, too. But we don't control the floor and we were not able to get that bill up. I am disappointed because I think we should have done that. There are a lot of other things I wish we could have done during this year. Had we had a budget, we might have been able to. Had we had appropriations bills, we might have been able to. I just wish all our colleagues well. At the end of this session I have good will towards every person in this Chamber. I care for every Member of this body, and I will tell the public at large that most everybody in the Congress I know happens to be a good person who is trying to do the job to the best of their ability. But occasionally politics gets in the way and we do not get things done that should be done. This year has been a prime example of that, in my humble opinion. But I wish everybody well. With that, I yield the floor and suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to comment on the passage of H.R. 3394, the Cyber Security and Research Development Act. I want to specifically congratulate and thank Senators Allen and Wyden for proposing this measure and for working with me to address a few concerns I had relating to ensuring appropriate national security protections. This important legislation authorizes computer and network security research and development and research fellowships through the National Science Foundation and the Secretary of Commerce for the National Institute of Standards and Technology. This legislation is an important step in protecting our country's computer infrastructure, and will quickly bear fruit by increasing research and development in this critical area. Our country's computer infrastructure is critical to our nation's homeland defense. This measure is a much needed effort to improve our research and development efforts in this area by enlisting and bolstering research by our universities, colleges, and research entities. At the same time, I wanted to ensure that access to such critical cyber-research information is appropriately tailored to ensure that our national security interests are protected. Mr. President, I want to highlight the modifications that I proposed and were included in the bill. These include: (1) expanding the purposes for such grants to include research to enhance law enforcement efforts to detect, investigate and prosecute cyber-crimes, including those that involve piracy of intellectual property, and (2) ensuring compliance with the immigration laws by requiring that those who receive funds comply with United States immigration laws and are not from countries that sponsor international terrorism terrorism, unless the Attorney General and Secretary of States make an individualized determination that the individual is not a threat to our national security. Theft of intellectual property on the internet is becoming a serious threat to many in our creative community and one of our most important exports. Again, I am grateful that the authors of this legislation were willing to work with me to include these modifications and I strongly support enactment of this legislation into law.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to honor the achievements of my good friend and colleague, Senator Phil Gramm. After serving with him for 18 years, it is difficult to remember that our Texas colleague began his career as a Democrat. After listening to him here today, I can see he is ending his career by going out with a bang. Phil Gramm is one of the most effective Senators who has ever sat in this body. In fact, even though he started out as a Democrat, he actually became one of the most effective conservatives in this body and a fixture on economic issues and a man who deserves much of the credit for changing the attitude of Congress about budget and fiscal responsibility. I know I am not the only Member of this body who is deeply grateful for the Gramm-Rudman-Hollings deficit-control legislation that Senator Gramm poured his heart into creating and sustaining over so many years. Another landmark bill that bears his name and is changing the course of the nation for good is the Gramm-Leach-Bliley Financial Services Modernization Act of 1999. He brought his classroom skills to bear on more than one occasion, patiently explaining basic economics to his fellow Senators, again and again and again. I, for one, am grateful for the opportunity to have been one of his students. Senator Gramm is also one of the Senate's most honest and forthright members, never hesitant to tell you exactly what he is thinking. On more than one occasion, the senior Senator from Texas has approached me about bills on which we disagreed and said, in his distinct drawl, ``Orrin, you were one of the reasons I came to the Senate--to help you fight all those ridiculous liberal ideas. So I have to ask, what are you doing with this bill?'' And we all came to respect Senator Gramm when he joined the GOP ranks. The story is now legend, but compelling nonetheless. He was serving in the other body when he decided he no longer felt comfortable as a Democrat. Instead of simply announcing he was switching parties, he resigned his seat in 1983 and ran again in a special election as a Republican. He has served here ever since with, I think, the respect of both sides of the aisle. He thus eliminated any question that his decision was motivated by anything other than a realization that his beliefs no longer fit within the Democratic Party. Senator Gramm's dedication to the principles of a free society, his belief that free markets and limited government allow people to realize their full potential, his reminders that good intentions are no substitute for good policy--these have shown through in ample body of Senate achievement he will leave behind. Senator Phil Gramm's career is proof that good ideas can have a real impact on our country, as long as those ideas are combined with a mountain of hard work. Mr. President, I am sad to see my good friend leaving this body. I wish we could convince my friend to stay. I personally am going to miss him. I can only wish him the very best as he begins his new life outside of Senate. I am sure of one thing: wherever Phil Gramm goes or whatever he does, he is going to be a success. Phil Gramm is one of the brightest people who ever served in both Houses of Congress, and he is certainly one of the best people, as far as I am concerned.

Mr. HATCH

Mr. HATCH. Mr. President, as my colleagues are aware, I have agreed to cosponsor S. 3018, the Beneficiary Access to Care and Medicare Equity Act of 2002, because I believe it is imperative we act this year to correct deficiencies in Medicare payment levels that are certain to create hardships for providers and those they serve, beneficiaries. I want to take this opportunity to underscore concerns I have with Section 706 which deals with the process for development and implementation of Medicaid and CHIP waivers. I am sympathetic to the underlying concerns expressed by the sponsors of this provision, especially as they relate to coverage of childless adults under the CHIP program. CHIP was designed to address the needs of children of working parents who made too much money to qualify for Medicaid, but, many times, could not afford private health insurance. I believe that the integrity of the CHIP program must be maintained. For this reason, I have even opposed attempts to expand CHIP to cover pregnant women, because I believe funding should be devoted to providing coverage to uninsured children, preserving the original intent of this legislation. It should come as no surprise to my colleagues that I oppose expanding CHIP under a waiver to cover childless adults. However, there are those who do not share my views on this issue and I believe that they should be heard. There are those who believe that CHIP enrollment is not as high as it could be because parents are not covered by the program. They believe that one way to capture children under CHIP is to offer family coverage. I do not agree with that approach, but I do believe that there should be a debate on the issue. Before Congress adopts provisions which could limit both the Federal and State governments' ability to adopt innovative approaches to address the problem of the uninsured, we ought to have a thorough and comprehensive debate. The Senate Finance Committee should hold hearings on these important waiver issues prior to enacting legislation which could be detrimental to State flexibility and innovation. I strongly object to including a provision which is opposed by the Secretary of Health and Human Services and the National Governors Association in an attractive package of Medicare reimbursements and fiscal relief for the states. Both HHS and NGA have concerns with this provision because it limits a State's flexibility to provide expanded health coverage tailored to the specific needs of its residents. I believe that, as drafted, Section 706 would deter a state's attempt to provide health insurance coverage to those who are currently uninsured. Additionally, it is my view that Section 706 would not improve the waiver process, but would actually function as a disincentive for States to undergo an open dialogue with stakeholders as they go through the process of securing a Medicaid or CHIP waiver. Section 706 would require that 60 days prior to the date that a state submits a waiver or amendment application to the Secretary, the state must publish, for written comment, a notice of the proposed waiver that contains at least the following: projections regarding the likely effect and impact of the proposed waiver on any individuals who are eligible for receiving medical assistance or health benefits coverage. In addition, a State must make a statement regarding the likely effect and impact of the proposed waiver on any provider or suppliers of items or services for which payment may be made under the Medicaid or CHIP program. It would seem to me, that we are putting the cart before the horse here. Isn't it the purpose of a public comment period to determine the effects and impacts on individuals and providers? Aren't we setting the States up to be criticized for coming to pre-determined conclusions about the effects of a proposed waiver by requiring them to effectively develop these conclusions before the public has had a chance to weigh in on the matter? Section 706 goes on to require that the State must have one meeting with the state's medical care advisory committee and two public hearings on the waiver. I am somewhat confused by these provisions. It seems to me that rather than encouraging an open and comprehensive dialogue in the state over a proposed waiver, Section 706, if enacted, would curtail and truncate the process, effectively limiting input from the very individuals and groups which would be affected by the waiver. In short, to comply with Section 706, a State could conclude what the effects of the waiver would be prior to public comment, hold two perfunctory public hearings and be done. Officials in my State of Utah, in developing their waiver, did not need the Federal Government to come in and tell them how to reach out to stakeholders on this issue. I am informed that the state held meetings for 10 months prior to getting approval for their waiver with low-income advocates, providers, insurance companies, employers and state legislators. The state held a series of work conferences and community meetings on issues associated with Utah's waiver. The State had several legislative task force meetings which were open to the public as well as several budget hearings, also open to the public. Officials from my State who were overseeing the waiver process attended monthly meeting of advocate groups and met repeatedly with their medical care advisory committee. Now, it might be that other States contemplating a waiver might not need such a comprehensive public outreach effort. Other states could determine they should emulate such an approach. Is it really the role of the Federal Government to micro-manage this process? Section 706 would also require states to file copious records documenting detailed descriptions of the public notice and input process; copies of all notices, dates of meetings and hearings; a summary of the public comments; and, a certification that the state complied with any applicable notification requirements with respect to Indian tribes. If we are looking for ways to encourage unwilling states to reach out to the public for input, one of the least effective ways to do so, in my opinion, is to require States to jump through a bunch of bureaucratic hoops. This will not foster open debate nor will it encourage the states to try and draw a buy-in from stakeholders. Instead, in my opinion, it will create an atmosphere where the state will do the bare minimum in order to meet the requirements and no more. This is not the way to promote outreach efforts and a free-flowing exchange of ideas. In fact, I believe that if enacted, Section 706 will stifle such an approach. In considering the role of HHS relative to the waiver process, I am informed that HHS Secretary Tommy Thompson has written in opposition to Section 706. I share the Secretary's concerns that, as drafted, this section would leave HHS vulnerable to costly and burdensome lawsuits. I agree with Secretary Thompson that State and Federal resources should be spent addressing the issue of the uninsured and should not go, instead, to fending off legal challenges from every national advocacy group who did not get exactly what they wanted. Finally, one of the facts that gets overlooked in these waiver discussions is that we have 41 million uninsured Americans and states are trying to cover them. This is really the bottom line, here, the states are trying to find ways to get some coverage to Americans who would otherwise have no coverage. Rather than looking for ways to inhibit the states from accomplishing this, we should be making it easier for them. I look forward to working with my colleagues on the Finance Committee to accomplishing this important goal.

Mr. HATCH. Mr. President, today I rise to join my colleagues on the Senate Finance Committee in cosponsoring S. 3018, the Beneficiary Access to Care and Medicare Equity Act of 2002. Although this bill does not include all that I would have wanted, and indeed includes some provisions with which I disagree, on balance, I believe it is necessary to pass such a bill this year in order to provide needed assistance to both Medicare providers and beneficiaries. I would like to take this opportunity to express my strong support for provisions contained in S. 3018 which increase reimbursement rates for physicians, skilled nursing facilities and home health agencies. Physicians' Medicare reimbursements were reduced by approximately 5 percent in 2002. Unfortunately, the estimates used by the Centers for Medicare and Medicaid Services, CMS, when calculating the physician payment formula were erroneous in some cases, and, regrettably, physicians will continue to be subjected to large cuts in future years if Congress does not take appropriate action. This is simply not fair to physicians or their patients. Doctors in Utah have been calling me about this issue since late last year and have explained to me over and over again that these reductions will have a lasting, negative impact on patient care. Some Utah physicians have told me that they will no longer accept Medicare patients or, even worse, are thinking about dropping out of the Medicare program all together. And what impact does that have on patients, especially those in rural areas? In my opinion, there is no question it could lead to reductions in the number of Medicare providers in rural areas. And, for those who are left, it will be virtually impossible to spend quality time with patients. Is this our goal? I do not think so. And I will be doing everything possible to increase reimbursement rates to physicians to help them continue to provide the high quality care that patients so deserve. Another important component of S. 3018 is the valuable assistance this bill provides to rural states, such as my home state of Utah. S. 3018 incorporates many of the recommendations included in the Medicare Payment Advisory Commission's, MedPAC, 2001 report on rural health care. This report found that beneficiaries living in rural areas encounter more obstacles when receiving health care than those who live in urban areas, primarily due to cost barriers. In addition, the MedPAC report stated that rural hospitals have had lower Medicare inpatient margins than urban hospitals throughout the 1990s. This gap has widened from less than a percentage point in 1992 to 10 percentage points in 1999. These statistics not only apply to inpatient care, but also to most Medicare services in rural regions of our country. In the end, the report states the obvious, current Medicare payment policy places rural communities at a distinct disadvantage and changes are necessary. S. 3018 takes steps toward addressing these important concerns and attempts to provide equity between rural and urban Medicare providers and patients. In my book, this is sorely needed. In addition, it is important to me that Medicare funding for Skilled Nursing Facilities, SNFs, is included in S. 3018. I have heard from facilities across my State about the dire financial situation many SNFs are facing due to reduced Medicare spending in fiscal year 2003. SNFs care for our nation's most vulnerable seniors and provide valuable medical assistance to these Medicare beneficiaries and their families. I have been working with both Finance Committee Chairman Senator Max Baucus and Ranking Republican Chuck Grassley on this important matter. While I am pleased that the Senate Medicare provider give-back bill provides more money to SNFs than the House-passed bill, I believe that the funding level for SNFs should be even higher. I intend to continue to work with my House and Senate colleagues on improving the Medicare reimbursement rates for SNFs. I also am pleased that S. 3018 includes provisions that will eliminate the 15 percent reduction in home health payments. There is no question in my mind that home health services are among the most valuable Medicare provides. Home health agencies are providing compassionate, caring services which, quite simply, help keep beneficiaries out of more costly institutional settings. Home health agencies across my State have urged me to support the elimination of this cut. They have shown me how these potential cuts could cause many home health providers in Utah to go out of business. Over my Senate career, I have been extremely supportive of home health services, and will continue my advocacy for this important program. The preceding things having been said, one great concern that I have with S. 3018 is the impact that this legislation could have on small durable equipment manufacturers in Utah. The bill contains provisions on competitive bidding which my constituents believe could drive them out of business. On the one hand, I do recognize the need to ensure efficiency in spending for scarce Medicare dollars. On the other hand, though, I am deeply concerned about the effect this legislation could have on these companies. I am working with CMS officials and my Utah manufacturers to resolve concerns that have been raised about the competitive bidding program included in this bill and will do everything possible to protect small durable medical equipment companies in Utah and across the country. Let me also mention the Medicaid program. There is no secret that the majority of States are running deficits in this program, expected to reach $58 billion during this fiscal year. Adding to the urgency is the fact that States have also used up two-thirds of their cash and their ``rainy day'' funds. According to a recent survey by the National Conference of State Legislatures, more than 40 States had instituted some kind of spending freeze or an across-the-board cut and 22 states have cut Medicaid funds. Included in the Baucus-Grassley legislation is a provision that would direct some funds back to the States for their Medicaid programs. This legislation increases the Federal medical assistance percentage by 1.3 pecent for 12 months. Additionally, it directs $1 billion in state fiscal relief grants for Fiscal Year 2003. In a perfect world, this is not the approach I would have preferred we take to address the issue of fiscal relief for States. I have doubts about the advisability of using an entitlement program to address a shortfall in State funds. The precedence for linking an entitlement program to the economy is unsound policy, in my opinion. If we had adopted that policy years ago and were consistent in following it in good times as well as bad, FMAP rates would have been lowered in the 1990s when States were experiencing surpluses, resulting in the current FMAP rates being much lower than they are now. I am also very concerned that this ``temporary fix'' will end up becoming permanent. Both the Federal Government and the States do not have the best record when it comes to cutting off a funding source we may have come to rely upon. However, I do recognize that States are being forced to cut back essential services to low and middle income individuals and families as a result of States' considerable budget deficits. Additionally, this legislation includes a much-needed fix for the Children's Health Insurance Program, CHIP. Without this provision, some $2.8 billion of unspent CHIP funds are scheduled to revert back to the Treasury. It is critical that States are able to access these funds. Some States experienced significant challenges when implementing their CHIP programs. However, they are meeting that challenge and have ``ramped up'' considerably. They now are in a position to draw down these dollars. Given these uncertain economic times, we should not deprive states of funding to help finance the social safety net. I also believe the provision prohibiting States from using their CHIP monies to cover childless adults is wise policy. While I am extremely sympathetic to the needs of the uninsured, it is important to note that Senator Kennedy and I worked very hard to pass the CHIP program as a way of helping the 10 million uninsured children in the country. As the title reflects, the bill was solely directed at ``Children.'' Indeed, it was not the health insurance program, HIP, nor the Adult Health Insurance Program, AHIP, but the Children's Health Insurance Program, CHIP. If we would like to help needy, uninsured adults, by all means, let's look at how we can accomplish that. In fact, Senator Wyden and I have recently introduced a bill to jump-start that discussion. However, in the meantime, we should not distort the focus of a program that is working well to help its intended participants and lose the sense of mission that has made it so effective. Finally, I have serious concerns about the provisions in S. 3018 on the Section 1115 waiver process for Medicaid and CHIP waivers. I will be submitting a separate statement for the record which will outline my thoughts on this issue in more detail. In conclusion, I believe that passage of S. 3018, the Beneficiary Access to Care and Medicare Equity Act, is critical for both Medicare providers and beneficiaries. This legislation, while not perfect, will provide access to quality and affordable health care to Medicare beneficiaries across the country. I urge my colleagues to support this bill and, in my opinion, we must pass this legislation before we adjourn. Partisan politics needs to be put aside because this issue is much too important to both Medicare beneficiaries and providers. Medicare providers, and most importantly, the beneficiaries they serve, are depending on us to get this job done, once and for all. Let's not let them down.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to speak in support of the conference report to the ``Help American Vote Act of 2002.'' First of all, I'd like to thank Chairman Dodd and Senator McConnell, for their leadership and extraordinary efforts that have led us to final consideration of this legislation today. Also, I'd like to note that arriving at this point has not been easy for the members of the Conference, nor for their staffs, and I appreciate the hard work by everyone that led to this compromise. That being said, I would be remiss if I failed to mention my concern about the impact that enactment of this legislation could have on States and localities, most of whom are experiencing extreme budget shortfalls. I raised this issue when we first debated this legislation in the Senate and I am disappointed that it has not been addressed in the conference report. Title III of the Help America Vote Act of 2002 includes a series of new uniform and nondiscriminatory requirements for election technology and administration. These requirements include voter verification of votes cast, a paper record for auditability and recounts, and accessibility for invividuals with disabilities. If enacted, these requirements would apply to each voting system used in an election for Federal office. There is no question that these provisions have far- reaching consequences. Mr. President, I appreciate the intent underlying this legislation, which is that the system must be uniform in nature across the entire country, if it is to be successful in accomplishing the goal of election reform. I also appreciate the Conference Committee's stated desire that the program be fully funded. That being said, I must ask my colleagues the difficult question: What if it isn't fully funded? We must consider the consequences if a future Congress fails to provide adequate funding for this legislation. Mr. President, I stated my objections to the unfunded mandates in this conference report back in February when we first considered this legislation. Today, I am once again stating my strong objection to even the mere possibility that the burden of funding these mandates might fall upon the States. Having expressed this concern, I also want to mention that this conference report makes several necessary and important changes to our current system of voting, which is burdened with problems ranging from claims of voter fraud to a lack of accessible voting devices for many disabled Americans. This conference report also includes an important Hatch-Leahy Internet voting study that will lay the groundwork for integrating new technology into the political process. As Americans, we have the right to participate in the greatest democracy in the world, and most will agree that the act of voting is the bedrock of our democratic society. Americans take pride in the role they play in shaping issues and determining their leaders, and yet, we see that voter participation in recent years has decreased among people of every age, race, and gender. I find these statistics both disappointing and tragic because, as Thomas Jefferson stated, ``that government is the strongest of which every man himself feels a part.'' Why is voter turnout so low? Of the 21.3 million people who registered but did not vote in the 1996 election, more than one in five reported that they did not vote because they could not take time off of work or school or because they were too busy. Can technological advances, like the Internet, increase participation in the electoral process by making voter registration easier or by simplifying the method of voting itself? As the elected representatives of the people, we should consider every option available that might help involve more of our country's citizens in America's democratic process. Federal, State and local governments are duty bound to encourage all eligible Americans to exercise their right to vote. In the past, attempts have been made to increase voter registration and turnout. Unfortunately, these attempts have met with limited success. The Motor Voter Act of 1993, for example, attempted to increase voter participation by permitting the registration of voters in conjunction with the issuance of driver's licenses. According to recent U.S. Census Bureau reports, 28 percent of the 19.5 million people who have registered to vote since 1995 have done so at their local Department of Motor Vehicles. Notwithstanding this simplified voter registration procedure, voter participation continues to decline. Although registering to vote at the DMV generally is more convenient than other methods of registration, a substantial portion of registered voters nevertheless continue to fail to register to vote and fail to go to the polls on election day. Voting via the Internet has been suggested as one possible solution to the problem. The Internet has revolutionized the way people communicate and conduct business by permitting millions of people to access the world instantaneously, at the click of a mouse. The Internet has already increased voter awareness on issues of public policy as well as on candidates and their views. In the future, the Internet may very well increase voter registration and participation, and thereby strengthen our country's electoral process. Mr. President, as many of us have seen in the recent past, more and more States are looking at ways to utilize the Internet in the political process. Proposals include online voter registration, online access to voter information, and online voting. State and local officials around the country are anxious to use the Internet to foster civic action. I think that this is a positive step. In fact, today many States already allow for portions of the voter registration process to be completed online. For example, the Arizona State Democratic Party allowed online voting in the 2000 presidential primary and nearly 36,000 Arizona Democrats took advantage of this opportunity. We can anticipate that this trend toward online voting will continue. Real questions remain, however, as to the feasibility of securely using the Internet for these functions. How can we be sure that the person who registers to vote online is whom he or she claims to be? How can we ensure that an Internet voting process is free from fraud? How much will this technology cost? There are also important sociological and political questions to consider. For example, will options like online registration and voting increase political participation? Can the Internet be equitably used in the political process? We must be carefully evalate the issues that will arise as the civic privilege of voting meets with technological advances. The original study I proposed would have created a special commission to conduct the study, which would have comprised of various experts ranging from First Amendment and election law experts to technical experts on the Internet and cyber-security. While this type of Commission in not part of this final conference report, it is my hope that the Commission will nonetheless call upon advisors with special expertise in these areas. Proponents of ``electronic voting'' (so-called e-voting'') contend that there are numerous advantages to the emerging ``cyber'' political participation, including the immediate disclosure of campaign contributions, an increase in the number of grassroots volunteers, and the creation of a more accessible forum for political advertising. Skeptics assert, to the contrary, that e-voting would only serve to decrease ``real'' electoral participation, place personal privacy at risk, and pave the way for election fraud. The late Senator Sam Ervin opposed simplifying voter registration and voting, stating that he did not ``believe [in] making is easy for apathetic, lazy people'' to vote. As we seek to ensure equal access to the voting place and integrity of the voting process, it would be irresponsible for us to ignore the potential effects, both good and bad, that new technology may have on the political process. As I stand before you today, Mr. President, I do not know whether online voter registration and e-voting will halt the decline in voter participation. I do not know whether online voting registration and e-voting even is wise. I firmly believe, however, that these issues deserve serious examination as we seek to ensure that our democratic republic engages as many citizens as is possible. I am pleased that the Hatch-Leahy provision will enable the study of forward-looking measures that will ensure our ability to properly integrate new technology in the political process. In closing, Mr. President, I reiterate my concern that this Conference Report is an unfunded mandate on already overburdened states. However, I must look past that serious concern, and vote for this conference report because of the important changes it makes to our current system. No American who has exercised the right to vote should ever have to wonder if his or her properly cast vote will be counted. We must preserve the integrity of the voting process and I, again, commend the efforts of those who worked this compromise. Further, I believe that the Hatch-Leahy Internet voting study is an important step forward in ensuring the legitimacy of the voting process, and serves as a major enhancement to the conference report. I urge my colleagues to join me in voting for this measure.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce ``Feed America Thursday,'' a resolution which designates November 21, 2002, the Thursday before Thanksgiving Day, as ``Feed America Thursday.'' This resolution encourages Americans to sacrifice two meals on November 21 and donate the money they would have used for food to a charity or religious organization of their choice. The charities and churches, in turn, are encouraged to feed the hungry with the funds received. ``Feed America Thursday'' will not only encourage Americans to help those in need, it will encourage a spirit of selflessness and sacrifice vital to our strength as a nation. Each day people in our Nation suffer due to hunger. The United States Department of Agriculture recently reported that 33 million Americans, 13 million of whom are children, live in homes that do not have an adequate supply of food. Hunger among children is especially devastating because it has a serious impact on physical growth and brain development. The contributions this resolution encourages will serve the needs of those who suffer from hunger in our Nation, especially the children. This resolution will not only help alleviate hunger, it will both affirm and restore the spirit of giving in our society. Hunger affects people from every state and in all age groups. I ask every American to join me in feeding the hungry and affirming the values that make our Nation great. This resolution, if passed, will provide food to the hungry and hope to our nation.

Mr. HATCH

Mr. HATCH. Mr. President, I ask the Senator from West Virginia to allow me 5 minutes to respond.