Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to speak regarding the proposed national nuclear waste repository at Yucca Mountain, NV. After serious consideration of this issue over the last several years and after carefully studying the track record of the nuclear industry in the United States, I have concluded that I will not stand in the way of sending this waste to a permanent repository at Yucca Mountain. I also understand the reservations expressed by many of my colleagues in this Chamber, and I have certainly taken such considerations into account in making my decision. Utahns have a right to be skeptical about government promises with regard to the handling of nuclear materials. In Utah, we have had more than our share of victims from government activities relating to atomic testing and the uranium industry. I have met with too many Utahns who are suffering needlessly. These Utahns were my inspiration when I passed the Radiation Exposure Compensation Act through Congress and when I improved this legislation a few years ago. Over the years, the act has provided compensation to thousands of downwinder victims. One of the top considerations in my decision on this issue has been the future of a proposal for a temporary storage site on the Skull Valley Goshute Indian reservation in Utah. Skull Valley has been targeted by a private consortium of nuclear electric generators as a temporary site for nuclear waste en route to Yucca Mountain, NV. I have concluded that if the plan to send high level nuclear waste to Yucca Mountain is not approved, Skull Valley will likely become the targeted alternative for permanent storage even though it is a private project only being considered as a temporary facility. I have many concerns regarding the proposed Skull Valley site. Chief among these is that it would pose a serious threat to the nearby Utah Test and Training Range, which is one of the most important bombing ranges available to our military. The dangers involving live ordnance or aviation accidents in the vicinity of the proposed above-ground nuclear storage casks present an unacceptable risk. Secretary Abraham of the Department of Energy has made it clear to me that the Department will not reimburse the nuclear industry for storing nuclear waste at Skull Valley. By not funding the Skull Valley site, the Department of Energy provides a significant incentive for generators of high level nuclear waste to find solutions to storage problems either on-site or to send materials directly to the permanent site proposed at Yucca Mountain. Also a top concern for me and many Utahns has been the issue of the safe and secure transportation of these materials through Utah as they travel to Yucca Mountain, NV. As you may be aware, well over 80 percent of the high level nuclear waste proposed to be stored in Yucca Mountain is projected to travel through populated areas of Utah. Only after receiving a firm commitment from Secretary Abraham that the Department of Energy will work with the State of Utah to formulate an enhanced and updated transportation plan do I feel confident in casting this vote today. The plan will address operational procedures, additional emergency first responder training, and coordination efforts between State governments and the Department of Energy regarding the safe transit of nuclear materials to Yucca Mountain. I would like to make it clear that the Utah congressional delegation will closely monitor the development of this updated transportation plan. In closing, I want to underscore how difficult this decision has been for me. I could never support any policy that would place Utahns at risk, and I believe that my decision to support the Yucca Mountain project is consistent with that. This decision has come down to my commitment to fight against the ill-advised and under-equipped facility proposed for Skull Valley, UT, and a firm commitment from the Department of Energy concerning the safe and secure transportation of these materials. With these strong commitments from Secretary Abraham, I have decided that I should not stand in the way of sending this waste to its permanent resting place in Yucca Mountain.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to join with my friend and colleague from New Jersey in introducing a bill to improve the tax treatment of U.S.-based multinational companies. It is apparent that our international tax code is deeply flawed. The current wave of companies reincorporating in Bermuda, the foreign sales corporation debacle, and the trend of tax-motivated foreign takeovers all provide abundant evidence that Congress needs to act to make our international tax rules friendlier to American-based companies. The bill we are introducing today is one that I consider to be a down-payment on the fundamental reform that our international tax system demands. The bill will reduce, but unfortunately will not eliminate, the double taxation of international income that occurs far too often. This double taxation is just one of several serious problems with our international tax rules. The threat of double taxation, where an American corporation ends up paying corporate taxes to both the United States and to a foreign country on the same income, discourages U.S. firms from investing overseas. And since U.S. multinationals provide millions of America's best-paying domestic jobs, anything that discourages overseas direct investment ends up hurting the take-home pay of our nation's workers. Our bill has two provisions. The first would reform the carryforward treatment of foreign tax credits. The Internal Revenue Code was originally designed to make sure that U.S. corporations investing overseas are not subject to double taxation by a foreign nation and the U.S. on the same income. It does this through the availability of a foreign tax credit. If this system worked well, then American businesses would seldom or ever face this kind of double taxation. However, the system most emphatically does not work well. For example, American businesses are only allowed to use these foreign tax credits when their U.S. operations are profitable. As a result, when the U.S. side of the business is doing badly, firms are unable to immediately use the foreign tax credits. While the current tax law allows businesses to carry excess foreign tax credits forward for up to 5 years, that timetable is unrealistic. An expanding business, with high domestic expansion costs and low domestic profits, can easily go through 5 years of losses, and never get a chance to use those tax credits. Once the 5-year period has expired, the credits are gone forever, and the result is double taxation, the threat of which discourages firms from taking on otherwise profitable overseas investment projects. If we want American businesses to take the long view, a 5-year carryforward just is not long enough. The legislation Senator Torricelli and I are introducing today will extend that horizon to 10 years. If enacted, it would give U.S. firms a much better search throughout the world for profitable investment projects. And again, profits earned by U.S. companies throughout the world generally translates into more and better-paying jobs for Americans. Our second proposal would eliminate our tax code's inhospitable treatment of international joint ventures. In many developing countries with rules and restrictions on foreign ownership, joint ventures are the only way to get things done. Our current-law tax treatment of these joint ventures, known as 10/50 companies because between 10 and 50 percent of the joint venture is owned by the U.S. company--is indefensible. Ordinarily, our tax code adds together tax attributes from different divisions of the same firm. For example, if one division of a company loses a hundred dollars and another division earns a hundred in profits, we offset the gain and the loss and assess no tax liability. Unfortunately, when it comes to these 10/50 companies, the tax law applies a separate foreign tax credit limitation to each venture. This increases the cost of doing business for the U.S. firms competing abroad because it makes it harder for firms to use their foreign tax credits and also adds a great deal of complexity. The result? Double taxation once again. And once again, our tax code discourages U.S. firms from jumping on profitable investment opportunities, because of the very real threat of double taxation. When American businesses are considered overseas investment opportunities, we do not want that decision to turn on the arcane details of U.S. tax law--we want a code that is fairer, simpler, and most of all, helps our companies better compete in the global marketplace. The bill we are introducing today will not fix all of our tax code's many problems in the international area, but it is an excellent start. I urge our colleagues to give their consideration to this important piece of legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to join with my friend and colleague from New Jersey in introducing a bill to improve the tax treatment of U.S.-based multinational companies. It is apparent that our international tax code is deeply flawed. The current wave of companies reincorporating in Bermuda, the foreign sales corporation debacle, and the trend of tax-motivated foreign takeovers all provide abundant evidence that Congress needs to act to make our international tax rules friendlier to American-based companies. The bill we are introducing today is one that I consider to be a down-payment on the fundamental reform that our international tax system demands. The bill will reduce, but unfortunately will not eliminate, the double taxation of international income that occurs far too often. This double taxation is just one of several serious problems with our international tax rules. The threat of double taxation, where an American corporation ends up paying corporate taxes to both the United States and to a foreign country on the same income, discourages U.S. firms from investing overseas. And since U.S. multinationals provide millions of America's best-paying domestic jobs, anything that discourages overseas direct investment ends up hurting the take-home pay of our nation's workers. Our bill has two provisions. The first would reform the carryforward treatment of foreign tax credits. The Internal Revenue Code was originally designed to make sure that U.S. corporations investing overseas are not subject to double taxation by a foreign nation and the U.S. on the same income. It does this through the availability of a foreign tax credit. If this system worked well, then American businesses would seldom or ever face this kind of double taxation. However, the system most emphatically does not work well. For example, American businesses are only allowed to use these foreign tax credits when their U.S. operations are profitable. As a result, when the U.S. side of the business is doing badly, firms are unable to immediately use the foreign tax credits. While the current tax law allows businesses to carry excess foreign tax credits forward for up to 5 years, that timetable is unrealistic. An expanding business, with high domestic expansion costs and low domestic profits, can easily go through 5 years of losses, and never get a chance to use those tax credits. Once the 5-year period has expired, the credits are gone forever, and the result is double taxation, the threat of which discourages firms from taking on otherwise profitable overseas investment projects. If we want American businesses to take the long view, a 5-year carryforward just is not long enough. The legislation Senator Torricelli and I are introducing today will extend that horizon to 10 years. If enacted, it would give U.S. firms a much better search throughout the world for profitable investment projects. And again, profits earned by U.S. companies throughout the world generally translates into more and better-paying jobs for Americans. Our second proposal would eliminate our tax code's inhospitable treatment of international joint ventures. In many developing countries with rules and restrictions on foreign ownership, joint ventures are the only way to get things done. Our current-law tax treatment of these joint ventures, known as 10/50 companies because between 10 and 50 percent of the joint venture is owned by the U.S. company--is indefensible. Ordinarily, our tax code adds together tax attributes from different divisions of the same firm. For example, if one division of a company loses a hundred dollars and another division earns a hundred in profits, we offset the gain and the loss and assess no tax liability. Unfortunately, when it comes to these 10/50 companies, the tax law applies a separate foreign tax credit limitation to each venture. This increases the cost of doing business for the U.S. firms competing abroad because it makes it harder for firms to use their foreign tax credits and also adds a great deal of complexity. The result? Double taxation once again. And once again, our tax code discourages U.S. firms from jumping on profitable investment opportunities, because of the very real threat of double taxation. When American businesses are considered overseas investment opportunities, we do not want that decision to turn on the arcane details of U.S. tax law--we want a code that is fairer, simpler, and most of all, helps our companies better compete in the global marketplace. The bill we are introducing today will not fix all of our tax code's many problems in the international area, but it is an excellent start. I urge our colleagues to give their consideration to this important piece of legislation.

Mr. HATCH

Mr. HATCH. Madam President, I rise today to address the Senate on an increasingly important topic: the security of the Internet, and specifically, the security of the e-mail we send across the Internet. During my service on the Judiciary Committee I have held and attended a number of hearings on Internet oversight, and on the development of related legislation. Despite a thinning in the ranks of Internet focused companies, the Internet of course continues to become a more and more important part of our economic and personal lives. In the wake of the September 11th and anthrax attacks, much of our attention has been focused on national security issues. The interruptions in traditional communications systems like the phone and traditional mail systems underscore the wisdom of the founders of the Internet, which began as a Defense Department project to develop a communications system that would be flexible and decentralized enough to withstand attacks that might cripple other systems. Internet technology is continually changing, and we need to be aware of its capabilities as well as any signs of vulnerability that can be exploited by those bent on using Internet access to attack the integrity of communications or vital data. In particular, since the anthrax attacks the nation has come to rely even more heavily on e- mail. There is no doubt that trust and confidence in e-mail, especially between businesses and consumers, is critical to the vital role such mail has played during recent months in keeping the channels of commerce and communication open despite blows to telephone service and traditional mail. Yet, the Internet is vulnerable in its own ways. The Internet itself can be used by terrorists as well as by those of good intentions. While e-mail cannot be used by criminals and terrorists to spread harmful biological or chemical agents, there are risks in the way most e-mail is generated and transmitted. We have all been familiar with the various viruses that have been sent via e-mail and affected many computer systems. Among some of the risks are loss of privacy through unauthorized access to e-mail in transit and through invasions of e- mail host databases. Another technique is ``spoofing,'' in which messages are sent purporting to be from a trusted sender in order to deceive the recipient, especially individual consumers and other citizens. We are increasingly threatened by viruses and other malicious code that can be carried on e-mails and unwittingly activated by the recipient. We need to review industry's ongoing efforts to answer these challenges, and assess what individual consumers and policy makers can do. Some of these threats are familiar, others are just emerging. For example, by sending messages with spoofed false send identities and misleading subject identifiers, hackers and unethical marketers can overcome the reluctance of even experienced e-mail recipients to open mail from unknown sources. As users are hurt or inconvenienced by falsified messages, their trust and confidence in the medium is damaged, and the usefulness of e-mail for all legitimate senders declines. We addressed some of these concerns in the PATRIOT Act last year, as we included a number of reforms to our computer fraud and abuse laws. It will be easier to investigate and prosecute unauthorized access to computer systems and to prevent cyberattack with these changes. America has deep strategic interests in advancing the Internet, and especially its most frequently used service: e-mail. I am hopeful that, and have read about, new technologies and practices that can help improve sender accountability for e-mail, empower recipients to screen e-mail by assuring them of its real sender, and deliver on the promise of greater privacy for personally identifiable data. It is important that we continue our efforts to keep our laws updated with new technologies and threats that could be posed using such new technologies. We should also take actions to motivate industry and the public where more needs to be done. Over the years, the public has come to value e-mail's convenience and speed, and to trust it as an alternative to the traditional postal envelope.

Mr. HATCH

Mr. HATCH. I am happy to yield for such purpose.

Mr. HATCH. Excuse me?

Mr. HATCH. Mr. President, I renew my request to set aside the Nelson amendment, and send an amendment to the desk.

Mr. HATCH. Mr. President, instead of doing that, I ask unanimous consent that we set aside the pending amendment, and I will offer this as a first degree.

Mr. HATCH. Then I will call up the amendment and offer it as a second-degree amendment.

Mr. HATCH. Mr. President, on December 5, 2001, the Senate ratified two extremely important international treaties, the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism, both of which further our efforts in the worldwide war on terrorism. Under the terms of these treaties, which were negotiated under the auspices of the United Nations, the United States and the other countries who are signatories to the treaties, have obligated themselves to prohibit acts of terrorism, or in support of terrorism, within their national borders. The signatories to these treaties are committed to fighting the global war against terrorism. I rise today to offer an amendment that would implement the terms of these treaties by creating new criminal offenses for terrorists who detonate bombs in public places, and for those individuals who aid terrorists by providing or collecting funds for use in terrorist activities. I had hoped that there would be no need for such an amendment today. There is bipartisan support for passing implementing legislation. I commend Senator Leahy for supporting almost identical legislation that I am presenting and attempting to pass such legislation just last night. The bill was cleared on the Republican side. However, I understand that the Democrats refused to pass it. That is most unfortunate, and I am disappointed in the Senate's failure to act. This is critical legislation that we must enact promptly. As I have already stated, the Senate already ratified these treaties on December 5, 2001. the House of Representatives acted soon thereafter, on December 19, 2001, to pass a bill, H.R. 3275, which is identical to the amendment I am offering today. There has been overwhelming, bipartisan support for this legislation. H.R. 3275 was passed by a vote of 381-36. For one reason or another, however, the bill has been stalled in the Senate. I urge my colleagues to give their unanimous support to this amendment. The President of the United States, as well as Treasury Secretary Paul O'Neill, Secretary of State Colin Powell, and Attorney General John Ashcroft, have all voiced support for this implementing legislation. Indeed, we have an obligation under the treaties we ratified to enact this legislation. Here is what my amendment would do. It would meet our obligations under the two treaties by prohibiting certain acts within our borders. With respect to the Terrorist Bombings Convention, the legislation would prohibit delivering or detonating an explosive or other lethal device in a public place, a transportation system, or a State or government facility. With respect to the Terrorist Financing Convention, the legislation would prohibit providing or collecting funds with the knowledge or intent that such funds be used, in full or in part, to finance an act of terrorism. Mr. President, it is essential--now more than ever--that the United Sates maintain its position at the forefront of nations in opposition to terrorism. This legislation fulfills our obligations under the treaties we already have ratified. Identical legislation has already passed the House of Representatives. So I sincerely hope that we will adopt this amendment here today, and on its own, so that we can deliver it to the President to sign and thereby continue to lead the world in the fight against terrorism. Now, could I ask the Parliamentarian, is it possible for me to offer this amendment as a second-degree amendment to the Nelson amendment?

Mr. HATCH. Will the Senator yield for a unanimous consent request?

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

Mr. HATCH. My colleagues from Kentucky and Connecticut have already referred to this letter, but I would like to highlight a few of the specific points conveyed in that letter. Quoting the letter: In the first quarter of this year, commercial real estate construction was down 20 percent. The disruption of terrorism coverage makes it more difficult to operate, acquire, or refinance property, leading to diminished bank lending for new construction projects and lower asset values for existing properties. The Bond Market Association has said that more than $7 billion worth of commercial real estate activity has been suspended or cancelled due to the lack of such insurance. Without such insurance, the economic impact of another terrorist attack would be much larger, including major bankruptcies, layoffs and loan defaults. This letter really underscores the serious ramifications to our economy that have resulted from a lack of coverage for terrorist acts and supports congressional action in this area. However, it seems to me we ought to do it in a responsible manner. The letter goes on to state: One important issue for the availability of terrorism insurance is the risk of unfair or excessive litigation against American companies following an attack. Many for- profit and charitable companies have been unable to obtain affordable and adequate insurance, in part because of the risk that they will be unfairly sued for the acts of international terrorists . . . It makes little economic sense to pass a terrorism insurance bill that leaves our economy exposed to such inappropriate and needless legal uncertainty. In the event of a terrorist attack it is contrary to commonsense to place unlimited exposure on companies--who are themselves victims of that attack--for the criminal acts of third parties, the terrorists. I do not suggest that we should limit the recovery of economic damages of an injured victim if there is culpability on the part of a business. However, we must provide some stability in the litigation process by streamlining a Federal cause of action and not allowing punitive damages unless criminal conduct is proven, as the distinguished Senator so aptly argued in the prior amendment. Punitive damages are designed to punish the defendant, not compensate the victim. I ask my colleagues, is it fair to punish a defendant business for the criminal acts of a third party? The President may well veto any measure that unreasonably exposes taxpayers and fails to provide stability to our economy. We need to act in this area, but if we fail to do so in a responsible manner, legislation may never be enacted and we will have failed in our responsibility. My colleague from Kentucky, Senator McConnell, has offered an amendment that I think is both reasonable and necessary to ensure that we address this issue in the proper and most effective manner. His amendment provides for a Federal cause of action and consolidation of multiple actions relating to the same event by the panel on multidistrict litigation. When we are dealing with a catastrophic event, it makes sense to have a process in place that avoids inconsistent judgments in multiple courts which could result in disparate treatment of victims. This amendment of the distinguished Senator from Kentucky does not ban punitive damages. Let me restate, it does not ban punitive damages. It ensures that punitive damages are not counted as an insured loss covered by the Government backstop, as does S. 2600. Senator McConnell's amendment goes on to provide that punitive damages will be available to a claimant, if State law so provides, but only if criminal conduct by the defendant is proven. This is reasonable and just. Without this limitation, then we are in effect punishing victims of terrorism and lining the pockets of the trial lawyers, not the victims. My colleagues on the other side of the aisle seem to think that if they merely provide that the Government will not cover punitive damages that is all that is necessary. I submit that the provision regarding punitive damages in S. 2600 actually compounds the problem. Insurance companies do not generally cover punitive damages, so those that are really at risk of bearing the brunt of the terrorist attacks are the insured businesses, businesses that provide jobs. Do we really want to undercut the real purpose of enacting Federal terrorism insurance legislation? Senator McConnell's amendment has another important aspect-- settlement approval by the Secretary of the Treasury. If the Government is going to act as a backstop for insurance, then we must ensure that the Government's generosity is not abused. An approval mechanism such as that proposed by Senator McConnell will work to ensure that any settlement of a claim is justified and supportable by the underlying facts and not a rush to the courthouse so that the trial lawyers can cash in and the defendants can reach their, what is in essence a deductible limit, resulting in the Government responsibility kicking in prematurely. We are seeking to provide stability to our economy, but S. 2600, as currently written, will actually hurt those we are trying to help. If given the opportunity I would have urged my colleagues to support this amendment so that we can provide the necessary stability to our economy in an appropriate manner. I hope before this debate is over we can return to this issue and resolve it. It is hard for me to support a bill such as this if we don't resolve this type of problem, because we are creating problems, not resolving them. Frankly, it is about time that we do what is right around here rather than what is politically important to one side or the other. This is a very important bill. I want to vote for it. I want to support it. I want to see that our businesses are protected. I want the Federal Government to step to the plate. But I want them to do it under the right circumstances with well-written laws that will make a difference in the fight against terrorism but will not destroy companies or businesses or jobs, which is what I think this current bill will do. I appreciate the leadership of those who are trying to resolve this problem and who have brought this bill to the floor. I want to support them, but we have to start worrying about what works economically, what works legally, what is fair legally, what really should be done. We have to punish the perpetrators and not punish those who are the victims. In many cases, the bill as written does not solve those problems. I think we should spend a little more time in trying to find some common ground to help resolve these problems. Good trial lawyers don't need punitive damages. If they are really good, they can still get tremendous judgments and awards against those who are negligent, those who haven't done what is right. But when you allow punitive damages, that can lead to runaway juries and other problems. As an example, States such as Nevada have had so many medical liability cases brought now that they are losing their obstetrician- gynecologists, neurosurgeons, and other surgeons. Physicians are going to other States or they are just getting out of the business. That is starting to happen all over America because we are not approaching these problems in ways that really make sense. On this bill, we ought to approach it in a way that makes sense. With that, I yield the floor.

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

Mr. HATCH. Mr. President, I rise to speak on S. 2600, the Terrorism Risk Insurance Act of 2002. Naturally, I supported the amendment of the distinguished Senator from Kentucky, Mr. McConnell. I am very disappointed I was unable to speak on the McConnell amendment before the premature motion to table. I think most of us agree that something needs to be done in this area. What we need to agree on is how to resolve the issue in a prudent and responsible manner that provides the appropriate stability to our economy without exposing our taxpayers to an unreasonable financial burden. Let me begin by stressing the importance of this issue. Insurance plays a vital role in this country, not just in helping in the recovery after a tragedy, but in the day to day operation of our national economy. We all know the devastating impact the events of September 11th had on our Nation--the human cost alone. What some do not realize is the economic impact that has resulted and which will continue to have a negative effect on business, the normal flow of commerce, and especially the jobs of everyday Americans if we do not act and if we do not act responsibly. Insurance is necessary to the operation and financing of property and the construction of new property. Without insurance, our economic growth is in jeopardy, businesses will fail, and jobs will be lost. My constituents have come to me on multiple occasions, imploring that the Senate act on this issue. They are genuinely concerned about the negative impact lack of coverage will have on their businesses and on their employees. Mr. President, I ask unanimous consent to have printed in the Record a letter dated June 10, 2000, from the Treasury Department and signed by not only the Secretary of the Treasury but the Director of the Office of Management and Budget, the Director of the National Economic Council and the Director of Economic Advisors--all urging that the Congress act to address this issue, but, most importantly, all noting that it must be addressed in a reasonable and responsible manner. Mr. President, I ask unanimous consent that letter be printed in the Record.

Mr. HATCH. Mr. President, I will be happy to work with the distinguished Senator and listen to any suggestions that are made. I think it is very pertinent to this bill. I would like to work with him. I am open and will be happy to get our two staffs together.

Mr. HATCH

Mr. HATCH. There is so much more to be said about this. We can debate all night about it. I am sure there will come a time for this debate, where we can discuss all these matters. But, you know, I am concerned that we not lose this opportunity to help mankind. I remember in the early 1970s, mid-1970s, when recombinant DNA was so heavily lobbied against, the research, and it was another type of cloning research. It was not the same as this, it is not cloning a living mother's egg, but nevertheless, it involved cloning. Similar arguments were made against recombinant DNA research. I have to tell you that we went ahead anyway, the research was done, and today we have over 60 mainline drugs that came from recombinant DNA--cloning--research, not the least of which is human insulin which is saving millions of lives today in this world. In fact, virtually every major scientific breakthrough through history has had those who have argued against it. And there have been some which have not proven efficacious, such as fetal tissue research. I made the arguments on the floor against fetal tissue research at the time. So far, I believe that science has not been able to derive the projected benefits from fetal tissue research. I am not saying I was right; I am just saying the fact is, it did not prove as efficacious as originally thought. But the scientists, one of the latest ones I chatted with at the University of Utah, Mario Capecchi, one of the leading experts in the world on mice stem cell research--it was an absolutely fascinating hour and a half I spent with him. You can't believe how very deeply he believes that embryonic stem cell research, of the type I have been talking about, is absolutely crucial for the well-being and care of humankind and that, really, this research has to go forward. We have already lost one of the truly great scientists in this country, Dr. Peterson, I believe, who just threw his hands in the air and gave up because he believes this research is going to be ultimately hurt in this country--although I do not think he is right. He has already left and gone to England. Can you imagine how many more would leave if we, the most free country in the world, the most scientifically oriented country in the world, the country where most biomedical research progress has been made, the country that has the best Food and Drug Administration in the world, the country that has a caring nature about living human beings--not meaning to demean other countries, but I think this country cannot be beat in biomedical research. Can you imagine what a demoralizing thing it would be if we banned this highly promising research that can help alleviate the pains of mankind? I have talked enough about it. I am just saying I hope my dear colleague will withdraw his amendment because it is premature. We will be happy to debate tomorrow, if he is unwilling to withdraw it, or whenever--but it is premature. I think it is dangerous to do it this way. We should study this because it is a complex, very difficult area. There are so many things about this whole debate that are very complex and very difficult. I am sure I cannot convince my colleague of my point of view, and I do not believe he is going to convince me of his. But the fact is, I believe we ought to do everything in our power, within moral and ethical constraints and standards, to try to come up with treatments and cures that might alleviate the pain, suffering, and yes, even premature death of our fellow human beings on this planet. I hope before this year is out that we will be able to resolve this issue because I think it needs to be resolved. I will certainly work with my dear colleague to try to find ways we can resolve this. But I believe it has to be resolved, and I hope we can have that full-time debate at a later date and that we will be able, at that time, to let the Senate vote and let the Senate make the determination, as well as the House, and go from there. I yield the floor.

Mr. HATCH. Madam President, I have a lot of respect for the distinguished Senator from Kansas. He is a good man. He is very sincere, and he believes in what he is doing. He fights for what he believes in. I have a lot of respect for him, and I have a lot of respect for his attitude. Up until this point, the debate on cloning has been considered in an orderly and responsible fashion. I am greatly concerned that in filing this particular amendment, our opponents in this debate are resorting to tactics that will not result in the careful consideration that this important issue merits. We all know that the great issue in this debate is whether an unfertilized blastocyst, or an unfertilized egg that is used in the somatic cell nuclear transfer process and becomes a blastocyst in 5 or 6 days, is a person? We will have that debate in this body, I presume. I think it would be a worthwhile debate. The amendment being offered tonight is something of a red herring. True, there are issues that should be examined in addition with patents which may be issued on living cells. In fact, Chairman Leahy and I are pursuing that matter in the Judiciary Committee with the Patent and Trademark Office and other interested parties. We are trying to learn more about patent No. 6,211,429, issued to University of Missouri researcher, Dr. Randall Prather. We are trying to learn if the issuance of this patent is consistent with the 1987 PTO policy statement with respect to the non-patentability of human beings. However, let's be fair, the crux of the issue in this debate has little to do with patents. It has to do with whether or not we will allow important research to proceed, research that holds the promise of improving upwards of 100 million-plus lives in our society in America alone. That does not even mention the millions of others throughout the world who might benefit from what I refer to as regenerative medicine. This body can look at issues around the margin--and trust me, there are literally hundreds of them that we could consider--and patenting is certainly a concern but it does not go to the heart of the issue. The Patent and Trademark Office, the PTO, has already made abundantly clear in its 1987 policy statement that human beings are not patentable, as the distinguished Senator from Pennsylvania has aptly pointed out. This policy states, in part, ``A claim directed to or including within its scope a human being will not be considered to be patentable subject matter.'' It seems to me that it might prove beneficial for PTO to reexamine the claims of the University of Missouri patent in light of prior art. In any event, human beings are not patentble. That has been the law of the land, as it should be. To get into a somewhat arcane, complicated debate about intellectual property on a totally unrelated bill merely sidesteps the real debate and confuses the issue. The patent issue is an issue that most appropriately should be examined, but I believe should be examined by the Judiciary Committee, of which Senator Brownback is a member. So the distinguished Senator from Kansas will have every right to have his thoughts considered. We need to know how far the Brownback Amendment reaches. Does it extend to cell lines derives from unfertilized blastocysts? Does the amendment destroy the patentability of any process that could be used in nuclear transplantation involving human cells? We need to know what, if any, tensions, exist between the Brownback Amendment and the Supreme Court's holding in the famous Chakrabarty decision? The 1987 PTO policy cited Chakrabarty ``as controlling authority that Congress intended statutory subject matter to `include anything under the sun that is made by man.' '' The PTO went on to say that it ``now considers nonnaturally occurring non-human multicelluar living organisms, including animals, to be patentable subject matter within the scope of 35 U.S.C. 101.'' We need to think how the Brownback Amendment squares with the position taken in the memo written by then-HHS General Counsel Harriet Raab with respect to the relationship embryos and pluripotent cell lines. But I want to emphasize that what we really have to resolve in this debate is the legal and moral status of an unfertilized blastocyst that will not be implanted into a mother's womb and can never develop into a human baby. That is a key issue. Let's be honest, there is little interest in patenting a unfertilized blastocyst because the promise is not in the unfertilized blasotcyst but in the stem cell lines that may be derived from this artificially created cells. I have been following the recent debate on the patenting of human life very closely. My interest is twofold. As a policy matter and of course as ranking member of the Judiciary Committee, I have a special responsibility for considering any policy issues that touch on intellectual property laws. In addition, my longstanding interest in biomedical research and ethics compels me to understand ramifications of intellectual property policy which have such far-ranging public health consequences. So I am very concerned about both of those issues. They are important issues and should not be helter-skelter considered on the floor without hearings, without appropriate consideration. These are complex and difficult issues. Throughout my career, I have always taken a strong pro-family and pro-life stance, especially on issues relating to biomedical research. I have also spent considerable efforts to see that the United States remains the world's leader in biomedical research so that our citizens may continue to benefit from revolutionary breakthroughs in science. Patenting human life involves novel and difficult issues. I believe there is widespread agreement that patenting human life, per se, is undesirable. Moreover, it may have serious constitutional implications under the 13th and 14th amendments as well. However, in approaching these issues, we must take care not to rush to judgment and unnecessarily make unwise policy decisions that would hinder, and perhaps halt, important biomedical research. Having said that, I jotted down a few notes put forth by the accomplished patent attorney, Al Engelberg. I agree with Al and other experts who do not believe that changing the patent law is the appropriate vehicle for exercising governmental control over the multitude of issues relating to cloning. Patents do not create an affirmative right to make, use, or sell the patented subject matter. They only give the owner the right to exclude others from doing so. For example, a patent on a new drug does not create any right to manufacture, use, or sell. An approval from the FDA is an absolute prerequisite. Similarly, a patent on a slot machine does not give the owner the right to use or sell it in a State where gambling is illegal. It would be a big mistake to leave the important broad societal moral, ethical, and public health issues to PTO experts applying technical patent laws. That would be a terrific mistake to make, and I believe that the ambiguities in the Senator's amendment will thrust PTO into an improper role. Do we really want to get involved in parsing patent claims in order to decide what is ethically permissible in the real world of cutting edge biomedical research? I think not. Let us settle the policy issue through a direct, frontal debate rather than approaching the matter through the back door of patentability. I do not think springing, unannounced, this type of amendment on this bill in this fashion is the most constructive manner in which to hold an informed debate. But on the substance of the amendment, we should take the view that the existence of the patent is not determinative of what is legal or illegal to make, use, sell, or permit within commerce. The value of the patent should rise or fall on the basis of independent legislative determinations regarding the legality or illegality of certain activities. That is what Senators Specter, Feinstein, Kennedy and I have done in our legislation by making the independent legislative determination that clearly outlaws the cloning of human babies by criminalizing the implantation of unfertilized blastocysts. The right to engage in such activities should be divorced from the issuance of patents. Now, as Mr. Engelberg argues, one advantage of proceeding in that fashion is that it maximizes the incentives for those who make new and potentially new discoveries to disclose them in the hope that over the 20-year life of the patent, the definition of ``legally permissible'' activities may be altered, thereby breathing economic value into a discovery that cannot be commercially exploited at the time of the recovery. If research in a particular area is eliminated, no patent applications can be filed without effectively admitting to a crime. Therefore, legislation regarding the scope of patents is not a good way to get at the underlying questions that are being debated. I hope the Senator would withdraw his amendment. I believe it is grossly premature. It is very dangerous for us to adopt such a measure without appropriate hearings and a complete review of this matter. In the end, it does not help us decide, what seems to me the central issue of the debate: whether or not we should go forward with this very important research? In the weeks ahead, the Senate is going to debate these issues of extreme importance to many Utahans and many Americans. There are upwards of 128 million people in our society who are suffering from various difficulties and diseases that may benefit from regenerative medicine research. I am talking about heart disease, cancer, ALS, diabetes and many others. I, personally, believe we ought to do everything in our power to help consistent with sound ethics. I, personally, believe--because experts tell me this is the case--that regenerative medicine holds great promise of curing many diseases. I acknowledge the distinguished Senator has quoted some scientists, but I am going to stand with the 40 Nobel laureates who have said this research should go forward because it holds great promise in expanding biomedical research to find treatments or cures. This science may also be used to examine disease so we can get to the bottom of the causes of disease and hopefully find treatments and cures for the millions and millions of Americans and people all over the world who need our help. Regenerative medicine has the great potential to save lives and to alleviate pain and suffering. I have come to this position after many months of study, contemplation, talking with all kinds of scientists and others on both sides of this issue, including some of the leading authorities in science, religion, and ethics. I have spent a lot of time on biomedical research issues during my entire Senate career. I have analyzed this from a pro-life, pro-family perspective, with the view that being pro-life means helping the living. A 4-year-old boy, Cody Anderson, from West Jordan, UT, came to visit me this last June. Cody Anderson's mother almost fell apart when she discovered at the age of 2 Cody Anderson got the very same diabetes that his grandfather had. His grandfather lived until he was 47 years of age but lived through 28 different operations, the loss of his left leg below the knee, the loss of his right toes, a colonoscopy, all kinds of other travails, difficulties and problems, and ultimately was on dialysis for the loss of his kidneys for the last 10 years of his life before he died, in a miserable, painful condition, at 47 years of age. When Cody's mother discovered that her son, at the age of 2, had exactly the same disease that killed her father at age 47, after all that miserable, wretched existence, she almost fell apart. She came to me and said: You have to do something about it. Not only did the grandfather go blind, he had pressure behind one of the eyes, and it had to be removed. Now, why wouldn't we do everything in our power to help Cody and others suffering from life-debilitating diseases? It seems to me we should. Let me state my total agreement with my dear friend and colleague from Kansas that we should ban absolutely reproductive cloning of human beings. There is no question that ban would pass 100 to 0 in this body, and I think 435 to 0 in the House. There are only a few people in our society today who believe we ought to follow through and try to experiment with and reach a position of cloning human beings. Those people would be shut off automatically. They basically would be outcasts if they tried to do something like that. By banning that totally, we would solve most every problem with which most people are concerned. It does not solve the problem that my dear colleague is concerned with because he considers the unfertilized egg, once a nuclear transfer takes out the 23 mother's chromosomes, and insert the DNA of a skin cell or other somatic cell through the nuclear transplantation process. This process inserts the 46 chromosomes into the unfertilized egg that will remain unfertilized. Some believe that the product of nuclear transplantation is a human being. I don't agree with that. It is a living, human cell, but it certainly is not a human being, nor does it have a chance in the world of becoming a human being unless it is implanted in a human womb, and even then probably will not become a human being because it is theoretically possible but nobody is absolutely sure if that can happen. During this period of time, the unfertilized egg can be grown to a blastocyst stage in a lab and develop to the point where special cells, called embryonic stem cells, can be extracted and replicate themselves. The stem cells are undifferentiated but, scientists believe, they can be differentiated into as many as 200 different forms of human tissue which might save lives, which might treat disease, which might bring cures, which certainly will help study disease and the origins of disease. I don't mean to go into all of the details this evening. But I am very concerned in the end that if we do not continue this research, the rest of the world is going to leave us behind. They will do so under moral and ethical standards that will not be good--at least in some parts of the world. If we help set the moral and ethical standards, it seems to me, we can benefit everybody around the world, first and foremost U.S. citizens. It will mean they will conduct this research on a highly ethical and morally upright manner. If we do not do that, this research is going to go on through the rest of the world, and it will not be with our influence. Second, it seems to me, if we do not go ahead with this research under very stringent moral and ethical standards, it will be gone ahead with no matter what happens because many of our leading scientists today may leave our country and go where they can pursue this research. And I say again--according to at least 40 Nobel laureates and almost everyone else I know, except a few--this is very promising research. This is important. I am totally in favor of adult stem cell research, and almost every scientist I have talked to is also supportive of this line of research. But almost every scientist I have talked to, and I have talked to a lot of them, will tell me that it is very difficult to get enough adult stem cells, and when you do they are not as able to maintain and differentiate into the various forms of human tissue as embryonic stem cells are. That is why many in the scientific world, except for a few, believe this research, this positive, very important research, should go forward. I understand the sincerity of those who believe that somatic cell nuclear transfer results in the creation of a human being but I do not see it that way. If you have an unfertilized egg that is never implanted into a mother's womb, I do not think we have a human life. It is a living human cell. It is something that should be given respect, certainly, but we should give it respect by studying, learning, and helping alleviate human pain and suffering if we can. At least that is my viewpoint. I respect those with viewpoints that are different from mine but I think they are in the minority and as this debate unfolds I think that more and more Americans will agree with us that this important research should go forward. But I do not agree with it. There are a lot of very fine people who feel the same way the distinguished Senator from Kansas feels. But there are a lot of fine people, who are very religious and very decent, and who are pro-life, who believe that regenerative medicine is moral and that we ought to do all we can to help the living, too. From where are these eggs going to come? First, that egg is unfertilized. It remains unfertilized right up through this blastocyst stage. Those eggs are probably going to come from in vitro clinics themselves, in many cases. Under our proposal they are going to be voluntarily given. Nobody is going to profiteer on these eggs. There will be eggs that you cannot freeze readily because they are not fertilized. So they will have to be used in a relatively short-term fashion, to create these embryonic stem cells, generally in 4 to 6 days or so. The fact is, they are going to be eggs that are voluntarily given. Some of my friends on the right and left of me say every one of those eggs ought to be used and implanted in a woman so they can have babies. That is not reality. It can be, to a limited number of people who choose to do that, but some will volunteer eggs for this research. During the Olympics I had a woman come up to me and she said: Senator, I appreciate your stand on stem cell research. She said: My husband and I have twins from in vitro fertilization. We are so grateful for that process. I remember when that process came forward, many of the arguments that are being used today were used against that process. And she said: Senator, we are grateful for those twins. But I don't want any more children and I don't want my eggs implanted in somebody else. I want them used for research. She ought to have the right to do that, and women like her. If you are a mother and your child has just gotten a very virulent form of diabetes, or your parents are drifting into Alzheimer's or Parkinson's, what woman, who is really concerned about her parents, would not be willing to do what she could to help them, if in fact this research can prove efficacious? And if adult stem cell research has a chance of being efficacious, can you imagine what the undifferentiated state of stem cells, which can be so easily differentiated, in the eyes at least of these scientists, can you imagine what good that will do? I believe these 41 Nobel laureates, the leading scientists in our society, ought to be listened to in this debate. To a person, they do not believe this is a human being at this stage. There is good reason for that. I ask unanimous consent the letter from these Nobel laureates, with their names, be printed in the Record.

Mr. HATCH

Mr. HATCH. Madam President, I ask unanimous consent that privilege of the floor be granted to Bruce Artim for the remainder of this session.

Mr. HATCH

Mr. HATCH. Madam President, as a longtime proponent of a balanced budget amendment to the Constitution, I rise to speak concerning S. 2578. While we are told that this bill will increase the Nation's debt limit, what we really voted on today was whether to keep the statutory commitment that Congress has made to the Social Security trust fund. Social Security's current surplus is the main reason we need to raise the debt limit. Every single dollar of that surplus goes into the Social Security trust fund, and by law, every single dollar of the trust fund counts as part of the total Federal debt. Social Security is expected to run a $160 billion surplus this year, with an even higher surplus next year. Ironically, in order to place that surplus in the Social Security trust fund, the law requires us to increase the debt limit. Only in Washington, DC, can running a surplus increase your level of debt. Of course, the debt that is included in the Social Security trust fund is just money that the Treasury owes to itself. What really matters for the Government's budget and for the U.S. economy as a whole is the amount of debt held by the general public. Over the last few years, as a Republican Congress put the brakes on spending, debt held by the public actually fell, lowering the amount of money our Government had to spend on interest payments. However, the war on terrorism, our current recession, and Congress's recent extravagant spending have combined to increase the public debt over the past year. While it is important for Congress to meet its statutory responsibilities to the Social Security trust fund by increasing the debt limit, it is even more important that Congress get its fiscal house in order by working to cut discretionary spending and restore the economy's health. Time to act on the debt limit is running out. In fact, the Secretary of the Treasury says that the main reason he has called June 28 the ``drop-dead'' date for raising the debt limit is because on that day, Treasury is scheduled to make a large payment into the Social Security trust fund. I am pleased that the Senate voted to raise the debt limit today, and we can get a final bill to the President for his signature. Finally, now that we have voted on this wartime increase in the debt limit, I hope that Congress enacts tough budget caps, strong limits on discretionary spending, and productivity-enhancing legislation so we can bring our budget back into balance and restore the American economy to its full potential.

Mr. HATCH

Mr. HATCH. Mr. President, last Friday, immediately after calling up S. 625, the hate crimes bill, the Democratic leadership filed for cloture, I believe within 15 minutes after they called it up. No one is filibustering this bill. In fact, there have only been 20 amendments filed to be considered. I expected this bill to be debated. We hoped the minority or anyone in the majority, who so chooses, who wants to try to modify this bill and make it better, would have the opportunity to do so. We all know, if cloture is invoked, for the most part, all we can do is make motions to strike. Almost everything will be held to be nongermane and therefore not debatable, unless we get a supermajority to overcome the point of order. All we are asking is for our side to be given an opportunity to present amendments that may improve this bill. It is astonishing to me that cloture would be filed on a bill of this magnitude, a bill that has been hotly contested for very legitimate reasons, basically for the purpose of foreclosing any amendments on one side, including my substitute amendment, which I think almost anyone would have to admit is a reasonable amendment. I don't know whether it would be accepted as a substitute or not, but it ought to at least be debated and voted up or down. I filed an amendment yesterday that preserves the death penalty as an option in hate crime cases. It seems to me that is an option we would not want to deny law enforcement. One would think you would want to give them that additional prosecutorial tool in hate crime cases that result in death of the victim. We can cite countless cases where, because of the threat of the death penalty, because it is a statutory option, people have pled guilty, accepted life imprisonment, and the matter was solved prior to trial, which preserves judicial resources. We also know, that when the death penalty is an option, in many cases law enforcement officials can break down one of the conspirators to plead guilty and to become a witness, and an effective witness at that, against the other perpetrators of the heinous murders. But, if this bill passes, it specifically excludes the death penalty. It specifically takes away those powers of the Federal Government as a tool to resolve some of these matters. As everybody knows, I am not a big fan of the death penalty. I think it should be used very, very narrowly and only under the most stringent of circumstances. I think it is too widely used today. But it at least ought to be an option that a prosecutor can use to obtain confessions, cooperation from witnesses and, of course, use as a penalty for those who commit really heinous crimes that are proven beyond a reasonable doubt. On Friday, immediately after calling up S. 625, the Democratic bill, the Democratic leadership immediately filed for cloture, as though anybody wants to filibuster this. I doubt seriously that all 20 amendments would be called up, but with a limited amount of amendments we could finish this bill by Thursday, 2 days from now. It is an important bill. Everybody admits it. Why would you foreclose to me, the ranking member of the Judiciary Committee, the right to debate an effective substitute that may improve this bill and at least have a vote so those who agree with me can have their vote. I point out to my distinguished colleague from Massachusetts that it was he and I who passed the Hate Crimes Statistics Act in the early 1990s. I was the Republican Senator who came forward and helped to get that done. This bill has proved effective in showing there are hate crimes in our society. We know that if the two of us got together, along with the distinguished Senator from Oregon, we could probably resolve the conflicts so we would not have to wait another 5 or 6 years to have hate crimes legislation pass. But, no, there is no desire to try to resolve these matters. There is a desire to invoke cloture, cut off basically all effective debate and all amendments including the amendment of the ranking member, cut off the amendment with regard to imposing or at least requiring the death penalty, and any number of other relevant amendments. For what? Because they want this bill at all costs, when they know that the House leadership will not accept it without further amendment. So it makes you wonder if this is not done primarily for political reasons instead of working together to try to come up with legislation that literally would work to resolve these problems. I agree with the distinguished Senator from Oregon. There is no excuse for anybody to abuse, mutilate, kill, or otherwise commit violent conduct against anybody in our society, let alone gays and lesbians. I do not think that is justified, that anybody could get away with that. And we ought to do whatever we can to stop it. The fact remains that State and local law enforcement are dealing with the problem. We have challenged the other sides to give us examples, if they know any, where local law enforcement, local prosecution has not done the job. I am sure they may be able to come up with a few isolated examples, but I have not heard any yet. We have had only 1 day of debate on this very important subject yesterday, and it was only a matter of a couple of hours. This is a bill that seeks completely to overhaul and vastly expand the role of the Federal Government in law enforcement. The attempt to prematurely cut off debate on a bill of this magnitude makes a mockery of the role of the Senate as a deliberative body. If the distinguished Senator from Oregon is correct, if cloture is not invoked today--and I do not believe it should be--that this bill will be brought down, that would be a travesty because we could pass this bill by Thursday. There is not a soul in this body who is filibustering this bill, as far as I know. It just makes a mockery of the Senate as a deliberative body. I think the rush to ward off amendments can only lead to the conclusion it was done for sole purpose of thwarting any meaningful debate and avoiding some tough amendments because there is a wide disparity of viewpoint here with regard to the death penalty. But even if you are against the death penalty, you ought to realize the efficacy of having it there as a threat to criminals against hate crimes--yes, against gays and lesbians, to select that category--they might have to suffer the ultimate penalty because of what they have done. In most cases the death penalty will not be imposed, but it will be used to obtain confessions, pleas, and cooperation from witnesses. Again, I want to talk about the television show Law and Order. Although it is a fictional show, it really does portray how law enforcement uses the death penalty to obtain cooperation and confessions, to get people to testify against others, including their coconspirators. If you really want to do something about hate crimes, let's do it the right way and do it by amendment, amending this bill so the House will have to consider it. They are not going to accept this bill in its current form and Senator Kennedy knows that. I know that. The distinguished Senator from Oregon knows that. I think Senator Kennedy would agree with me that this bill deserves more than a single day of debate--or I should say 2 hours or so yesterday--before Senators are precluded from filing amendments. I agree wholeheartedly that Senator Kennedy's bill, S. 625, is an important piece of legislation and should be given consideration in the Senate. In the past I, too, have introduced legislation addressing hate crimes and I intend to offer a viable substitute amendment. As someone who has remained interested in this issue, as Senator Kennedy is and I am, I believe at a minimum I should have the opportunity to offer amendments relative to the discussion of hate crimes and to this bill. This opportunity, of course, can only be ensured if today's cloture vote fails and the leadership then agrees to work this out. Let's get a time agreement. Let's have limited amendments, and I think we can get our side to agree to that. I believe my amendments will in fact improve this bill as it reads currently. Moreover, I believe the majority of my colleagues not only want to consider my amendments but would also approve my amendments. Protecting the safety and rights of all Americans is the paramount concern to all Senators. To not have a vote on the death penalty? For the first time, remove that as a consideration in these tough cases? If you really want to do something about hate crimes you ought at least to have the death penalty on the books. There are, however, many differing thoughts about how to best provide the protection. No one is threatening to filibuster this bill. Relying on unsubstantiated rumors of machinations to file numerous irrelevant amendments is insufficient justification to cut off debate. The fact is, only 20 amendments were filed yesterday. My colleagues and I are trying to engage in a sincere debate on this issue that affects all Americans. It is curious to me why the Senate Democrats are trying to block a substantive debate on hate crimes. By preventing relevant amendments from being offered and considered, the Democrats are shutting the door on any Republican ideas or alternatives, however constructive they may be. At least we should be entitled to a vote on a limited number of amendments. We could agree to that. Every Senator has the right to consider, thoughtfully, legislation that will have a significant impact on the way serious crimes are prosecuted in this country. By filing for cloture prematurely, the leadership is denying all Senators the right to debate and have a vote on issues that are important to them and the constituents of their States. Simply stated, it is wrong to foreclose debate on this very important bill. I ask the Democratic leadership to rethink their strategy and unreasonable position. I strongly urge Senators to oppose cloture on this bill. I agree with my colleague from Massachusetts, every hate crime is a tragic reflection on our society and we need to address the problem. But no one has made the case to me that the local authorities are not effectively prosecuting these cases. We have asked them to. I believe the proper role of the Federal Government is to assist, not supplant, local law enforcement authorities. That is the approach I have taken in my alternative, which will not even be able to be considered if cloture is invoked today. Let me just take a moment to review some of these cases that we have been talking about. Take the Roxanne Ellis and Michelle Abdill case here. This is the one that the distinguished Senator from Oregon, if I remember correctly, was referring to. Roxanne Ellis and Michelle Abdill. The defendant was Robert Acremant, the jurisdiction was Oregon. Acremant, shot Ellis and Abdill, a homosexual couple, to death as they lay gagged in the back of his truck--truly a heinous, vicious, reprehensible act. What happened to this defendant? Was he let go because the Federal law enforcement authorities and prosecutors did not have this hate crimes bill? Not at all. The local law enforcement brought him to trial and he received--guess what--the death penalty. That doesn't sound to me like he is getting away with a hate crime. Let's go down through a few more. James Byrd--we have heard a lot of about James Byrd and we ought to hear a lot about it. It was a terrible, heinous act that was committed in Texas by three defendants, Lawrence Russell Brewer, John William King, Shawn Allen Berry. They beat Mr. Byrd, an African-American, unconscious. They chained him to the back of a pickup truck and dragged him for miles down rural roads. That is what all three of these heinous criminals did. What happened to them? Let me tell you. Because the death penalty was available, Shawn Allen Berry pled guilty and became a witness against the other two, who both received the death penalty. That doesn't sound to me like the Federal Government was needed in that case. The fact of the matter is, the State and local officials said: Enough is enough. We are not going to tolerate this kind of activity, this type of action. The death penalty, because it was available for these crimes--a defendant pled guilty and was sentenced to life in prison without parole. The other two defendants received the death penalty. All we ask is that we be permitted to offer my substitute amendment which preserves the death penalty. I can't imagine that amendment would fail on this bill and it would improve this bill by leaps and bounds. Matthew Shepard, we have heard a lot of talk about Matthew Shepard and yes, State prosecutors and law enforcement, who believe, as we do, that hate crimes should be prosecuted. In the Shepard case, the two defendants were Aaron McKinney and Russell Henderson. They kidnapped Shepard, a homosexual college student, beat him so severely that his skull was fractured a half dozen times, tied him to a fence post and left him to die. The defendant Henderson drove the truck into which Shepard, a homosexual college student was lured, helped tie him to a fence--and at least stood by while Shepard was beaten senseless. What happened? Henderson pled guilty in order to avoid the death penalty. He was sentenced to two consecutive life terms with no possibility of parole. Aaron McKinney was sentenced to two consecutive life terms. He avoided the death penalty by agreeing not to appeal the life sentences. Had the death penalty not been there, who knows what would have happened? I think they had the defendants dead to rights, but it certainly did help in both of these cases to have the death penalty available. Another case involved the homosexual couple, Gary Matson and Winfield Mowder. The defendants, Benjamin Williams and James Williams, shot Mr. Matson and Mr. Mowder to death. The death penalty was available and the prosecution is ongoing in both cases. In another Texas case, the defendant Mark Stroman was tried for shooting Vasudev Patel, an Indian man, after 9/11, because Stroman thought Patel looked middle eastern. The local officials prosecuted the case and he received the death penalty. In the case of Sasezley Richardson, an African-American, Jason Powell and Alex Witmer fired 12 shots at him in an attempt to ``earn'' a spider web tattoo from the Aryan brotherhood. The defendant Witmer drove the truck from which Powell fired 12 shoot at Richardson. Because the death penalty was available, Powell pled guilty and testified for the State in order to avoid the death penalty. He was sentenced to life in prison without parole. In the case of Alex Witmer, the death penalty was available, and he pled guilty and was sentenced to 85 years in prison. What if that death penalty had not been available? Who knows whether they could have convinced one defendant to testify against the other. The next chart begins with the case of Amanda Milan, who was stabbed to death for being a transgender woman. The defendants in this case were Duayne McCuller and Eugene Celestine in New York. In this case Eugene Celestine gave McCuller the knife with which to kill Milan. The prosecution is currently ongoing, and both are facing the possibility of life in prison. In another case, the victim, Billy Jack Gaither was bludgeoned to death because he was homosexual. The two defendants, Mullins and Butler, attacked Gaither with an ax handle, slit his throat, threw him on the top of a pile of tires, and set him on fire. Because the death penalty was available, Mullins pled guilty prior to trial and was sentenced to life in prison without parole. Butler was sentenced to life in prison without parole only because the victim's parents requested that the prosecution not seek the death penalty. But because it was available, they were able to bring these cases to conclusion and these two heinous criminals were sentenced to life because neither wanted to go through a trial where they knew they could get the death penalty. By obtaining pleas prior to trial, the prosecutors saved scarce taxpayer dollars. In a Virginia case, Danny Lee Overstreet, was killed by the defendant, Ronald E. Gay when Gay went on a shooting rampage in a gay bar, killing Overstreet and wounding six others. Because the death penalty was available, he was sentenced to four life terms. I have a lot of empathy for those on the other side of this issue at this time who want to pass legislation to address some of these hate crimes. They would like to give the Federal Government more authority. I am not against that. But I would like to have a bill that will pass both Houses. I would like to have a bill that will go to work tomorrow, or the next day, or 2 months from now, when it passes both Houses and is signed by the President, which will really do something about these crimes. I want a bill where there is a threat of the death penalty so we can get pleas and save the taxpayers' money. Frankly, these cases are important cases. In almost every case that the proponents of this piece of legislation bring up--in almost every case--the State and local law enforcement--in fact, in every case, to my knowledge--they have done the job. My substitute amendment would give them the tools, the money, and so forth to do the job even better. I would like the opportunity as ranking member of the Judiciary Committee to be able to offer some amendments that should have votes. If I lose, I lose. If I win, I win. But the fact of the matter is that we ought to at least have this opportunity to debate it. I reserve the remainder of my time.

Mr. HATCH. Mr. President, I have heard all this rhetoric before. We have been working on this for 5 years. The distinguished Senator from Massachusetts knows that we put together some of the most important legislation in history--he and I. He knows darn well that this bill isn't going anywhere if it passes in its current form. He knows darn well that it sounds good to make all these political points, but I would like to pass something. I would like to do something. I would like to have something that works. I am willing to do it in a Federal way. The Senator seems to be saying, take his viewpoint about this or take nothing, which is what we have done for the last 5 or 6 years. He knows darn well that I will work on the bill with him. We have discussed this in private. I don't like what is going on in our society any better than he does, but I challenge him to show me where State and local law enforcement are not doing the job. Explain to me why he would not have the death penalty to help law enforcement and the prosecutors to obtain pleas, cooperation from witnesses, and to have witnesses testify against their coconspirators, which conserves judicial resources. He says that if the States want to prosecute hate crimes, they can seek the death penalty. The fact is, we are taking these matters away from the States and saying the Federal Government ought to prosecute these crimes where there will be no death penalty. I feel embarrassed to have to talk about the death penalty because I am not real enthused about it. I don't want it applied, except in the most stringent of circumstances. There has to be absolute guilt, and the crime has to be so heinous as to justify it. Look, I would be willing to put sexual orientation in my bill. I don't want every rape to be considered a federal hate crime. I don't want every criminal sexual act to be considered a federal hate crime, leading to the possibility of being brought before the Federal courts. On the other hand, I am certainly willing to talk about compromises. The charts we just went through show that the criminals are being prosecuted. The crimes against gays and lesbians are being prosecuted. State and local law enforcement are bringing the appropriate prosecutions. The distinguished Senator said ``let's send a message through this legislation'' if nothing more. I would like to do that. I would like to get a bill that we can pass. I would like to get a bill that the House will accept--instead of accusing the House of not having the same interests at heart than the Senator from Massachusetts. No one is arguing that hate crimes are not a problem. We have never denied that hate crimes are occurring. Nobody can deny that. I want to get rid of them as much as anybody. No one feels more strongly on this issue than I do, whether they support S. 625 or not. No one--least of all me--is suggesting that hate crimes are not a problem, or that we as an institution should stand by and do nothing about hate crimes. That is why I intend to offer an amendment to S. 625 that provides an alternative approach to helping in the fight against hate crimes. I am willing to sit down with the Senator and see if we can work out something that will pass both bodies. The tremendous record of State and local prosecutions of hate crimes suggest to me, however, that States are doing a great job policing these types of cases. In my view, a measured, appropriate, and constitutional Federal response should be directed at helping States that ask for our assistance. Nobody is arguing that existing Federal law is adequate. No one contends that we should rest on the existing Federal hate crimes statute. We can all agree that the Federal Government should do more than what 18 U.S.C. 245 currently provides. That is why I will offer an amendment to S. 625 that provides for an alternative approach to help in the fight against hate crimes. The record is clear. I have always been open to fixing 18 U.S.C. section 245 through amendments.

Mr. HATCH

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

Mr. HATCH. Mr. President, let me begin on a point of common ground. We can--each and every one of us--agree that the actions constituting hate crimes are wrong in all respects. Let me state, unequivocally, that as much as we condemn all crimes, a hate crime can be more sinister than a non-hate crime. And let me state, with equal conviction and clarity, that I care about stamping out hate crimes as much as any member of this body. I think everybody know that. A crime committed not just to harm an individual, but in order to send a message of hatred to an entire community is appropriately punished more harshly, or in a different manner, than other crimes. This is especially true when the targeted community is defined on the basis of immutable traits. The brutal murders of James Byrd in Jasper, TX, and Matthew Shepard, in Laramie, WY, among others, remain seared into our Nation's conscience because of the savagery they suffered solely because of their attackers' irrational and hateful prejudice. The worse a criminal's motive, the worse the crime, and a unanimous Supreme Court recognized as much in upholding Wisconsin's sentencing enhancement for hate crimes. These same considerations also prompted the U.S. Sentencing Commission to establish a sentencing guideline that provides an enhanced sentence for a Federal defendant whose crime was motivated by hate. These decisions are ones we can all applaud. Not only are the offenses themselves worse, but hate crimes also are more likely to provoke retaliatory crimes. They inflict deep, lasting and distinct injuries--some of which never heal--on victims and their family members. They incite community unrest. And, at bottom, they are downright un-American. The melting pot of America is the most successful multiethnic, multiracial, and multfaith country in all of recorded history. We should keep our proud heritage of diversity in mind as we consider the atrocities routinely sanctioned in other countries committed against persons entirely on the basis of their racial, ethnic, or religious identity. So we all should be able to agree that the battle against hate crimes is and must be America's fight. And despite the often contentious partisan rhetoric surrounding the issue of Federal hate crimes legislation, there exists widespread agreement on these fundamental points: Hate crimes are insidiously harmful, they should be vigorously prosecuted, and the Federal Government has a role to play in reducing the incidence of these crimes in our Nation. The dispute, then, centers not on whether Congress should act in this area, but rather on what should be done at the national level. There is no dispute that hate crimes themselves often involve particularly horrific facts. They rivet our attention and move us to consider almost any measure that would appear to check such bigotry. But the proposed legislation introduced by my good friend from Massachusetts, S. 625, also brings us face to face with the foundations of our constitutional structure--namely, bedrock principles of Federalism that, for more than 2 centuries, have vested States with the primary responsibility for prosecuting violent crimes committed within their boundaries. And on this point we must be crystal clear: every hate crime--every bit of criminal conduct that S. 625 proposes to federalize--is, and always has been, a crime in every jurisdiction throughout our Nation. The question is not whether these crimes can be prosecuted, but who should prosecute them under our constitutional framework. In other words, S. 625 brings us to a difficult intersection between our well-intentioned desire to investigate, prosecute, and, hopefully, end these vicious crimes, and our unequivocal duty to respect the constitutional boundaries governing any legislative action that we take. We, who are trusted with the awesome responsibility of making our Nation's laws, must scrupulously abide by the rule of law in this process. Congress has a duty to make sure that the legislation it enacts is constitutional. To shrug off that duty is more than just negligent; it invites trouble and may even solicit scorn. A Supreme Court Justice for whom I have the greatest respect, Justice Scalia, said the following just a few years ago: My court is fond of saying that acts of Congress come to the court with a presumption of constitutionality. But if Congress is going to take the attitude that it will do anything it can get away with, and let the Supreme Court worry about the Constitution, perhaps the presumption is unwarranted. So, while all of us would agree that hate crimes are a problem with which Congress must deal, our focus must be on the appropriate and constitutional means to best accomplish that objective. In the face of some of the recent hate crimes that have riveted public attention--and have unfortunately made the name James Byrd synonymous with Jasper, TX; and the name Matthew Shepard synonymous with Laramie, WY--I am committed in my view that the Senate must speak out and act against hate crimes. I have long been on record with my view that the Federal Government can play a valuable role in responding to hate crime. In fact, I sponsored the Hate Crime Statistics Act of 1990. But any Federal response--to be a meaningful and lasting one--must abide by the constitutional limitations imposed on Congress, and be cognizant of the limitations on Congress's enumerated powers that are routinely enforced by the courts. I was a prime sponsor of that bill, and I am proud that I was. It was a bill with a lot of controversy at the time. This is more true today than it would have been even a mere decade ago--ever since the U.S. Supreme Court revisited the Federalism doctrine in a string of decisions beginning in 1992. Having consistently checked the expansion of Federal jurisdiction in areas traditionally reserved to the States over the past decade, the Supreme Court has cast grave doubt over the legitimacy of S. 625. I am not alone in believing that this bill, if passed into law, will be struck down as an unconstitutional invasion into States' rights. I take no pleasure in holding this view. In fact, I was the primary co-sponsor of the Violence Against Women Act of 1994--a law that created Federal jurisdiction over certain serious acts of violence directed at women. Senator Biden was a prime sponsor as well and deserves an awful lot of the credit for that particular bill. I felt strongly about that legislation, and I certainly was not happy to see the Supreme Court strike down a portion of that law as unconstitutional. But I respect, as we all must, the Supreme Court's ruling, and we have a duty to take its lesson to heart--whether or not we personally like them. So there is a serious constitutional concern with S. 625. But, in the frightening climate of terrorism that we live in today, there is a practical consideration that we also cannot ignore. We must ask ourselves what role our Federal law enforcement agencies should play in violent crimes that historically have been prosecuted by State and local officials. The Federal Bureau of Investigation recently has committed a large number of its agents to work exclusively on terrorism cases. The FBI has shifted its focus away from the investigation of general crimes to the protection of our homeland security. In my view, this is a step in the right direction. I sincerely hope that everybody in this body, and both bodies, can all agree about that. Now, more than ever, we can see the line between what is truly national and what is truly local. The question is not just what can we do, but rather, how should we allocate our scarce Federal resources? And what message will we be sending the FBI--who has committed to focus on terrorism--by passing, as historians will no doubt conclude, the greatest expansion of Federal power over crimes traditionally prosecuted by State and local governments? I have given a great deal of personal thought to this matter in attempting to create a Federal response to hate crimes that would be as effective as possible without implicating the very serious concerns created by S. 625. The amendment I intend to propose before this matter is over is one that I believe would not only solve the problem effectively and pragmatically, but also has the virtue of resting on unquestionably sound constitutional ground. I care deeply about this issue and am committed to a strong, workable, practical, and constitutional Federal solution. It is precisely because of my commitment to this issue that--in the 2 years since this issue last came to the Senate--I have changed certain aspects of my amendment to strengthen the Federal Government's role in the investigation and prosecution of hate crimes. So, while S. 625 remains in precisely the same form as it was when it was offered as an amendment to the Department of Defense appropriations bill in June 2000--despite the concerns that were raised about its scope and constitutionality--I have worked to change my proposal to make it more aggressive and more acceptable to the supporters of S. 625. There are two main components to my amendment. First, I would propose creating a meaningful partnership between the Federal Government and the States in combating hate crimes. My amendment would permit the Justice Department to assist State and local authorities in investigating and prosecuting hate crimes by providing Federal manpower as well as financial assistance. The original version of my amendment had capped the amount of Federal grants at $100,000 per case, but the version I propose today removes that ceiling when the need is greater. My amendment contains a completely new provision that would require the Attorney General to designate one Federal prosecutor in every district to act as the Federal liaison for the State and local prosecutions of hate crimes. That Federal prosecutor, will take an active role in helping States prosecute hate crimes, from seeking Federal wiretaps to Federal search warrants. There simply is no reason to believe that State and local law enforcement officials could not prosecute these sorts of cases effectively with the type of Federal assistance that my amendment provides. My amendment directly remedies the primary concern of those who advocate broad Federal jurisdiction over hate crimes. Such a broad power grab is required, the argument goes, because State and local jurisdictions often lack adequate funding or resources to effectively prosecute hate crimes. While the record would seem to indicate that States have effectively shouldered the oar on prosecuting hate crimes, I certainly accept the fact that such highly publicized prosecutions might strain a smaller community's resources. My amendment directly cures that potential problem without displacing States from their traditional role in law enforcement. Let us not fail to note that the overwhelming successful record of local prosecutions of hate crimes--many in jurisdictions where the death penalty not only was available, but also played a central role in securing justice--should stand as a testament to the fact that wholesale Federal intervention is not warranted. There has never been a showing that State and local law enforcement officials have been ignoring or neglecting--much less intentionally failing--their duty to prosecute these heinous offenses. The truth seems quite to the contrary. State and local authorities effectively investigated and prosecuted those who perpetrated the reprehensible murders of Matthew Shepard and James Byrd, Jr. No Amount of federalization--much less the measures called for in S. 625--would have made these persecutions any more successful. This raises a point that I frankly find somewhat puzzling. During the last floor debates on this issue, Senators Kennedy, Durbin, my good friend, and Senator Reid from Nevada--good people who I know genuinely care about this issue--kept bringing up the tragic cases of Matthew Shepard and James Byrd as reasons to support S. 625. Yet those offenders were prosecuted efficiently and effectively and, in my view, appropriately with the death penalty, which was actually the sentence imposed on two of the killers of James Byrd. That is something that just couldn't happen under S. 625, which doesn't even provide for the possibility of the death penalty. So, if anything, the Matthew Shepard and James Byrd cases stand as testament to the fact that federalization of hate crimes is both unwarranted and in the case of S. 625, less effective than current state laws. In any event, before we take the decidedly broad step of making every criminal offense motivated by hatred a Federal crime, we ought to equip States and localities with the resources necessary so that they can undertake these criminal investigations and prosecutions on their own. The second major component of my amendment proposes to define the problem more precisely. Before we swing a broadsword into the constitutionally sensitive area of States' rights, we ought to consider carefully whether a scalpel might do the trick. There is a pile of raw data that has been collected pursuant to the 1990 Hate Crime Statistics Act, including a comparison of the records of different jurisdictions-- some with hate crime laws, others without. We need to undertake a comprehensive analysis of that data to determine whether there is, in fact, a problem in certain States' prosecution of hate crimes. Some 45 States and the District of Columbia already have enacted hate crimes laws, and by any measure, they are aggressively and effectively prosecuting these cases. I am certainly open to being persuaded that the States are failing to prosecute these crimes. But neither S. 625 nor the record developed in support of this legislation appear to make such a case. Analyzing the statistics that already exist to see whether there is a real, verifiable problem with state and local enforcement of hate crimes is a simple, efficient and responsible first step that we, as lawmakers, should take before enacting such sweeping legislation. In sum, we have widespread agreement that the Federal Government must play a role in our Nation's efforts against hate crimes. The role we define must also respect the Constitution and the structure of our government--a structure that, since the inception of our country, assigns to the States the primary role in criminal law enforcement. Rather than take a precipitous step that would potentially make every criminal offense motivated by a hatred a Federal offense, we should equip States and localities with the resources necessary to undertake these criminal investigations and prosecutions on their own. At the same time, we should undertake a comprehensive analysis of the raw data that has been collected pursuant to the 1990 act. My amendment is a measured legislative response that would accomplish the goal of letting no hate crime go unpunished--without bearing any risk of being struck down as unconstitutional by the Supreme Court. It is legislation that could and probably would pass into law. We know that S. 625, as written has no chance of enactment. The House will not take this amendments. It simply has too many problems. I hope it is not presented just for political reasons. Instead of having a political issue, we should take a realistic and responsible step toward addressing this problem, which would be passing my version of this legislation. Mr. President, as we know, on Friday, immediately after calling up S. 625, the hate crimes bill, the Democratic leadership filed for cloture. This was done for the sole reason of thwarting any meaningful debate on a bill that seeks to overhaul and expand thoroughly the role the Federal Government plays in law enforcement. I agree wholeheartedly that Senator Kennedy's bill, S. 625, is an important piece of legislation that deserves consideration in the Senate. In the past, I too have introduced competing legislation addressing hate crimes. As someone who has remained as involved in this issue as Senator Kennedy, at a minimum, I deserve the opportunity to offer amendments relevant to the discussion of hate crimes and to improve this bill. I believe my amendments will in fact improve this bill as it reads currently. Moreover, I believe that a majority of my colleagues not only want to consider these amendments, I believe they would approve of my amendments. Protecting the safety and rights of all Americans is of paramount concern to all Senators. There are, however, many thoughts as to how to provide this protection. No one is threatening to filibuster this bill. My colleagues and I are honestly trying to force a debate on an issue that affects all Americans. It is curious to me why the Democrats are trying to prevent a substantive debate on hate crimes from going forward. By preventing amendments from being offered and considered, the Democrats are shutting the door on any Republican ideas or alternatives, however constructive they may be. All Senators have the right to consider thoughtfully legislation that will impact significantly how serious crimes are prosecuted in this country. By filing for closure prematurely, the Democratic leadership is prohibiting Senators the right to debate and have a vote on issues that are important to them and the constituents of their States. It is unconscionable to prevent debate on such an important issue. I ask the Democratic leadership to rethink this position, and I ask Senators to oppose cloture and allow us to consider a reasonable amount of amendments to improve this bill. I will certainly make every effort to keep the amount of those amendments very limited so that this particular debate does not have to go on and on. I hope we will be able to get that done. I noticed S. 625 not only substantially expands current authority over hate crimes, it adds a number of provisions over what we had at least attempted to do before. Under current Federal law, it is important to note that it is unlawful to injure, intimidate, or interfere with any person because of his or her race, color, religion or national origin. That is the law today. That has been upheld as constitutional. If the person is participating in certain federally protected activities such as attending school, serving as a juror, traveling in interstate commerce, using public accommodations, or working, that person is protected against injury, intimidation, or interference because of race, color, religion or national origin. Since 1994, Federal law has required a heavier sentence for persons convicted of hate crimes. We have already gone a long way to do that. We will put in the Record before this debate is over some of the statistics that have been presented as to whether or not hate crimes, as defined narrowly, are really a significant percentage of crimes that are committed in this country. My attitude is, if one is committed, it is a significant percentage, but we have to be practical as well. It seems to me, since there is no showing--at least there has not been up to this date--that the State and local law enforcement jurisdictions are failing to prosecute hate crimes and prosecute them with vigor, it seems to me we are going too far with S. 625. I hope our colleagues will pay attention. I think we could really wind up not doing as much against hate crimes as we could if we would make a real effort to try to bring both bodies together. I would like to get this problem solved once and for all, and I would like to do it in a way the vast majority of us can support because I think the vast majority of Members of Congress will support a reasonably written, effective hate crime statute that does not take away the responsibilities of the State and local governments and law enforcement people to prosecute these matters. I yield the floor.

Mr. HATCH. I appreciate the remarks of my distinguished friend about the way he feels about these matters. I feel precisely the way he does. We are very close friends. I don't think you can find closer friends in the Senate. I think most people who know me know that I have very deep feelings that no one should be brutalized in our society, regardless of what their sexual orientation is. But this is a big step. If we take this bill without the death penalty, then we are actually reducing the ability of law enforcement to go after these people and to get cooperation from other witnesses and from co-perpetrators. One of my favorite programs on television happens to be ``Law and Order.'' If you watch that, you will see the prosecutors regularly use the death penalty as a tool. While fictional, this television show is based substantially on what goes on in real life. Most attorneys who watch the show are pretty impressed with the program. I am one of them. You will notice in many cases that they will use the potential of being subjected to the death penalty to get one or more of the perpetrators to testify against the others. Frankly, it is very effective on this show and in real life. I, for one, believe that the death penalty should be used only in the most narrow of circumstances. But I believe it is a tool that would certainly help in prosecuting hate crimes. It would certainly help almost every prosecutor who wants to go after violent criminals who act in concert. It certainly helps our State and local prosecutors, and it would help the Federal prosecutors. But in this particular bill that has been introduced by my distinguished friend from Massachusetts, the death penalty is taken out of the hands of Federal prosecutors. So all we are doing in this intellectual, political exercise, in many respects, is tying the hands of Federal prosecutors, while immensely expanding the Federal jurisdiction over virtually all crimes that are called ``hate'' crimes--in complete disregard for the fact that 95 percent of all prosecutions are prosecuted at the State and local level, and are prosecuted well. I know the distinguished Senator from Oregon cited the Bangerter case. The people who attacked Bangerter and hurt him were prosecuted and convicted, as I understand. There are bound to be maybe four or five cases over the last decades that weren't prosecuted. But that doesn't justify giving this wholesale expansion of state authority to the Federal prosecutors. One of the things I personally chatted about with the current Chief Justice and other Justices on the Court--one of the things I personally discussed with them--is their concern about the continual increase of the number of statutory Federal crimes when there is no evidence that the State and local prosecutors are not doing their job. The amendment I intend to file at a later time, which will be a substitute for the bill of the distinguished Senator from Massachusetts, provides for the tools and the help for those small communities, such as the one in Colorado that distinguished Senator from Oregon referred, to prosecute these crimes. Although there is no evidence that they can't do it or that they aren't doing it, my amendment makes sure that hate crimes will and can be prosecuted by providing resources. If my friend from Oregon is truly only concerned with enhancing local law enforcement--this bill, ironically, is called the Local Law Enforcement Enhancement Act. This bill takes away the authority of local law enforcement and puts it in the hands of Federal prosecutors when there is no evidence they need to do that. Nor is there any indication that we should turn over this kind of responsibility to Federal prosecutors, nor that they should have the right to come in and overrule local prosecutors in the process who are doing the job. If my colleague from Oregon is truly only concerned with enhancement of local law enforcement, I hope he will vote for my substitute which will be offered later in this debate. That is what my substitute will do--enhance and not supplant local State prosecutors. I will discuss that in detail later, and hopefully we will be able to bring it up and get a time agreement whereby we have a limited number of amendments. And that will certainly be one of them. If we win, we win. If we lose, we lose. But at least we will have debated it, and we will have had a chance to improve this bill by leaps and bounds. During our last debate on hate crimes, Senator Kennedy criticized me for arguing against the federalization of hate crimes when I have supported providing Federal jurisdiction in other, completely unrelated areas, such as computer fraud or class actions. This is the classic apples versus oranges argument. In those other cases, there has never been any serious question that the proposed Federal jurisdiction would be constitutional. I consider every piece of legislation on its own merits. The distinguished Senator from Massachusetts, a noted opponent of the death penalty, nonetheless has voted in the past for legislation that provides for the death penalty. My conviction that S. 625 is unconstitutional is in no way inconsistent or contradictory. Whether or not a State may have a specific law prohibiting hate crimes does not mean that they are failing to vigorously prosecute them. Every hate crime, every bit of criminal conduct that S. 625 proposes to federalize is and always has been a crime in every jurisdiction throughout our Nation, crimes which have been effectively prosecuted by State and local prosecutors. When we challenged the Clinton administration and the then Deputy Attorney General, Eric Holder, to come up with any examples where local prosecutors were not taking care of these problems, they could not do it. In fact, prosecutors sometimes do not like to charge a crime as a hate crime--especially when the penalties are no different because they have to prove an extra element: The motive of the defendant to commit the crime based on bias. That is an extra element that would have to be proven, and it makes it tough to get convictions in some of these cases. It is no answer to say that a State may not have a hate crime or may not be charging enough cases under a specific hate crime law. The real question is, Are States failing to prosecute hate crimes? The answer is a resounding no. I suggest the absence of a quorum.