Orrin Hatch

Mr. HATCH

Mr. HATCH. Madam President, I am happy to have the amendment set aside if I could work on it with my colleagues. I am happy to ask unanimous consent that it be set aside so that we can work on it with our colleagues and resolve any difficulties. I can't imagine any difficulties, but if there are, we will try and resolve them. If not, we will vote on it later today.

Mr. HATCH. Madam President, I rise today to offer an amendment to S. 565, the Equal Protection and Voting Rights Act of 2001. First of all, I thank my friends Senator Ensign and Senator Burns for cosponsoring this important amendment. Let me also commend my colleagues, Chairman Dodd and Senator McConnell, for undertaking an extremely arduous process leading to consideration today of legislation that is supported by half the Senate. I know this was not easy for the committee, nor their staffs, and I appreciate the hard work that led to this compromise. That being said, I do have a concern about the impact that enactment of this legislation could have on states and localities, most of whom are experiencing extreme budget shortfalls. Let me explain. Title I of the Dodd-McConnell bill includes seven new uniform and nondiscriminatory requirements for election technology and administration. These are requirements, for example, pertaining to certification of votes cast, audit capacity, and accessibility for individuals with disabilities. If enacted, these requirements would apply to each voting system used in an election for Federal office. Obviously, this language has far-reaching consequences. I appreciate the intent underlying the sponsors' legislation, which is that the system must be uniform in nature, across the entire country, if it is to be successful in accomplishing the goal of election reform. I also appreciate the committee's stated desire that the program be fully funded. That being said, the question I ask my colleagues is this: ``What if it isn't?'' What if a future Congress fails to provide adequate funding for this legislation? That goes to the heart of my amendment. My amendment is simple. It states that only fully-funded mandates will be enforceable. In other words, if Congress does not provide the funding, the States and localities won't be left holding the bag for a Federal mandate. Let me hasten to make clear that my amendment does not seek to change the mandates in this title. What it does is ensure State and local governments that we will keep our commitment in the Unfunded Mandates Reform Act of 1995. At that time, we promised the States that we would not saddle them with new mandates without providing them with the resources to implement and enforce those laws. While I believe my good friends Senator Chris Dodd and Mitch McConnell are well intentioned in their approach to election reform, as now drafted, this bill fails to protect states and localities from unfunded mandates. Adoption of my amendment would guarantee we keep this promise to our States and localities. I also believe that this amendment seeks to codify the author's intent of meeting our promises to the states. Some may argue that the Dodd-McConnell bill will fund every title in the bill. However, this argument does not hold water when weighed against the text of the bill. This bill authorizes payments to the states. Note the key word--authorizes. It does not appropriate the resources to get the job done. Given the numerous competing Federal priorities, not to mention the funding required in our fight against terrorism, there is good reason to question whether those resources will be available. I have great faith in the future of this country and in our future leaders. I do not have faith, however, that future congresses will allocate required resources for every State to purchase new equipment and to retrofit existing structures where citizens vote. S. 565 sets three hard deadlines, and the States will be held accountable for the mandated changes at each of those deadlines. Although the changes will be phased in over 4 years, all States will be responsible for implementing all provisions by 2006. The Congressional Budget Office has estimated the cost of the Dodd- McConnell bill at $3 billion. That is billion, with a ``B.'' I know that my friends Senators Dodd and McConnell fully expect this bill to be funded. I truly hope that is the case. But let us look at the hard realities. It is ethnical for us, at a time when the majority of our states are facing serious financial difficulties, when some, such as my home State of Utah are cutting off health care benefits to children and closing prisons, to even suggest they foot the entire bill for these new mandates? I think not. Our amendment simply declares that States will not be held accountable for any mandated provisions in S. 565 until sufficient funds have been appropriated. I think it would be prudent, even if we are able to fully fund these mandates, to have this provision in the bill as a safety net. Let me also note that this amendment has the support of state and local governments. Madam President, I ask unanimous consent that letters from various State and local officials be printed in the Record.

Mr. HATCH. Madam President, this modification expresses the sense of the whole Senate to do what both Senator Dodd and I are so concerned about. It shows that all 100 Senators agree with Senators Ensign, Burns, Thomas and me that full funding of this act must be guaranteed to states and localities. While this is not the version of the amendment that I would have preferred, I believe that it will assure the supporters of the original amendment that there will be appropriate funding. I urge adoption of the amendment, as modified.

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

Mr. HATCH. Madam President, I rise to offer another amendment to the bipartisan Equal Protection and Voting Rights Act of 2002. First let me thank my colleagues Senators Dodd, McConnell, Bond, Schumer, McCain, Torricelli, and others for all the hard work that they have put into this bill. I also want to thank Senator Leahy for cosponsoring this amendment, which will lay the groundwork for integrating new technology into the political process. Senator Leahy's knowledge and support of technological issues made his input invaluable. As Americans, we have the right to participate in the greatest democracy in the world, and most will agree that the act of voting is the bedrock of our democratic society. Americans take pride in the role they play in shaping issues and determining their leaders, and yet, we see that voter participation in recent years has decreased among people of all ages, races, and gender. I find these statistics both disappointing and tragic because, as Thomas Jefferson stated, ``that government is the strongest of which every man himself feels a part.'' Why is voter turnout so low? Of the 21.3 million people who registered but did not vote in the 1996 election, more than one in five reported that they did not vote because they could not take time off of work or school or because they were too busy. Can technological advances, like the Internet, increase participation in the electoral process by making voter registration easier or by simplifying the method of voting itself? As the elected representatives of the people, we should consider every option available that might help involve more of our country's citizens in America's democratic process. Federal, State, and local governments are duty bound to encourage all eligible Americans to exercise their right to vote. In the past, attempts have been made to increase voter registration and turnout. Unfortunately, these attempts have met with limited success. The Motor Voter Act of 1993, for example, attempted to increase voter participation by permitting the registration of voters in conjunction with the issuance of driver's licenses. According to the U.S. Census Bureau, 28 percent of the 19.5 million people who have registered to vote since 1995 have done so at their local Department of Motor Vehicles, the single highest method compared to any other form of registration. Notwithstanding this simplified voter registration procedure, voter participation continues to decline. Although registering to vote at the DMV generally is more convenient than other methods of registration, a substantial portion of registered voters nevertheless continue to fail to register to vote and fail to go to the polls on election day. Voting via the Internet has been suggested as one possible solution to the problem. The Internet has revolutionized the way people communicate and conduct business by permitting millions of people to access the world instantaneously, at the click of a mouse. The Internet has already increased voter awareness on issues of public policy as well as on candidates and their views. In the future, the Internet may very well increase voter registration and participation, and thereby strengthen our country's electoral process. As many of us have seen in the recent past, more and more states are looking at ways to utilize the Internet in the political process. Proposals include online voter registration, online access to voter information, and online voting. State and local officials around the country are anxious to use the Internet to foster civic action. I think that this is a positive step. Real questions remain, however, as to the feasibility of securely using the Internet for these functions. How can we be sure that the person who registers to vote online is whom he or she claims to be? How can we ensure that an Internet voting process is free from fraud? How much will this technology cost? There are also important sociological and political questions to consider. For example, will options such as online registration and voting increase political participation or could the Internet be equitably used in the political process? These and other questions deserve our attention. The Hatch-Leahy amendment addresses these issues in two ways: No. 1, it establishes an advisory committee that will provide a necessary framework for discussing the possible uses and abuses of the Internet in the voting process; And No. 2, it directs the Attorney General to review existing criminal statutes and penalties and to report to Congress and the advisory committee whether additional penalties for interfering with online registration and voting are needed. No American who has exercised his or her rights to vote should ever have to wonder if their properly cast vote will be counted. We must preserve the integrity of the voting process and I commend the efforts of those who have drafted this bill. The Hatch-Leahy amendment complements the bill and will help to ensure the legitimacy of the voting process. As we continue to address the current problems with our voting process, we can and should take this opportunity to examine the impact of new technologies on our elections. Many States already allow for portions of the voter registration process to be completed online. The Arizona State Democratic Party allowed online voting in the 2000 presidential primary and nearly 36,000 Arizona Democrats took advantage of this opportunity. We can anticipate that this trend toward online voting will continue. To make clear our desire to hold elections free from fraud, this amendment requests the Attorney General to study whether our criminal code provides adequate penalties to punish and deter interference with online registration and voting. The Hatch-Leahy amendment will also create the ``Advisory Committee on the Internet and the Electoral Process.'' This committee, comprised of federal, state, and local officials, as well as representatives of the high-tech industry and academia, will investigate the practicality, feasibility, and advisability of using the Internet in the voting process. The report generated by this committee will provide a much needed framework for discussing important issues related to Internet voting. New technology has enhanced many aspects of our lives, and perhaps it can be used to enhance our civic lives as well. Can registering and voting online really work? We must carefully evaluate the issues that will arise as the civic privilege of voting meets with technological advances. Proponents of ``electronic voting''--so-called e-voting''--contend that there are numerous advantages to this emerging type of ``cyber'' political participation, including the immediate disclosure of campaign contributions, an increase in the number of grassroots volunteers, and the creation of a more accessible forum for political advertising. Skeptics assert, to the contrary, that e-voting would only serve to decrease ``real'' electoral participation, place personal privacy at risk and pave the way for election fraud. The late Senator Sam Ervin opposed simplifying voter registration and voting, stating that he did not ``believe [in] making it easy for apathetic, lazy people'' to vote. I do not know whether online voter registration and e-voting will halt the decline in voter participation; I do not know whether online voter registration and e-voting even is wise. I firmly believe, however, that this issue deserves serious examination as we seek to ensure that our democratic republic engages as many citizens as is possible. As we seek to ensure equal access to the voting place and the integrity of the voting process, it would be irresponsible of us to ignore the potential effects, both good and bad, that new technology will have on the political process. The importance of the issue demands we take the opportunity to explore these possibilities. The Hatch-Leahy amendment proposes important forward-looking measures that will ensure our ability to properly integrate new technology in the political process. Madam President, I yield the floor on this amendment. Then I will bring up one more amendment.

Mr. HATCH. If you are willing to accept the amendment, that will be fine.

Mr. HATCH. Shall we wait on that with the understanding you will check and see?

Mr. HATCH. That is fine.

Mr. HATCH. Madam President, I ask unanimous consent that my amendment be temporarily laid aside and I be permitted to bring up one more amendment.

Mr. HATCH. Madam President, I send another amendment to the desk. Mr. SPECTER addressed the Chair.

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

Mr. HATCH. Madam President, I ask unanimous consent to use one of Senator McConnell's relevant amendments.

Mr. HATCH. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 2935

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

Mr. HATCH

Mr. HATCH. Mr. President, nothing the Senate does ths session will be more important than passing a good farm bill that provides a strong safety net and some certainty for our Nation's farmers. I believe that Chairman Harkin has put forward a sincere effort to accomplish these goals. However, I find that much to my regret, I must vote against this legislation. There are a number or provisions in the bill that lead me to this conclusion, but chief among them is that it puts at risk our system of water rights in the West. I refuse to compromise Utah's water rights. Under this bill, farmers would be required to sell or lease their water rights to the Federal Government if they choose to participate in a specific conservation program. This sets a terrible precedent. I strongly oppose using Federal dollars to encourage farmers to give up their water rights. The Federal Government has enormous financial resources with which it could purchase unlimited acre-feet of precious water in the West. I cannot support a large incentive aimed at stripping our farmers of the resource that makes our way of life possible in the West. The water conservation program I am referring to would also create an unprecedented link between the Endangered Species Act and farm programs. I have no doubt that this will lead to conflicts between the goals of the act and the livelihood of our farmers. From what I have seen, when such a conflict arises the farmer always loses. Our farm families struggle enough. We shouldn't add to this burden. From a broader perspective, I disagree with the overall approach of this farm bill. I believe it is a return to the outdated, socialistic farm policies of the past. As it is written it, 60 percent of farmers will not benefit from the programs in this bill. The bill provides many billions of dollars on subsidies for overproduced commodity crops such as wheat, cotton, and corn. These crops are important, but what about the many crops being grown by other farmers? In my opinion, the Harkin farm bill does too little for farmers of minor crops, who face just as many difficulties as the farmers of the main commodities. Still, it is very difficult for me to vote against the farm bill today, because there are provisions in it that Utah's farmers desperately need. I was particularly pleased that the Wool Marketing Loan Deficiency Payment Program for our struggling wool growers was included. This was one of my top priorities. Also important, was the passage of the Baucus amendment, which I supported, that would give needed emergency financial assistance to livestock producers and apple growers who have suffered losses due to drought conditions. Finally, I was able to add a provision that would begin the process of creating a free market for state inspected meat products. Of course, I will fight to keep these provisions in the bill as it goes through the conference committee. These and other aspects of the farm bill are worthy of my support. However, I do not believe we should benefit farmers on one hand, and threaten their livelihoods and water rights on the other. That is not what a Farm Bill should do, and for that reason I oppose it.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to express my full support for the amendment by Senator Crapo, which I have cosponsored. The purpose of this amendment is to strike section 215 of the farm bill, which we are considering today in the Senate. This section would create a program allowing the Federal Government to purchase the water rights of farmers and others for the purpose of protecting the habitat of certain endangered or threatened species. While protecting the habitat of threatened species is a worthy goal, one which I have supported, this amendment has the unacceptable consequence of putting in jeopardy our system of State water rights. Let me elaborate. Under this program, private landowners, tribal groups, farmers and other organizations who participate would be required to sell or lease their water rights to the Federal Government. I strongly oppose using federal dollars to establish an incentive for private entities to give up their water rights. The Federal Government has tremendous financial resources and, given free reign, could buy up unlimited acre-feet of precious water in the West. As some of my colleagues already know, Utah is the second driest State in the Union. Water is the lifeblood of Utah, and it is in short supply. It was only a matter of hours after the first pioneers entered the Salt Lake Valley that they began to break up the dry desert, plant seeds, and dig irrigation canals, bringing the precious water from Utah's snowy mountains to their thirsty lands. It was these farmers--my ancestors--who made Utah blossom like a rose. The families of those original pioneers and their limited water resources have continued to keep Utah's agricultural industry strong. But it has not been easy. This program will create an incentive to strip Utah's farmers of the very thing that makes their livelihood possible. Although the program is said to be voluntary, even farmers who choose not to participate in it could experience a number of adverse effects because of the participation of a neighbor. Erosion or additional weeds and dust resulting from the disuse of adjoining land--because of this program--or the introduction of species listed under the Endangered Species Act to these program lands could have a negative impact on the livelihood of neighboring farmers. I am also concerned that section 215 makes considerable changes to existing programs without a proper discussion of those changes in the relevant committees. For example, it creates an unprecedented link between the Endangered Species Act and farm programs. From what I have seen, when the goals of the Endangered Species Act and the needs of farmers come into conflict, the species wins and the farmer loses. I am also concerned with the language of this provision that appears to create a new ``sensitive species'' category for protecting wildlife. Finally, I am concerned that this language gives powers to the Secretary of Agriculture that have previously only been held by the Secretary of the Interior. This is yet another major policy shift. Changes of this magnitude should not be acted on by the full Senate without the benefit of committee hearings. I urge my colleagues to support Senator Crapo's amendment to strike this section 215 from the Farm Bill until such time that further light can be shed on its implication for farmers. And I remind my colleagues that the Farm Bill is meant to help our farmers, not hurt them. Amendment No. 2839

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased that we are considering today the nominations of two very well-qualified nominees for the Federal courts. Our circuit nominee is Judge Michael Melloy, who has been nominated for a position on the U.S. Court of Appeals for the Eighth Circuit. Judge Melloy has impeccable credentials for this position: He has served for the past decade as a Federal District court judge in Iowa, and he served as a bankruptcy court judge for six years before then. In his capacity as a district judge, he has had the honor of having been invited to sit by designation with the Eighth Circuit. I am certain that his distinguished experience will serve him well as he makes the move to join the Eighth Circuit on a permanent basis. Today's district court nominee is Jay Zainey, whom we are considering for the Eastern District of Louisiana. Mr Zainey is an experienced private practitioner who has earned the respect of his colleagues, as reflected in his election as president of the Louisiana State Bar Association. One of the remarkable achievements during his tenure as President was the creation of the first state bar committee in the nation to provide legal referral services for the disabled. He will undoubtedly be a welcome addition to the Eastern District bench. I have every confidence that both of these nominees will serve on the federal courts with distinction. I commend President Bush for selecting them, and I thank Chairman Leahy for holding hearings and committee votes on them. I do note that five other district court nominees were unanimously voted out of committee last week along with Judge Melloy and Mr. Zainey. Given this strong endorsement, I urge the Senate to give their nominations timely consideration as well. Before I yield the floor, I would like to briefly address our progress on judicial nominees so far during this session of Congress. I began this session on an optimistic note about our opportunity to address the vacancy crisis that plagues the federal judiciary. Nearly 100 seats on the federal bench are presently empty. High numbers of vacancies in the federal judiciary can only result in delay of the administration of justice. And, as Justice Oliver Wendell Holmes once stated, and as some of my Democratic colleagues have observed in the past, ``Justice delayed is justice denied.'' There is simply no viable alternative to confirming judges if we are to make a bona fide effort to fill the vacancies in our Federal judiciary. Despite some of the negative rhetoric and distortions of the record I have heard over the last couple of weeks, I am still optimistic about our chances for success. As I have mentioned before, we are off to a good start. But we still have much work left to do. Last May, President Bush nominated 11 extremely well-qualified nominees to the circuit court of appeals, but only 3 of them have had hearings thus far. Less than one-third of the administration's total appellate nominees have had hearings. So while we are off to a good start, there is much work left to be done. In 1994, President Clinton's second year in office, the Senate confirmed 100 judicial nominees. I am confident that, with diligence and determination, we can replicate that feat this year. I pledge to work with my Democratic colleagues to get hearings and confirmation votes for our pending judicial nominees. Thank you, Mr. President. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I join in the remarks of the distinguished Senator from Texas, and I rise also to express my enthusiastic support for Philip R. Martinez who has been nominated to be a U.S. District Court judge for the Western District of Texas. Judge Martinez is an extremely well-qualified nominee who has distinguished himself with hard work, and he has a fine intellect. He will do great service for the citizens of our country. Judge Martinez graduated from Harvard Law School in 1982 and thereafter developed a commercial litigation practice involving antitrust, securities fraud, deceptive trade practices, contract, and, of course, banking issues. He was elected to serve as a judge in El Paso County Court of Law No. 1 for a 4-year term beginning in January 1991, and he resigned this position in October 1991 to accept appointment by the Governor to the 327th Judicial District Court. He was subsequently elected to this position for a 2-year term beginning in January 1993 and reelected for consecutive terms thereafter. Clearly, he has the experience and temperament required for this position. While I am speaking about Judge Martinez's qualifications, I would be remiss not to make an observation or two about how judge Martinez's nomination fits into the bigger picture of how the Senate is treating judicial nominees this year. As I mentioned 10 days ago, I think we started off the session with appropriate diligence. Chairman Leahy scheduled a hearing the first week we were in session on one circuit court nominee and five district court nominees. That same week we voted on two district court nominees that had been held over from the end of the last session. Yesterday we had a vote on Callie V. Granade, and after today there will be no more holdovers from last year. So I commend the chairman and the Democratic leader for getting off to a good start. Judge Martinez's nomination also provides a useful example of how, contrary to some unsupported insinuations, the White House has worked with us, consulted appropriately, and reached across the aisle to find good bipartisan nominees. Judge Martinez, who belongs to the El Paso County Democratic Party, received strong support from both of his home State Senators. He is a highly qualified Hispanic of Mexican descent who will add an important point of view to the bench. I sincerely hope that our record so far this year is not a false start. The Judiciary Committee in the Senate should continue to step up the pace of hearings and votes on judicial nominees. No one can dispute that we have plenty of work to do. Taking account of today's vote, there are 98 vacancies on the Federal judiciary. We have received 24 new nominations already this year. Added to the 34 nominees after today who saw no committee action last session, we will now have a total of 59 nominees pending in the Senate. I am optimistic that we will confirm all of these and then some. Our yardstick for 2002, President Bush's second year in office, is 1994, the second year of President Clinton's first term. That year the Senate confirmed 100 judicial nominees. I am confident the Republicans and Democrats can work together to achieve and perhaps even hopefully exceed 100 confirmations in 2002. So I look forward to working together with Chairman Leahy and my colleagues on both sides of the aisle and on both sides of the committee to accomplish this goal. I appreciate the work of my colleagues on the other side in doing this work, because the Federal judiciary is in a crisis and we have to do something about it. The best we can do is take these nominees up and vote on them and hopefully get them confirmed so they can get on the bench and help us during this time of crisis where we do have an awful lot of pressure on the Federal judiciary. I appreciate, Mr. President, that you are a member of Judiciary Committee, and I just want to remark on your fine work on the committee through the years. With that, I yield the floor and suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Madam President, earlier today I spoke with praise for the way in which the Chairman of the Judiciary Committee and the Democratic Leader have been handling judicial nominations in the past few weeks. One of the reasons I did so was that I detected, in a speech 11 days ago, the possibility that the Judiciary Committee may be headed in a new direction as we begin a new Session of Congress. I sensed a chance that, after eight months of Democratic control, the leaders were growing beyond their previous role of critics focused on the past. I perceived that the leaders might now understand the value of looking forward through the windshield rather than steering a course with their eyes glued to the rear-view mirror. I have not given up this hope; it is still early enough to start this Session out on the right foot. But I now have some reason to question my optimism. Comments were made here on the floor earlier today that have put me in the position, once again, of having to set the record straight on a number of events that occurred between 84 and 14 months ago. I do not regard this recurring debate over the past as germane to the present or important to our course for the future. Nevertheless, I am compelled to make sure that the historical record is correct. One comment that particularly surprised me was the attempt to blame the previous, Republican-controlled Senate for the creation of the current number of judicial vacancies. The fact is that the Republican Senate confirmed essentially the same number of judges for President Clinton, 377, as the Republican Senate did for President Reagan, 382, so there is simply no basis for the Democrat's allegations. Interestingly, the Democrats who controlled the Senate during the first President Bush's Administration left more judicial vacancies and allowed more nominees to go without Senate action when the first President Bush left office than the Republicans did when President Clinton left office. The bottom line is that, at the close of the 106th Congress, there were only 67 vacancies in the Federal judiciary. In the space of one Democratic-controlled congressional session, that number had shot up to nearly 100. How did this happen? The answer is simple: The pace of hearings and confirmations under the Democratic-controlled Senate last year did not keep up with the pace of vacancies. We were moving so slowly that we were actually falling behind. When our friends across the aisle took control of the Senate on June 5 of last year, President Bush had already sent 18 judicial nominees to the Senate. All told for the year, President Bush nominated 66 highly qualified individuals to fill vacancies in the federal judiciary. But rather than focusing on the work ahead, our Democratic colleagues looked back at the year 1993 to mimic the old route taken then. After delaying their first nominations hearing by over a month, during which time they held numerous hearings on other matters, our Democratic colleagues confirmed precisely 28 judges, exactly one more federal judge than President Clinton saw confirmed during his first year in office. This transparent tit-for-tat exchange of confirmations is rear-view-mirror driving at its worst. In the first 4 months of Democratic control of the Senate last year, only 6 federal judges were confirmed. At several hearings, the Judiciary Committee considered only one or two judges at a time. The Committee voted on only 6 of 29 Circuit Court nominees in 2001, a rate of 21 percent, leaving 23 of them without any action at all. Eight of the first eleven judges that President Bush nominated on May 9 of last year have still not even had a hearing. In contrast, there were only 2 Circuit Court nominees at the end of President Clinton's first year left in Committee. If the Democratic leaders can take their eyes off the rear-view- mirror and take a look at what is ahead, they will see the rather obvious need to speed up the pace of hearings and votes on judicial nominees. We have lots of work to do. There are 98 vacancies in the federal judiciary, a vacancy rate of nearly 12 percent. We have 58 nominees pending in the Senate. Twenty-three of those nominees are slated to fill positions which have been declared judicial emergencies by the Administrative Office of the Courts. Of those, 13 are court of appeals nominees. Particularly important are those areas with a high concentration of judicial emergencies, such as the 4th Circuit Court of Appeals with 2 nominees; 5th Circuit Court of Appeals, where 2 nominees are pending; the 6th Circuit Court of Appeals with 7 nominees pending; and the District of Arizona, where 2 nominees are pending. Let's roll up our sleeves and get to work on these. Another issue that was raised today was the role of the White House in this process. The fact is that the Bush administration has worked more closely with home State senators than any other administration since I have been in the Senate. Now, I know there were a couple of instances very early last year where communication could have been better, but that is bound to happen with a brand new administration. Since that time, the Bush White House has been making unusually great efforts to consult with home State senators prior to making nominations. I do not know exactly from where the complaints, if any, are coming, but I have a suspicion that some of my colleagues are forgetting the difference between the President's power to make nominations, and the Senate's role to provide advice and consent. Some Senators may wish they could exercise the President's constitutional role instead of their own, but there is no reason to blame the White House for sticking with the allocation of power established by the Framers. If there are any real problems, I invite my colleagues to let me know about them, and I pledge to do my utmost to assist in working through them. Today's comments concerning the need for more ``consensus nominees'' from the White House are ironic in light of my colleague's discussion of several specific Clinton nominees for the districts in Texas. My colleague rhetorically asked why those nominees did not get a hearing, but he knows full well that at least a couple of the situations he mentioned were caused by serious problems created by the Clinton Administration's lack of consultation with, and failure to obtain the support of, home State senators. In contrast, President Bush's nominees, with only a couple of early exceptions, as I noted, enjoy the full support of both home State senators. We should hold hearings and votes on those without delay. Let me mention one in particular that means a great deal to me: Michael McConnell, a nominee for the Tenth Circuit Court of Appeals. Professor McConnell is a consensus pick not only between his home State Senators but also among many others who know his scholarship, his temperament, and his commitment to the rule of law. His nomination has been applauded by legal scholars and lawyers from across the political spectrum. Professors Laurence Tribe, Charles Fried, Cass Sunstein, Akhil Amar, Larry Lessig, Sanford Levinson, Douglas Laycock, and Dean John Sexton are among those who have praised McConnell's integrity, ability, and fairminded approach to legal issues. He enjoys broad support among the bar and the academy in his home State of Utah. On a broader level, McConnell is regarded as fairminded and nonpartisan. He publicly opposed the impeachment of President Clinton, and wrote in support of the position taken by Justices Souter and Breyer in Bush v. Gore. He was part of the volunteer legal team that successfully defended Chicago Mayor Harold Washington, the city's first African American mayor, in a dispute with the Board of Aldermen. McConnell wrote an article in the Wall Street Journal suggesting the nomination of Stephen Breyer to the Supreme Court, and supported a number of Clinton judicial nominations. These facts are among the reasons that McConnell's appointment has been praised by a number of former Clinton administration officials, including Acting Solicitor General Walter Dellinger, Deputy White House Counsel William Marshall, Domestic Policy Advisors Bill Galston and Elena Kagan, and Associate Attorney General John Schmidt. Professor McConnell is best known in academic circles for his scholarship in the area of Free Exercise. He has generally sided with the ``liberal'' wing of the Supreme Court on this issue, arguing for a vigorous protection for the rights of religious minorities. In one opinion, Supreme Court Justice Antonin Scalia described McConnell as ``the most prominent scholarly critic'' of Scalia's more limited view of Free Exercise rights. In the related area of Establishment of Religion, McConnell has argued that religious perspectives should be given equal--but not favored--treatment in the public sphere. Thus, he has testified against a School Prayer amendment, while supporting the rights of religious citizens and groups to receive access to public resources on an equal basis. This record indicates a thoughtful and principled approach that is worthy of great respect from all sides. Professor McConnell will be a careful, thoughtful and unquestionably fair judge when he is confirmed to the Tenth Circuit. We should have voted to confirm him last summer. There is certainly no reason to put off his hearing any further. As I said at the beginning of my remarks, I am optimistic that the committee will continue the good start we have made in the past 2 weeks. There is no reason not to. We have plenty of work ahead of us. For those who look to the past for guidance, note that in 1994, the second year of President Clinton's first term, the Senate confirmed 100 judicial nominees. I am confident that Republicans and Democrats can work together to achieve, or even hopefully exceed, 100 confirmations in 2002--President Bush's second year in office. I look forward to working together with Chairman Leahy and my colleagues on both sides of the aisle to accomplish this goal.

Mr. HATCH

Mr. HATCH. Mr. President, I have not fully read the FMAP part of the distinguished Senator's amendment, but I am interested in helping the States at this particular time because many of them are experiencing budget crunches, and it is really causing them a lot of difficulty. With regard to the CHIP program, which was a Hatch-Kennedy bill that was enacted over 4 years ago, my home State of Utah has now achieved the goal of insuring 27,000 children of people who work but do not have enough money to pay for their children's health insurance. In Utah, we have covered 27,000 kids, but there are at least 3,000 more who need to be covered. Due to State budget concerns, Utah has had to cap its CHIP program at 27,000. Now that is not right. I cannot blame my State leaders. They have to balance the budget, but it is not right that any child in our society should go without basic health care. The very poor in our society are covered by Medicaid. What we did with the CHIP bill was try to take care of those 7 million young people in the country who are children of the working poor. The parents of these children work but do not earn enough money to pay for health insurance but make too much money to be eligible for the Medicaid program. CHIP has worked immensely well. It has been one of the most successful health care programs in the country. I have worked on a number of important issues throughout my Senate career, and I think that passage of the CHIP program was one of my top achievements as a United States Senator. Providing access to affordable and quality health coverage to the medically uninsured continues to be a high priority for me. So while I have to read the amendment language, I believe it is an important amendment, and I intend to support it as of this juncture. With regard to bonus depreciation, I was the first Senator to file a bonus depreciation bill. My bill provided for a 50-percent bonus depreciation deduction rather than the 30 percent in this amendment. But remember, some of the other bills were only at 10-percent bonus depreciation, and I am pleased to see that this amendment would now bring it to 30 percent. I am very happy to see the work of Senator Smith and the distinguished chairman of the Finance Committee, whom I call a friend, in bringing this bonus depreciation percentage to a reasonable level. I would prefer it to be even higher because that would be even more stimulative over this 2-year period, but this is a good move compared to where we were. If we had gone with the Daschle amendment, as I understand it, it would have been effective only from last September until next September. It would have barely had time to work. So this amendment does bring the bonus depreciation more into the realm of workability. Bonus depreciation is one of the few things we are doing in this legislation that literally provides for an economic stimulus. It is a very good economic stimulus because a lot of companies are understandably nervous about the economic slow-down and are hesitant to invest in their equipment. With a bonus depreciation incentive, they may be able to pull out of some of their difficulties with this additional help that will be provided. With regard to the FMAP increase included in this amendment, these provisions will assist those who are suffering in our society today due to the economic downturn. In addition, there are States that are having tremendously difficult times meeting the needs of their citizens. The FMAP increase will provide these States with valuable resources so they can meet these demands more easily. So I want to commend the distinguished Chairman of the Finance Committee for calling up this amendment. I particularly want to commend him for working with Senator Smith of Oregon, who brought up the original bonus depreciation amendment but who wanted the incentive to last for 3 years. We compromised on 2 years, which I believe is a decent compromise. I want to pay my respects and compliment both of them for the work they have done on this particular amendment. I yield the floor.

Mr. HATCH. I rise in support of this amendment, recognizing the need for Congress to undertake immediate corrective measures to help those who have suffered the adverse effects of the recent economic downturn. And while I do support this amendment, there are issues associated with it that are of serious concern, issues which I hope will be addressed in conference. As we have heard throughout this debate, most states are experiencing serious budget shortfalls. In fact, in my own state of Utah, many vital state programs are slated for reductions this year. I am very concerned about that situation, and sympathetic to the need to work with the States to alleviate these concerns where we are able. But it is also true that the Federal budget is under severe pressure because of the economic slowdown, and we must be very careful when we move to authorize what amounts to new spending, especially in an entitlement program. Obviously, we must carefully examine our budget constraints and balance the need to address the economy with the need to restrain the growth of spending. But as I have said, I share the States' concern about the budgetary impact of the economic downturn. Many important programs are being cut- back, a serious concern to those of us who have worked so hard to weave a strong safety net. In fact, the Utah CHIP program is no longer enrolling new children because it is running out of money. I cannot tell you how disappointed I am about this situation. Seeing the CHIP program become federal law in 1997 was probably one of my proudest accomplishments as a U.S. Senator. And, as one of the principal authors of CHIP, it has been my hope that we can expand the program, not scale it back. However, my discussions with our Governor, Mike Leavitt, have made it perfectly clear that the State feels it has no alternative, and I respect that decision, however painful. But, perhaps if we are giving additional funds to the States to assist with the health care needs of the low income, those funds would be better used if they were provided to the CHIP program as well, or instead, since in many cases a CHIP dollar can go so much further than a Medicaid dollar. I would also point out that increasing the Federal matching percentage for Medicaid is only a short-term solution to a long-term problem. Again, I heartily support efforts to provide greater assistance to families, especially low-income families, who are feeling the ill effects of the economic downturn. That being said, I do question whether expanding this entitlement program is absolutely the best way to address the health care needs of people who have been hurt by the economy. There are literally millions of persons who have no access to health care at all, and their needs must also be factored in to our overall spending plans. Let me take a moment to address the FMAP funding formula itself. The FMAP formula is an attempt to direct Federal resources to the States based on their populations in need. It is not a perfect formula, as many of us have widely acknowledged. These structural flaws must be addressed by Congress, and I would not like to see action today which would lock into concrete, in reality or politically, a formula which needs to be reexamined. As a related issue, we need to look at the effect of providing a 1\1/ 2\-percent across the board FMAP increase to States for a program which is certain to have a disproportionate impact in the various States given their differing matching percentages. For example, some States have a Federal matching percentage which is relatively high, as high as 76 percent. Others have a percentage as low as 50 percent. Obviously, a 1.5 percent increase is a substantially greater proportion of the 24 percent a State with the highest FMAP has to contribute, compared to 1.5 percent of the 50 percent a ``richer'' State must contribute. The GAO has produced several reports which make recommendations on how this formula may be improved. Therefore, I believe that it would be prudent for Congress to carefully review the recommendations of the GAO before taking any final actions affecting FMAP policy. In fact, I believe it might be prudent for the Finance Committee to hold a hearing on this important issue, and I would hope that the chairman might schedule one in the near future. In addition, while I have not seen any figures on areas which are the most hard hit by the recession, I want to make certain that the areas in which we are targeting the greatest assistance under this amendment are the areas of greatest need during the downturn. Because of the way the formula is structured, these additional FMAP dollars may not be targeted to those whose access to health care was affected by the recession and the events of September 11. Finally, it is my hope that this amendment does not follow the long tradition whereby Congress authorizes an extension for an entitlement program which for all intents and purposes becomes permanent. I certainly support the intention of this amendment, which is to provide temporary assistance to those who have suffered great hardships due to the recession and the terrorist attacks of last September. However, making these FMAP increases permanent would be a terrible mistake, especially since I believe that we would be, in essence, taking away dollars from other deserving Federal programs.

Mr. HATCH

Mr. HATCH. Mr. President, on behalf of myself and Senator Bennett, I have sent this amendment to the desk. This is an amendment to the underlying bill. The amendment we offer today would add a provision that is much needed for any economic stimulus bill--a temporary enhanced net operating loss carryback provision. Simply stated, this amendment would help distressed American companies, including a number of them in my home State of Utah, deal with losses they have been experiencing as a result of the terrorist attacks and as a result of the economic slowdown. And it will help those employees who are going to lose their jobs unless we help these distressed companies. Over the past months, as both Houses of Congress have worked toward developing various legislative packages to stimulate the economy, there is one provision that has been common to practically every plan--a provision to enhance the net operating loss carryback to make it more beneficial to distressed companies and their employees. This provision was in both of the House-passed stimulus plans, it was in the Democratic plan passed out by the Finance Committee last November, and it was in the compromise plan developed by the Senate Centrists. In short, the concept of temporarily increasing the carryback period for net operating losses to get quick relief to corporations that have paid taxes in recent years but are now losing money is one that is widely supported on both sides of the aisle. It is supported because it helps these distressed companies and their employees, who are likely to lose their jobs if we do not do something. There are two major differences--which we consider improvements-- between the net operating loss amendment we are offering today and the provision that is included in all the other economic stimulus plans. The first difference is in the length of time that the net operating loss can be carried back to previous years. This period is 5 years in the other stimulus bills, compared with a 2-year carryback period allowed by current law. Our amendment would go further and allow a 7-year net operating loss carryback. This is important for distressed companies with large losses or that have been losing money for several years because of the economic slowdown and various other matters that are beyond their control. Companies such as these often have no taxable income within the past 5 years to which they can reach back and offset losses. For these companies, a 5-year carryback simply provides no relief. Allowing them to go back 7 years offers them a better chance to immediately offset these losses and get the quick relief they need. The second difference between this amendment and the other net operating loss provisions is that, for the 6th and 7th years of the carryback period, our provision includes a $50 million cap per company per year on how much net operating loss can be carried back. In other words, the amendment limits the amount of immediate tax refund that a distressed company is able to get from going back beyond 5 years to $50 million. This limitation both keeps the estimated revenue loss of this provision down to a reasonable level and also eliminates the suggestion that these companies might be getting a windfall in refunds from these earlier years. A few commentators have argued that a net operating loss relief provision does not belong in an economic stimulus bill. I strongly disagree. Companies that are losing money face some very hard choices. One option that is a very difficult one, but one that is being turned to more and more as the economic slowdown continues, is that of laying off workers. Such layoffs, of course, are devastating to the families involved and to our entire economy. One reason for this is these displaced workers begin to slow down their consumer spending in order to conserve their money. Moreover, layoffs have the effect of lowering the confidence of other consumers who become worried that their jobs could also be lost. One of the best ways to prevent layoffs, in my view, would be to help distressed companies that are experiencing losses through an enhanced net operating loss carryback provision. By allowing these companies to get immediate refunds of their previously paid taxes can keep some of these businesses viable, so they do not need to turn to layoffs for relief. Extra cash in the form of tax refunds can help these companies ride out the recession storm. The Internal Revenue Code has long included provisions allowing taxpayers to offset losses with gains in other tax years. This is only fair because the designation of the tax year, whether a calendar year or a fiscal year, as the proper measurement period for computing tax liability is purely arbitrary. Many companies have business cycles that exceed a year in length, and some have shorter cycles. Any kind of limit we place on the ability of businesses to carry back or carry forward the loss they might incur in 1 year to another year where taxes were paid artificially reduces the fairness of the tax system. Because of the realities of administering the tax system, it is obvious that we must have some kind of limits on the number of years to which we can carry the losses, but there is nothing magical about the current law limitation of 2 years for carrybacks and 20 years for carryforwards. Indeed, the carryback period was 3 years until the 1997 tax act shortened it to 2 years. Thus, if we can increase fairness and help distressed companies by allowing them to carry tax losses back 7 years, rather than 2, we certainly ought to do so. This amendment does not add a permanent extended net operating loss provision carryback period to the Internal Revenue Code. Rather, it is designed to help alleviate losses incurred by taxpayers only in tax years that end in 2000, 2001, and 2002. After this period, the carryback period would revert to the 2 years now in the law. I might add, that the revenue effects of timing changes such as these are relatively short-term. For example, the estimated loss to the Treasury for the 5-year net operating loss provision passed by the House in December was about $1.6 billion. However, the 10 year loss was estimated to be only $271 million. This is because most of the loss reverses itself within the 10-year budget window. While the Joint Committee on Taxation has not yet estimated the cost of the 7-year carryback provision in this amendment, it is also likely to be largely reversed within 10 years. In conclusion, this is a common-sense amendment that adds a provision that is in every other economic stimulus plan, and that has support from both sides of the aisle. If we want to help distressed companies avoid the layoff option, this is an excellent place to start. In addition, this amendment would increase tax equity. I urge all of our colleagues to support it. It is in the best interests of the distressed companies, those companies that have had a difficult time over the last number of years. It is in the best interests of the employees of those companies because those employees will stand a much better chance of not being laid off. Third, it is in the best interests of everyone because it will stimulate the economy. This is a good amendment. I hope our colleagues will support it. I hope it will win by an overwhelming margin. I yield the floor.

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

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

Mr. HATCH

Mr. HATCH. Mr. President, I thank my colleague. I commend him for being willing to file this amendment today. I rise to speak in support of the amendment of the distinguished Senator from Colorado to extend permanently the research credit. This amendment we offer today is simple and straightforward. It would extend permanently the credit for increasing research activities, commonly known as the research credit or the R&D credit. This provision was an important contributor to our robust economic growth of the last half of the 1990s. Let me explain why this amendment is necessary. In July 1999, the Senate voted to make the research credit permanent. Unfortunately, the House version of the 1999 tax bill included only a 5-year extension of the credit. The 5-year extension did prevail in the conference. Unfortunately, that bill was vetoed by President Clinton for reasons unrelated to the research credit itself. However, in November of 1999, Congress passed and President Clinton signed the Ticket to Work and Work Incentives Improvement Act, which included a 5-year extension of the research credit. Therefore, the credit was extended to June 30, 2004. In mid-2000, the Senate again had the opportunity to vote on a permanent extension of the research credit. While we were debating that year's version of the death tax repeal bill, Senator Baucus and I offered an amendment to make the research credit permanent. The Senate passed the amendment with a vote of 98 to 1. Once again, President Clinton vetoed the underlying bill. Again last May, as we debated the 2001 tax cut bill, I offered an amendment to extend permanently the research credit. That amendment was withdrawn, but the provision was included in a managers' amendment that was approved by the Senate. Unfortunately again, however, the permanent research credit was dropped in conference and the credit was not extended. Thus, as it stands under present law, the research credit is scheduled to expire on June 30, 2004. This is most unfortunate, Mr. President, because in 2004 the Congress and, more importantly, America's business community will once again have to go through the complete rigmarole of on-again, off-again uncertainty of an important tax provision. Temporary extensions are poor tax policy. The ultimate loser in this game is not the Congress or even the companies that engage in research, but each American. That is because every one of us is the direct beneficiary of the research investments made by the businesses of America. We benefit from the higher economic growth and increased productivity and the higher degree of global competitiveness that increased research brings. The research credit has been in the Internal Revenue Code for more than 20 years in one form or another. It has expired and been extended 10 times, Mr. President. Those extensions have been as short as 6 months and as long as 5 years. There have even been periods when the credit was allowed to expire and then retroactively reestablish. On one occasion, the credit expired and was reenacted prospectively, leaving a gap period where the credit was not available. The one thing the credit has never been is permanent. That is a shame. This is significant because, as effective as the credit has been in providing a strong incentive to companies to increase research activities, it has been inherently limited in its effectiveness because business leaders have never been able to count on the credit being there on a long-term basis, and therefore their long-term planning can't be entered into. Anyone who has been in business more than 10 minutes knows that planning and budgeting--unlike what we do in Congress--is a multiyear process. Anyone who has been involved in research knows that scientific enterprise does not fit neatly into calendar or fiscal years. Our history of dealing with the research credit--that is, allowing it to run to the brink of expiration and bringing it back after it is dead with retroactive extensions--results in not only very poor tax policy but is also very detrimental--and I would say highly so--to our research- intensive business entities and indeed the whole country. It is time to get serious about our commitment to a tax credit that is widely viewed by economists and business leaders as a very effective provision in creating economic growth and keeping this country on the leading edge of high technology in the world. A 1998 study by Coopers and Lybrand dramatically illustrated the significant economic benefits provided by the research credit. According to the study, making the credit permanent would stimulate substantial amounts of additional R&D in the United States, increase national productivity and economic growth almost immediately, and provide U.S. workers with higher wages. The vast majority of the Members of this body are on record in support of the permanent research credit. As I mentioned, only 18 months ago, 98 Senators voted in favor of permanence. But, while practically everyone says they support a permanent research credit, it has become too easy for Congress to fall into its two-decade-long practice of merely extending the credit for a year or two, or even five years, and then not worrying about it until it is time to extend it again. These short-term extensions have occurred ten times since 1981. Ten short-term extensions for a tax credit that most Members of this body strongly support. I am not sure we realize how the lack of permanence of the credit damages its effectiveness. Research and development projects cannot be turned on and off like a light switch. They typically take a number of years and may even last longer than a decade. As our business leaders plan these projects, they need to look years ahead in making the projections and estimating the potential return on their investment. Because the research credit is not permanent, and its extension is not assured, the availability of the credit over the life of these projects is uncertain and is thus often not included in the numbers. As a result, the projected return on the investment is lower and some promising research projects are simply not funded. With a permanent credit, these business planners would take the benefits of the credit into account, knowing they would be there for all years in which the reason is to be performed. The result would be a lower projected cost, leading to more research projects being funded, which in turn would lead to more benefits to the economy, to our productivity, and to each consumer. In fact, making the credit permanent would start these benefits now and actually give an immediate boost to the amount of research performed, even before the current credit expires in 2004. There is little doubt that a significant amount of the incentive effect of the research credit has been lost over the past 20 years because of the constant uncertainty about its continuing availability. This uncertainty has undermined the very purpose of the credit. For the government and the American people to maximize the return on their investment in U.S.-based research and development, this credit must be made permanent. And now is the time to do so. I believe a permanent research credit is one of the most important elements of our tax code because it is so tied in with the issues of economic growth and our future prosperity. According to Chairman Greenspan, the Nation's high productivity growth, which played an instrumental role in our economic growth during the second half of the 1990s, would likely not have been possible without the innovations of recent decades, especially those in information technologies. The research credit is a key factor in keeping these innovations coming. But a temporary credit is inherently limited in its ability to do this. As I mentioned earlier, I am afraid to many of us are stuck in a mindset that says that since the research credit can just be taken care of later this year in a tax extenders package, or when it gets closer to its 2004 expiration date, why bother about it now? I want to emphasize that another temporary extension is not the issue here. We can and probably will always extend the credit when the time for its expiration comes. It will likely be on the less effective basis we have always done it, perhaps only for a few months, or it may be on a retroactive basis, and there may be a gap created, but we will probably keep extending it. The issue is whether or not we should magnify the power of this credit by making it permanent. This amendment is about long-term growth; it is about fostering innovation and keeping the innovation pipeline filled; and it is about sustaining the productivity gains that have brought us where we are today and that can help us stay prosperous in the future as we deal with the entitlement challenges ahead. In conclusion, if we decide not to make the research credit permanent, are we not limiting the potential growth of our economy? How can we expect the American economy to hold the lead in the global economic race if we allow other countries, some of which provide huge government direct subsidies, to offer stronger incentives than we do? Making the credit permanent will keep American business ahead of the pack. It will speed economic growth. Innovations resulting from American research and development will continue to improve the standard of living for every person in the U.S. and worldwide. I have been making this case year after year, and I am so pleased to have the leadership of our distinguished Senator from Colorado in helping us to pass it on the economic stimulus bill. I do believe that almost everybody in the Senate should vote for this amendment. This makes sense. It creates jobs and gives businesses an opportunity to plan ahead. It literally keeps us at the cutting edge of technology and helps us to really be what we should be, in a time such as this when we want to stimulate the economy. I don't know of many amendments that would do as much as this particular amendment of the Senator from Colorado and myself. I praise him and thank him for his dedication in bringing this issue forward. I urge my colleagues to support this amendment. Mr. President, I yield the floor and suggest the absence of a quorum. I withhold.