Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the bill be read the third time and passed, the motion to reconsider be laid upon the table, and any statements relating to the bill be printed in the Record.

Mr. HATCH. Mr. President, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of S. 3181 and the Senate then proceed to its immediate consideration.

Mr. HATCH

Mr. HATCH. Mr. President, I was pleased that last Thursday the Senate unanimously passed S. 1854, the ``21st Century Acquisition Reform and Improvements Act of 2000.'' I originally introduced the bill last year with Senators DeWine and Kohl, and we are hopeful that it will be enacted into law this year. I want to express my thanks to Senator Leahy, the Ranking Member of the Judiciary Committee, and to Senators DeWine and Kohl, the Chairman and Ranking Member of the Antitrust Subcommittee, respectively, for their hard work and cooperation in developing and passing the bipartisan proposal that the Senate approved. The reforms that will be put in place upon enactment of this legislation are long overdue. Businesses, both small and large, as well as the antitrust enforcement agencies, have much to gain by its enactment. As my colleagues know, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 requires companies contemplating a merger or acquisition to file a pre-merger notification with the Antitrust Division or the Federal Trade Commission if the size of the companies and the size of the proposed transaction are greater than certain monetary thresholds. These monetary thresholds, however, are seriously outdated. They have not been changed--even for inflation--since the legislation was enacted more than two decades ago. Because these monetary thresholds are obsolete, businesses today often are required to notify the Antitrust Division and the FTC of proposed transactions that simply do not raise competitive issues. As a result, the agencies are required to expend valuable resources performing needless reviews of transactions that were never intended to be reviewed. In short, current law senselessly imposes a costly regulatory and financial burden upon companies, particularly small businesses, and needlessly drains the resources of the agencies. Because of the unnecessarily low monetary thresholds, current law fails to reflect the true economic impact of mergers and acquisitions in today's economy. In addition, after a pre-merger notification is filed, the Hart- Scott-Rodino Act imposes a 30-day waiting period, during which the proposed transaction may not close and the Antitrust Division or the FTC conducts an antitrust investigation. Prior to the expiration of this waiting period, the agency investigating the transaction may make a ``second request''--a demand for additional information or documentary material that is relevant to the proposed transaction. Unfortunately, many second requests require the production of an enormous volume of materials, many of which are unnecessary for even the most comprehensive merger review. Complying with such second requests has become extraordinarily burdensome, often costing companies in excess of $1 million. Second requests also extend the waiting period for an additional 20 days, a period of time that does not begin to run until the agencies have determined that the transacting companies have ``substantially complied'' with the second request. This procedure results in many lawful transactions being unnecessarily delayed for extended periods of time, causing an enormous strain on the businesses, their employees, and their shareholders. I am pleased that this legislation will rectify many of the problems with the 1976 Hart-Scott-Rodino Act. First, the legislation increases the size-of-transaction threshold from $15 million to $50 million, effectively exempting mergers and acquisitions that would not pose any competitive concerns from the Act's notification requirement. Such mergers make up over half of all transactions reported in 1999. Therefore, this legislation provides significant regulatory and financial relief for all businesses, particularly small and medium- sized ones. In addition, the legislation indexes the threshold for inflation, so that the problem of an expanding economy outgrowing the statute's monetary threshold will not recur. In addition to providing regulatory and financial relief for companies, another purpose of this legislation is to ensure that the Antitrust Division and the FTC efficiently allocate their finite resources to those transactions that truly warrant antitrust scrutiny. To that end, one of its main objectives is to achieve a more effective and efficient merger review process by eliminating unnecessary burden, costly duplication and undue delay. In order to accomplish this objective, this legislation directs the Assistant Attorney General and the FTC to conduct an internal review and implement reforms of the merger review process, including the designation of a senior official for expedited review of appeals regarding the scope of and compliance with second requests. Fortunately, these reforms will be implemented quickly because, under this legislation, the Assistant Attorney General and the FTC will have 120 days to issue the guidelines and make the necessary changes to their regulations and policy documents to implement the reforms, and they must report back to Congress within 180 days. This legislation sets forth reforms to the Hart-Scott-Rodino Act that are long overdue. It provides significant regulatory and financial relief for businesses, while ensuring that transactions that truly deserve antitrust scrutiny will continue to undergo review. Again, I thank my colleagues who joined me in supporting passage of this legislation. In the waning hours of this Congressional Session, it is my intention to see this non-controversial consensus legislation enacted into law this year, and I will seek its attachment to one of the remaining ``must-pass'' vehicles. Finally, I would like to recognize the hard work and efforts of several staff members of the Judiciary Committee who were instrumental in the successful passage of this legislation. On my staff, I particularly would like to thank the Committee's Chief Counsel and Staff Director, Manus Cooney, the lead counsels who worked on this measure, Makan Delrahim, Rene Augustine, and Kyle Sampson, and legal fellow Thadd Prisco. On Senator Leahy's staff, I would like to recognize the professional skills and input of the Minority Chief Counsel, Bruce Cohen, and the Minority General Counsel, Beryl Howell. On the Antitrust Subcommittee, I would like to thank Peter Levitas and Mark Grundvig, who are Senator DeWine's able counsels, as well as Jon Leibowitz and Seth Bloom, counsels to Senator Kohl, for their tireless efforts and input. Without the assistance and hard work of these loyal public servants, the important reforms in this legislation would not have been possible. Thank you.

Mr. HATCH

Mr. HATCH. I move to reconsider the vote, and I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. HATCH

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

Mr. HATCH

Mr. HATCH. I thank the Senator from Wisconsin for his comments. I appreciate the Senator's comments and plan to work with him next year to examine the experiences of others whose liberties may not have been respected by our government during World War II.

Mr. HATCH

Mr. HATCH. Mr. President, this amendment in the nature of a substitute is the product of negotiations between myself and Senator Leahy, the ranking member of the Judiciary Committee, and Senators Grassley and Torricelli, the chairman and ranking member of the Administrative Oversight and the Courts Subcommittee. It is my hope that the Senate will act speedily to pass S. 2915, with this amendment, and return it to the House for that body's approval. As chairman of the Judiciary Committee, I have the responsibility to review the operation of federal court process and procedures. In doing so, I have strived to ensure that our federal judicial system is administered in an efficient and cost-effective manner, while maintaining a high level of quality in the administration of justice. The substitute amendment I am offering today includes numerous changes to our laws that the Judicial Conference, the governing body of the federal courts, believes are necessary to improve the functions of our courts. They are changes that I believe will help increase the efficiency of the federal judiciary, while ensuring that justice is served. The amendment contains provisions that reduce unnecessary expenses and improve the efficiency of the judicial system. Specifically, it extends civil and criminal contempt authority to magistrate judges so that they can perform more effectively their existing statutory duties for the district court. It also authorizes magistrate judges (1) to try misdemeanor cases involving juveniles (cases that currently are tried in district court) and (2) to try all petty offense cases without first having to obtain the consent of the defendant. Making these changes will reduce caseload burdens on district judges, thereby permitting district judges more time to handle more serious crimes and more serious offenders. The amendment also contains provisions that decrease the amount of time judges must devote to non-judicial matters. For example, one such provision raises the maximum compensation level paid to federal or community defenders representing defendants appearing before magistrate or district judges before they must seek a waiver for payment in excess of the prescribed maximum. Currently, payment in excess of the maximum requires the approval of both the judge who presided over the case and the chief judge of the court. Because the last increase in the maximum compensation level was enacted 14 years ago, federal and community defenders are forced to seek payment waivers in a significant number of cases. As a consequence, judges are forced to spend more time acting as an administrator (attending to ministerial matters) and less time acting as a judge (attending to their civil and criminal dockets). The amendment remedies this problem. In addition, the amendment contains a provision designed to address the growing trend of Criminal Justice Act (``CJA'') panel attorneys being subject to unfounded suits by the defendants they formerly represented. Under current law, CJA panel attorneys must pay their own legal expenses in defending malpractice suits brought by former clients. The result is a chilling effect on the willingness of attorneys to participate as CJA panel attorneys--a chilling effect that serves only to make the obtaining of adequate representation for defendants more difficult. Under current law, the Director of the Administrative Office of the United States Courts is authorized to provide representation for and indemnity to federal and community defender organizations for malpractice claims that arise as a result or furnishing representational services. No such provision, however, is made for CJA panel attorneys. The amendment rectifies this situation and provides CJA panel attorneys with the same protection afforded other federal defenders. Importantly, the amendment contains provisions designed to assist handicapped employees working for the federal judiciary. These provisions bring the federal judiciary into alignment with the Executive Branch and other government bodies. The amendment also contains a provision extending for four years the authority of the U.S. Supreme Court Police to provide security beyond the Supreme Court building and grounds for Justices, Court employees, and official visitors. Under current law, this authority will terminate automatically on December 29, 2000. Because security concerns of the Justices and employees of the Supreme Court have not diminished, it is essential that the off-grounds authority of the Supreme Court Police be continued without interruption. I have touched on only a few of the provisions contained in this amendment. This amendment sets forth a number of other provisions designed to improve judicial financial and personnel administration, judicial process, and other court-related matters. Each of these provisions is intended to enhance the operation of the federal judiciary. It is my hope that my colleagues in the Senate will agree to this amendment quickly, that the House will do likewise, and that this legislation will be signed by the President in short order.

Mr. HATCH

Mr. HATCH. As this correspondence indicates, I am particularly concerned by the so-called non-discrimination clause that suddenly materialized, almost out of the vapors, and was added to the conference report at the last moment. I would also note for the record that, prior to learning that such language was under development, I contacted Chairman Cochran and the majority leadership with a request that a rule of construction be added to these ill-advised importation provisions to the effect that the language be neutral with respect to intellectual property rights. Imagine my surprise and disappointment to find that not only was my modest proposal, which was consistent with every version of the bill that passed both the House and the Senate up to that point, not adopted, but, instead, all too discriminatory ``non-discrimination clause'' incorporated in its place. This provision states: ``No manufacturer of covered products may enter into a contract or agreement that includes a provision to prevent the sale or distribution of covered products imported pursuant to subsection (a).'' Make no mistake that this clause appears to take direct aim on some of the most traditional of American commercial rights such as freedom to contract and the freedom to license patent rights. In the United States, manufacturers have great leeway in selling their goods. For example, in its 1919 decision, United States v. Colgate & Co., the Supreme Court noted it is a ``long recognized right of [a] trader or manufacturer to exercise his own independent discretion as to parties with whom he will deal.'' Moreover, this right is particularly strong when the seller holds patent rights which are derived directly from Article I of the Constitution. As the language is scrutinized, I hear more and more questions being raised about the potential conflict of these provisions with current law. Mr. President, in some respects, this non-discrimination clause is a major assault on intellectual property rights. It hardly sends a strong signal to our knowledge-based industries that form the backbone of the new high-technology economy. I serve on the Finance Committee where we had jurisdiction over trade matters. While at the point I have reached no final answers or conclusions about how the non-discrimination clause comports with the TRIPS provisions, I can tell you that I have a lot of questions. And I can tell you that we would be better off if, before we adopt this language, we took the time to work through some of the tough questions that this highly controversial clause raises with, for example, Article 28 of TRIPS. Neither the Finance Committee nor the Ways and Means Committee will have a meaningful opportunity to examine the trade implication of this language. I can only hope that this language does not result in the importation of sub-standard and unsafe drugs along with a back door system of price controls. Wisely, this body has always resisted direct government price controls on high-technology products like pharmaceuticals. We stand today as the world's leader in pharmaceutical innovation. Let's hope that this bill does not undermine this achievement. Let me emphasize, Mr. President, that we need to work together to make drugs more affordable for the American public--all of those in Congress with expertise in the policy areas that contribute to addressing this issue should be collaborating on a solution to high drug prices. This is not a simple matter, and a solution that looks simple and obvious could easily prove disastrous to both consumers and the research enterprise. We must tackle this issue in a manner that doesn't threaten public safety, undermine the incentives for developing new intellectual property, and otherwise adversely affects U.S. trade interests. Frankly, I am concerned that these reimportation provisions, however well-intentioned, will not be able to met these tests. I will support this conference report, even though I have very serious concerns about the provisions on pharmaceutical reimportation. I hope to work with my colleagues on all the relevant committees in the House and Senate on these many issues concerning pharmaceuticals and their importation into our country. Exhibit 1 U.S. Senate, Committee on the Judiciary, Washington, DC, October 4, 2000. Hon. Trent Lott, Majority Leader of the Senate, Washington, DC. Hon. Thad Cochran, Chairman, Subcommittee on Agriculture, Committee on Appropriations, Washington, DC. Hon. Dennis Hastert, Speaker of the House of Representatives, Washington, DC. Hon. Joe Skeen, Chairman, Subcommittee on Agriculture, Committee on Appropriations, Washington, DC. Dear Trent, Denny, Thad, and Joe: This is to register my strong objection to the so-called ``non-discrimination'' amendment that Representative Henry Waxman and others are trying to insert into the pharmaceutical importation provisions in the Agriculture Appropriations Conference Report. This language would affect both intellectual property and contract rights and raises constitutional questions. As Chairman of the Senate Judiciary Committee, I believe it is imperative that you reject these ill-advised, eleventh hour provisions that relate to critical intellectual property rights that have not been considered by either the House or the Senate Judiciary Committees. Although styled as a ``non-discrimination'' provision, this language is a thinly disguised attack on intellectual property protection in the United States that conflicts with longstanding U.S. policy, would set a dangerous precedent for all U.S. businesses, and would undermine bipartisan U.S. trade and intellectual property negotiating objectives abroad. Proponents of this language would deny pharmaceutical manufacturers their freedom in private contracting, and appears to compel them to sell unlimited quantities of their prescription medicines to foreign buyers, including unknown foreign entities lacking any interest in the safety and health of American patients who rely on the safety and effectiveness of prescription medicines. This proposal has not been the subject of a single hearing, let alone a committee mark-up, and is unquestionably within the jurisdiction of the House or Senate Judiciary Committees, neither of which has been consulted on this controversial measure. I urge you to reject it. My responsibilities as Chairman of the Senate Judiciary Committee require me to oppose this sneak attack on intellectual property protection and U.S. leadership in innovation benefiting consumers. My responsibilities to my Utah constituents and the American people generally impel me further to object to the adoption of the prescription drug import proposal on safety grounds. I am greatly disturbed to learn that Conferees are apparently considering lowering the traditional gold-standard of ``safety and efficacy'' to a new, untested, and disturbingly ambiguous standard of ``reasonable assurance'' of safety and efficacy. The Senate passed the Cochran-Kohl amendment 96-0 precisely to seek to ensure that risks to American patients are not increased through re-importation of prescription medicines. In direct contradiction to these efforts, the ``non- discrimination'' measure clearly and unacceptably increases such risks. This measure would place domestic medicine supplies in jeopardy by forcing our manufacturers to sell unlimited quantities abroad. It also would prevent them from exercising sound business judgment about to whom to sell, forcing them to sell drug products to anyone--even unscrupulous shady dealers. In conjunction with a price control system of a foreign nation, this ``non- discrimination'' regime is tantamount to a compulsory licensing system that can only undermine the incentives required for the private sector to make the necessary substantial investment to invent new medicines. In order to protect the safety and health of American patients, advance our Nation's trade policy, and promote the development of the next generation of medicines, this proposal must be rejected. Sincerely, Orrin G. Hatch, Chairman.

Mr. HATCH. Mr. President, I appreciate the many long hours of work by my colleagues on the Agriculture Appropriations Subcommittee to develop this legislation. I admire the efforts of my friend and colleague, Senator Cochran. I believe we all owe him our gratitude for his leadership on behalf of our nation's agriculture industry, including its small family farmers and ranchers. I am well aware that putting these bills together is never easy and seems recently to be an almost thankless task. There is much in this bill worthy of enthusiastic support. I am particularly pleased that the conferees have included a number of provisions that will benefit farmers and ranchers in the West. For example, the entire West will benefit from pasture and forage research that is funded by this bill. The information we obtain from this Utah State University program not only makes our livestock producers more efficient, but also contributes significantly to the health of our pasture lands in the West. Another important contribution to research in the conference report is the funding for Utah State's Poisonous Plant Laboratory. The effort to fight noxious weeds in the U.S. will receive a significant boost as this important facility is finally upgraded. Some people chuckle when they see a program to fight noxious weeds. But, I can assure my colleagues that this is no joke. If you have ever seen a crop overrun with these weeds, you would know that we need to continue our research efforts to come up with safe and effective means to fight them. The environment also benefits by this bill's continued funding for the Colorado River Basin Salinity Control Program. This is particularly important to farmers within the vast Colorado River Basin, who must shoulder much of the burden for minimizing agricultural runoff into the Colorado River. The Salinity Control program is good for farmers, good for the environment, and good for the fish species in the river. Also important to Utah agriculture, Mr. President, is the funding this bill provides to compensate farmers for losses due to the infestation of grasshoppers and Mormon crickets. For the last couple of years, farmers in Utah and other Western states have faced one of the largest infestations on record. I am very pleased that Congress has seen fit to provide these farmers with relief. You wouldn't think that these little insects could do so much damage, but they do. This funding is important to those in my state who have suffered terrible losses. Finally, Mr. President, I have often reminded my colleagues that Utah is the second driest state in the Union. Utah's farmers understand better than most that water equals life. For that reason, I am pleased that this bill will help to protect the Long Park Reservoir by providing technical and financial assistance to shoring up this important source of water. Mr. President, these are just a few of the programs funded by the conference report that will benefit Utah's farmers. I am also proud to say that I worked with Senator Cochran and Senator Durbin to increase the amount of funds available in FDA's Office of Generic Drugs. When generic drug applications languish at FDA, it is the public that loses, and these additional resources will be a needed shot in the arm. They will enable the FDA to process these applications more quickly and get generic drugs to consumers faster. This is a momentous piece of legislation, which is why I think it is unfortunate that it is being made a vehicle for an unrelated proposal that is poor policy and that would undoubtedly have been the subject of considerable debate should it have come to the floor as a free-standing bill. Mr. President, I must register my severe reservations about the drug importation provisions that have been inserted in the Agriculture appropriations conference report. I commend Senator Cochran for his attempts to improve some of the more egregious features of the controversial pharmaceutical importation provisions that have been slipped into this appropriations bill. But, these mitigation measures do not go far enough to correct what I consider the proposal's principal flaw. My first and foremost concern about this proposal is patient safety. I have been around here long enough to gauge momentum and count the votes. I know that the reimportation provisions have been wedged in a must-pass, year-end appropriations bill--one that forces me to choose between supporting a bill that does much to help Utahans and opposing a bill that contains one bad, albeit popular, idea. But before we adopt this reimportation measure, which has not been the subject of a committee mark-up in either the Senate or House, let's at least stop for a moment and think about the type of risk we are placing upon the American people. Although I do not see eye-to-eye with Congressman John Dingell on every, maybe even most, issues, I always respect his views. And, I recognize his many impressive efforts when he chaired the Oversight and Investigations Subcommittee of the House Commerce Committee. In fact, it was the Dingell Oversight and Investigation Subcommittee's investigation into the foreign drug market that led to the enactment of the 1988 Prescription Drug Marketing Act. I was proud to help shepherd this legislation through the Senate. The good news is that the PDMA law helps prevent pharmaceuticals that are mislabeled, misbranded, improperly stored or shipped, beyond their shelf life, or even bald counterfeits from entering the United States from abroad. The bad news is that the legislation we are being asked to adopt today will unravel essential elements of the PDMA, which currently controls importation of pharmaceutical products into the United States. As the committee report accompanying the PDMA stated: (R)imported pharmaceuticals threaten the public health in two ways. First, foreign counterfeits, falsely described as reimported U.S. produced drugs, have entered the distribution system. Second, proper storage and handling of legitimate pharmaceuticals cannot be guaranteed by the U.S. law once the drugs have left the boundaries of the United States. Congressman Dingell has also commented on the pending legislation. I am sad to say that this assessment may turn out to be prophetic. As my Democratic friend, Representative Dingell, succinctly summarized the situation: ``Make no mistake. This reckless legislation never went through the committees with expertise or experience in these matters. It is going to lead to needless injuries and death.'' As chairman of the Judiciary Committee which has jurisdiction over counterfeiting, I am concerned that our members have not had an opportunity to make a careful study, in collaboration with the Drug Enforcement Administration, of the potential for this language to increase the flow of counterfeit drugs. The World Health Organization has issued several reports that have detailed the international scope of the counterfeit pharmaceuticals problem. Some might question how Congress could enact legislation that could endanger the health and safety of the American people. As I have argued previously on the floor of the Senate, even the best of intentions in trying to lower drug prices surely can't be adequate justification for sacrificing patient safety. I recommend a critical reading of the transcript the October 3, 2000, House Commerce Committee Oversight and Investigations Subcommittee hearing on the important issue. I think a fair appraisal of this transcript warrants a conclusion that FDA already has its hands full in the policing the relatively limited area of PDMA-permissible imports. Based on what we learned at the October 3 hearing, if Congress adopts, and the President signs into law, these new, greatly liberalized reimportation rules, it is difficult to see how the Secretary of Health and Human Services or the Commissioner of Food and Drugs will be able to handle the tremendous responsibilities imposed upon them in this provision. One of the points that came out of the hearing during the testimony of the Commissioner of Food and Drugs, Dr. Jane Henney, is that there are at least 242 manufacturers spread across some 36 countries that appeared to have exported drug products to the United States but that did not have a current FDA inspection. This is like playing Russian roulette with the public health. At this same hearing, the Commissioner of Customs, Mr. Raymond Kelly, testified that there are some 301 ports of entry that must be watched by the Customs Service. And keep in mind that this is the situation under the current statutory framework where it is difficult to import drugs into the U.S. Imagine the catastrophic possibilities if we adopt a law that loosens the reigns on importation of drug products into the United States. The House hearing brought out the fact that it is not only manufacturing plants we need to worry about, but also repackaging facilities and bulk drug facilities as well as the various warehousers and transporters of drug products. We must be concerned about how we can guarantee strict adherence with the general good manufacturing practices in overseas facilities that we have come to expect in the United States. These guidelines provide assurance as to the purity of pharmaceutical products. Basically the bill says, in effect, don't worry, the FDA will issue regulations that will solve all these problems. Maybe so. But if it was so easy for FDA to regulate these problems right out of existence then why are 10 former FDA Commissioners against this bill? I fear that in practice the drafting of these regulations will prove to be an extremely time-consuming and complex endeavor. And even if the regulations are promptly drafted, what assurance and expectation do we have that all of these foreign establishments will be respectful of the regulations of the United States Food and Drug Administration? If you don't believe me, get a copy of the transcript of the October 3 hearing and read about what House Commerce Committee and FDA staff found in a recent trip to Chinese and Indian drug manufacturing facilities. Not only did this investigation help uncover that some 46 Chinese firms and 11 Indian firms were exporting apparently misbranded drugs to the United States, there also appeared to be wholesale theft of U.S. intellectual property related to drug products. Yet instead of tightening the controls we have in place, we are unwisely, in the name of attempting to cut high drug costs, loosening them. Let me say it once again, it is no wonder why ten former FDA Commissioners have come out against these drug importation measures. In enacting this reimportation measure, we will have put in place a ticking time bomb on the public health front as well as creating a regulatory climate that can only encourage an assault on American intellectual property. While the public health shortcomings of the bill are chief among my concerns, as chairman of the Senate Judiciary Committee, I do want to raise some troubling aspects of the reimportation provisions as they relate to intellectual property. In my view, it would have been preferable for the Judiciary Committees of both the House and Senate to have had an opportunity to carefully study the rapidly evolving language that was inserted into this appropriations bill. I share the legitimate concerns of all Members of Congress about the difficulties the many Americans, particularly our senior citizens, have in gaining access to affordable drugs. In fact, one of my chief concerns about the reimportation measure-- public safety, intellectual property, and trade policy concerns aside-- is whether consumers will get any substantial benefit when a new phalanx of middlemen get their piece of the action for bringing these drugs into the United States. I am not convinced that consumers will get much in the way of savings. And, what little benefit they get will come at what cost? I believe that the industry must give the American public and the Congress a better explanation to account for the discrepancies in some drug prices in the United States and in other countries. And, I call upon the industry to ensure that Americans are paying fair prices for pharmaceuticals and that citizens in other nations are also paying their fair share and not merely free riding on the substantial U.S. investment in biomedical research. We must be especially wary of price control regimes in other countries that may set prices at levels inadequate to reflect their citizens' fair share of the R&D costs. We must recognize, however, that what is a fair and affordable price in the United States may not be affordable in many developing nations. The differences in GDP of the developed and developing world have many dimensions, mostly negative. We must be mindful of the important fact that virtually every nation in the world has made a commitment, helped along by the leadership of the U.S., to attempt to create that rising tide that lifts all boats by adopting the GATT Treaty, which specifies the rules of international trade. The GATT TRIPS provisions consist of critical new legal protections for the intellectual property. It is intellectual property that undergirds the creation of so many new products, including pharmaceuticals. In our understandable short-term desire to help the developing world fight back against such infectious disease menaces as HIV, TB, and malaria, we must avoid acting, however unintentionally, to undermine the long-term interest in protecting the intellectual property rights of American inventors. That goes for our goals to develop new drug therapies benefiting Americans as well. For our own national interest, as well as the interests of our trading partners, particularly developing nations, we must use our influence to build respect for and protect the inventive energies citizens worldwide. I do not believe the reimportation provisions in this conference report advance the cause of intellectual property protection and, in fact, may have an unintended but unmistakable effect of retarding future drug development. Mr. President, I ask unanimous consent to include in the Record at this point two letters that I wrote, one to Senator Lott and Speaker Hastert and one to Senators Cochran and Kohl, to object to both the process and substance of these provisions. In addition, House Judiciary Chairman Henry Hyde expressed similar concerns. I ask consent that his letter also be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to honor a fellow Utahn, William F.X. McConnell of Salt Lake City, a remarkable man with a remarkable story. I am not sure that in this retelling I can do justice to his sacrifices or of those who fought along side of him during World War II's campaign for the Rhine River. But, I think my colleagues would be interested in this history and would like to join me in paying tribute to the bravery of these men. In December 1944, Bill McConnell arrived in France and was assigned to the 168th Engineer Combat Battalion. Shortly thereafter, Bill McConnell and his battalion fought in the terrible Battle of the Bulge. His battalion paved the way for an allied victory by removing road blocks and tank traps, building bridges under fire, and other perilous assignments. But, these were not the most harrowing experiences to which McConnell was assigned. The worst was yet to come. McConnell and his battalion were called to cross the Rhine River, an assault as dangerous as it was important. He was told that this would be a simple assault, with plenty of support provided. At 2:00 a.m. on March 26, 1945, he boarded a row boat to cross the Rhine River into Germany. During the crossing, a bank of lights on the German side of the river were suddenly turned on, spotlighting the American soldiers. German tracer bullets fell like deadly rain upon them. The promised support from the American side never came. While rowing, McConnell was hit in the wrist. Bleeding profusely, he continued to row. Shortly thereafter, several tracer bullets ripped through his thigh and knee. Continuing to row, he was hit a third time by an unidentified object on the side of his face and head. This blow knocked him into the water where he was miraculously saved by an assault boat returning from the German shore. Still without cover, the occupants of the boat were forced to debark and trudge through an active sewer line in order to escape the German gunfire. For this act of bravery, Bill McConnell was awarded a well-deserved Purple Heart. In addition, he has been honored with the American Campaign Medal, Good Conduct Medal, Distinguished Unit Citation, European Theater of Operations with four battle stars, and the Belgium Croix de Guerre (War Cross). These medals stand as a symbol of his dedication. But, Bill McConnell's battle since the war has been to keep this military history alive. While the battle at Remagen and other locations during the war to defeat the Third Reich have been well-chronicled in books and on film, engagements such as the Rhine crossing are still unknown to many Americans. Since the war, McConnell has worked tirelessly in support of veterans organizations. Shortly after returning from the war he worked as a national service officer with the Disabled American Veterans. For 25 years, he served in the Veterans Administration Adjudication Division, in positions including senior adjudicator, chairman of the rating board, and adjudication officer. For more than 40 years, he has been the American Legion member in charge of placing U.S. flags on graves for Memorial Day. He has served as past state commander in Utah of the Disabled American Veterans. He is the founder of the Salt Lake City chapter and national service officer of the Military Order of the Purple Heart, where he volunteers to help veterans with their disability claims. Clearly, he is one who has helped many. There are thousands of World War II veterans just like Bill McConnell, who fought courageously for freedom. But, William F.X. McConnell is one who happens to live in my home state. He exemplifies the dedication of all American soldiers, sailors, airmen, and marines-- past, present, and future--who have always been on watch to defend our country and its vital interests. Today, I want to thank Bill McConnell for his service in uniform and for his service to our nation's veterans. This stand as his own monument. I am pleased to call the Senate's attention to his bravery in battle and to his many contributions to veterans.

Mr. HATCH

Mr. HATCH. Mr. President, with the imminent passage of the work made for hire legislation today, I believe a few comments are in order. Last year a technical amendment was included in the Intellectual Property and Communications Omnibus Reform Act of 1999 which added sound recordings to the list of works eligible for, or considered as having, the status of works made for hire under the Copyright Act. Works made within the scope of employment or large collaborative works such as motion pictures are most often accorded the status of works made for hire, and the copyright for those works resides in the employer or the corporation doing the hiring, such as the movie studio. The status of sound recordings had been in some doubt because sound recordings did not obtain the status of copyrighted works until relatively recently, and, when added to the list of copyrightable works was not added to the list of works made for hire. When the technical amendment was raised for consideration in the conference, our research indicated that the practice of the Copyright Office has uniformly been to register sound recordings as works made for hire. The technical amendment therefore seemed a reasonable codification of the ongoing practice at the Copyright Office, and was adopted. Soon thereafter, however, it became clear that while the technical amendment aligned the code with long-time Copyright Office practice, it was not uncontroversial. Indeed many recording artists had believed that the work-for-hire clauses of their contracts were unenforceable because contrary to the copyright code: i.e., sound recordings are not listed as works made for hire. They view their contracts as operating as assignments or transfers of copyright. This distinction is important because under work-for-hire, the copyright is owned by the record company for the life of the copyright and the artists' rights are extinguished; under a transfer or assignment, the artist may recapture his or her copyright after 35 years and then either renegotiate more favorable terms with the same company or sell the remaining copyright to another label on more favorable terms. The basic premise of this recapture is that the initial assignment of copyright might not fully reward the unproven artist who is an unknown quantity in a risky business. Once the artist's commercial value is better proven an opportunity is given the artist to reap the rewards of his or her creations that have stood the test of time. That the assumptions of the artists and labels about the status of these works have been diametrically opposed might not have appeared until 35 years after the 1978 effective act of the current Copyright Act, but for this technical amendment. What ought the status of sound recordings be then? Sound recordings can be something of a hybrid art form lying on a continuum between the individual author writing a song or book and the motion picture where possibly hundreds of employees collaborate on the final work. Sound recordings can be more like the former or the latter, depending on the circumstances. Because the facts can vary so widely--some albums are primarily the product of the producer, some of one artist, some of a group, many have hired musicians or technicians who contribute but do so as part of their normal employment, some recordings are compilations of smaller recordings--it is not clear what general rule would be either most fair to all concerned or would most encourage the continued creativity of recording artists. Since it may take some time, and will require the input of all the affected parties, it seems reasonable at this time to undo last years' technical amendment without prejudice to either side in case litigation should arise later, while we explore whether a more comprehensive rule can be crafted. That is why we have made this change today, containing in the legislative language the congressional intent that neither enactment prejudice any future litigation. It is my hope that the dialogue on this issue is beginning, rather then ending, with this legislation. I think it is important to avoid costly litigation if possible. And I believe it of paramount importance that artists are fairly compensated for the work they do. Without the creativity of the artist, the record companies would have nothing to market, and the audience would have nothing to enjoy. For the sake of the future of music, I hope that using new technologies, artists and audience can begin having a closer relationship, where artists are encourage to stretch themselves creatively and fans are enabled to enjoy artists' work more fully. I think a focused conversation on the relative roles of artists and label, as well as the artist's role in controlling their work in traditional and new media, can hasten that day. If the legislative roundabout on the work-for-hire issue concluded today can serve as such a beginning, then it has served a useful purpose. I commend this legislation to my colleagues. At this time I also wish to thank my colleagues in the House and Senate who have supported this legislation, and the recording artists and labels who have worked together on this legislation and who will begin the task of exploring what more comprehensive settlement we might reach with regard to the status of sound recordings under the copyright law, which will allow them to continue their creative works.

Mr. HATCH

Mr. HATCH. Will the Senator yield?

Mr. HATCH. I would note that the Reagan and Bush nominations that Senate Democrats allowed to expire Congresses included the nominations of minorities and women, such as Lillian BeVier, Frederic Moreno, and Judy Hope. I do not have any personal objection to the judicial nominees who my Democratic colleagues have spoken about over the last few weeks. I am sure that they are all fine people. Similarly, I do not think that my Democratic colleagues had any personal objections to the 53 judicial nominees whose nominations expired in 1992, a the end of the Bush presidency. Many of the Republican nominees whose confirmations were blocked by the Democrats have gone on to great careers both in public service and the private sector. Senator Jeff Sessions, Governor Frank Keating, and Washington attorney John Roberts are just a few examples that come to mind. I know that it is small comfort to the individuals whose nominations are pending, but the fact of the matter is that inevitably some nominations will expire when the Congress adjourns. I happens every two years. I personally believe that Senate Republicans should get some credit for keeping the number of vacancies that will die at the end of this Congress relatively low. As things now stand, 13 fewer nominations will expire at the end this year than expired at the end of the Bush Presidency. Madam President, I rise today to express my pride and gratitude that the Violence Against Women Act of 2000 will pass the Senate today and soon become law. This important legislation provides tools that will help women in Utah and around the country who are victims of domestic violence break away from dangerous and destructive relationships and begin living their lives absent of fear. I commend all of my fellow Senators and colleagues in the House of Representatives with whom I worked to ensure the Violence Against Women Act is reauthorized through the year 2005. The Republican and Democratic Senators and Representatives who worked to make sure that this legislation passed understood and understand that violence knows no boundaries and it can affect the lives of everyone. This has been a truly bipartisan effort of which everyone can be extremely proud. Specifically, I thank Senator Joseph Biden for his unyielding commitment to this bill. His leadership and dedication has ensured VAWA's passage. I must say, though, that all along I remained more optimistic than he that we would pass this bill I promised him we would. I want to take a moment to briefly summarize some of the important provisions in this legislation. First, the bill reauthorizes through fiscal year 2005 the key programs included in the original Violence Against Women Act, such as the STOP and Pro-Arrest grant programs. The STOP grant program has succeeded in bringing police and prosecutors, working in close collaboration with victim services providers, into the fight to end violence against women. The STOP grants were revised to engage State courts in fighting violence against women by targeting funds to be used by these courts for the training and education of court personnel, technical assistance, and technological improvements. The Pro-Arrest grants have helped to develop and strengthen programs and policies that mandate and encourage police officers to arrest abusers who commit acts of violence or violate protection orders. These grants have been expanded to include expressly the enforcement of protection orders as a focus for the grant program funds. The changes also make the development and enhancement of data collection and sharing systems to promote enforcement of protection orders a funding priority. Another improvement requires recipients of STOP and Pro-Arrest grant funds, as a condition of funding, to facilitate the filing and service of protection orders without cost to the victim in both civil and criminal cases. Additionally, the legislation reauthorizes the National Domestic Violence Hotline and rape prevention and education grant programs. It also contains three victims of child abuse programs, including the court-appointed special advocate program. The Rural Domestic Violence and Child Abuse Enforcement Grants are reauthorized through 2005. This direct grant program, which focuses on problems particular to rural areas, will specifically help Utah and other states and local governments with large populations living in rural areas. Second, the legislation includes targeted improvements that our experience with the original Act has shown to be necessary. For example, VAWA authorizes grants for legal assistance for victims of domestic violence, stalking, and sexual assault. It provides funding for transitional housing assistance, an extremely crucial complement to the shelter program, which was suggested early on by persons in my home state of Utah. It also improves full faith and credit enforcement and computerized tracking of protection orders by prohibiting notification of a batterer without the victim's consent when an out-of-state order is registered in a new jurisdiction. Another important addition to the legislation expands several key grant programs to cover violence that arises in dating relationships. Finally, it makes important revisions to the immigration laws to protect battered immigrant women. There is no doubt that women and children in my home state of Utah will benefit from the improvements made in this legislation. Mr. President, this is the type of legislation that can effect positive changes in the lives of all Americans. It provides assistance to battered women and their children when they need it the most. It provides hope to those whose lives have been shattered by domestic violence. I am proud to have worked with the women's groups in Utah and elsewhere in seeing that VAWA is reauthorized. With their help, we have been able to make targeted improvements to the original legislation that will make crucial services better and more available to women and children who are trapped in relationships of terror. I am proud of this achievement and what it will do to save the lives of victims of domestic violence. In closing, I again want to thank Senators Biden and Abraham, Congressman Bill McCollum, and Congresswoman Connie Morella for their leadership on and dedication to the issue of domestic violence. Legislators from both sides of the aisle in both Houses of Congress have been committed to ensuring that this legislation becomes law. I am proud to have worked with my fellow legislators to achieve this goal, which will bring much needed assistance to the victims of domestic violence. Madam President, I am not just talking about violence against women legislation and the work that Senator Biden and I have done through the years to make it a reality. I actually worked very hard in my home State to make sure we have women-in-jeopardy programs, battered women shelters, psychiatric children programs, and other programs of counseling, so that they can be taken care of in conjunction with the Violence Against Women Act and the moneys we put up here. In fact, we hold an annual charitable golf tournament that raises between $500,000 and $700,000 a year, most of which goes for seed money to help these women-in-jeopardy programs, children's psychiatric, and other programs in ways that will help our society and families. I believe in this bill. I believe it is something we should do. I think everybody ought to vote for it, and I hope, no matter what happens today, we pass this bill, get it into law, and do what is right for our women and children--and sometimes even men who are also covered by this bill because it is neutral. But I hope we all know that it is mostly women who suffer. I hope we can get this done and do it in a way that really shows the world what a great country we live in and how much we are concerned about women, children, families, and doing something about some of the ills and problems that beset us. How much time do I have remaining?

Mr. HATCH. Madam President, I yield the remainder of my time to the Senator from Pennsylvania. aimee's law

Mr. HATCH. The sex trafficking conference report also contains legislation known as ``Aimee's law.'' The purpose of Aimee's law is to encourage States to keep murderers, rapists, and child molesters incarcerated for long prison terms. Last year, a similar version of Aimee's law passed the Senate 81 to 17, and Aimee's law passed the House of Representatives 412 to 15. This legislation withholds Federal funds from certain States that fail to incarcerate criminals convicted of murder, rape, and dangerous sexual offenses for adequate prison terms. Aimee's law operates as follows: In cases in which a State convicts a person of murder, rape, or a dangerous sexual offense, and that person has a prior conviction for any one of those offenses in a designated State, the designated State must pay, from Federal law enforcement assistance funds, the incarceration and prosecution cost of the other State. In such cases, the Attorney General would transfer the Federal law enforcement funds from the designated State to the subsequent State. A State is a designated State and is subject to penalty under Aimee's law if (1) the average term of imprisonment imposed by the State on persons convicted of the offense for which that person was convicted is less than the average term of imprisonment imposed for that offense in all States; or (2) that person had served less than 85 percent of the prison term to which he was sentenced for the prior offense. In determining the latter factor, if the State has an indeterminate sentencing system, the lower range of the sentence shall be considered the prison term. For example, if a person is sentenced to 10-to-12 years in prison, then the calculation is whether the person served 85 percent of 10 years. The purpose of Aimee's law is simple: to increase the term of imprisonment for murderers, rapists, and child molesters. In this respect, Aimee's law is similar to the Violent-Offender-and-Truth-in- Sentencing Program and the Sentencing Reform Act of 1984. Since 1995, the Truth-in-Sentencing Program has provided approximately $600 million per year to States for prison construction. In order to receive these funds, States had to adopt truth-in-sentencing laws that require violent criminals to serve at least 85 percent of their sentences. As a result of such sentencing reforms, the average time served by violent criminals in State prisons increased more than 12 percent since 1993. Similarly, the Sentencing Reform Act of 1984 created the Federal sentencing guidelines and increased sentences for Federal inmates. I am proud to have supported both of these initiatives to increase prison terms for violent and repeat offenders. Some will say that Aimee's law violates the principles of federalism, and in many respects, I am sympathetic to these arguments. However, I would note that Aimee's law does not create any new Federal crimes, nor does it expand Federal jurisdiction into State and local matters. Instead, this law uses Federal law enforcement assistance funds to encourage States to incarcerate criminals convicted of murder, rape, and dangerous sexual offenses for adequate prison terms. In conclusion, I would like to acknowledge the efforts of Senator Santorum. He has been a tireless champion of Aimee's law. Without his leadership, Aimee's law would not have been included in the sex trafficking conference report. The State of Pennsylvania should be proud to have such an able and energetic Senator. My friend and colleague, the distinguished ranking member of the Judiciary Committee, has expressed frustration with certain legislative items being added to the sex trafficking conference report. I respect him for voicing his concerns. I too would have preferred to have each of the measures that were included in this sex trafficking conference report considered on their own. But we have witnessed, during this session of Congress, dilatory procedural maneuvering of the like I have never witnessed before in the Senate. Several bills which have passed both the House and the Senate are being held up with threats to filibuster the appointment of conferees. Motions to proceed to legislation are routinely objected to. As chairman of the Judiciary Committee, I was not even given the courtesy of being told that there was a Democratic hold on my interstate alcohol bill until after I sought to include it in the sex trafficking conference report. The public even witnessed the spectacle of the minority joining with the majority to limit debate on, and the amendments to, the Hatch H-1B bill and then turning around to repeatedly try to add non-relevant amendments to the bill in clear violation of the Senate rules. Just so the record is clear, there has been--and continues to be--an effort on the part of the minority to tie the Senate up in procedural knots and then accuse the majority of being unable to govern. That is their right under the rules. I do not recall engaging in similar tactics when Republicans were in the minority but I am confident there are instances where one could accuse of having engaged in similar dilatory tactics. But, I believe we eventually reached the point where our fidelity to the institution and our oaths of office transcended the short-term interests of ballot box legislating. The Senate has previously passed the interstate alcohol bill and the Aimee's law legislation by overwhelming votes. Ironically, the one piece of legislation included in this bill which my colleagues on the other side of the aisle do not object to having been added is the Violence Against Women Act. This legislation has not been considered by the Senate, although I am confident had it been, it would have passed overwhelmingly. In short, no one respects the rules of the Senate more than me, In the end, I hope the minority will rethink its tired and belabored efforts to prevent the Senate from doing the public's work. Then we can adjourn and return to our respective states where the intervening adjournment can be spent with the real people of America--the workers, the teachers, and students--instead of the pollsters and spin doctors which seem to be of paramount attention to too many of my colleagues. Mr. President, today I am pleased by the likely passage tonight of S. 577, the Twenty-First Amendment Enforcement Act. Originally introduced on March 10, 1999, this legislation provides a mechanism that will finally enable states to effectively enforce their laws prohibiting the illegal interstate shipment of beverage alcohol. At the outset, I should note that S. 577 has enjoyed overwhelming support on both sides of the aisle and in both the Senate and the House of Representatives. Originally passed by the Senate as an amendment by Senator Byrd to the Juvenile Justice bill, S. 254, on a lopsided vote of 80-17 on May 18, 1999, a revised version of S. 577 bill passed out of the Judiciary Committee on a 17-1 vote on March 2, 2000. As of the time of final passage, there were 23 cosponsors of the bill in the Senate--12 Republicans and 11 Democrats. In the House, the companion legislation to S. 577, H.R. 2031, sponsored by my friend from Florida, Representative Joe Scarborough, passed the House initially by a vote of 310-112 on August 3, 1999. H.R. 2031 was backed by a coalition of 45 cosponsors in the House. What is included in the conference report is the version of S. 577 as passed by the Judiciary Committee in March. It is important to note that the legislation, as revised with some amendments in the Committee to address both the Wine Institute's and the American Vintners Association's concerns, even got the support of Senators Feinstein and Schumer, the two most vocal early opponents of the legislation. We worked hard with representatives of the wineries on language to further clarify that this bill does not, even unintentionally, somehow change the balancing test employed by the Courts in reviewing State liquor laws. We were able to reach agreement and incorporated those changes in the bill. The Wine Institute and the Vintners Association both have written us that they are no longer oppose the legislation. Let me get to the substance of the legislation, the purpose behind it and the history of this issue--both legislative and constitutional. I think it is important to fully understand this history to appreciate this legislation. The simple purpose of this bill is to provide a mechanism to enable States to effectively enforce their laws against the illegal interstate shipment of alcoholic beverages. Interstate shipments of alcohol directly to consumers have been increasing exponentially--and, while I certainly believe that interstate commerce should be encouraged, and while I do not want small businesses stifled by unnecessary or overly burdensome and complex regulations, I do not subscribe to the notion that purveyors of alcohol are free to avoid State laws which are consistent with the power bestowed upon them by the Constitution. Unfortunately, that is exactly want is happening, and that is what this legislation will address. All States, including the State of Utah, need to be able to address the sale and shipment of liquor into their State consistent with the Constitution. As my colleagues know, the Twenty First Amendment ceded to the States the right to regulate the importation and transportation of alcoholic beverages across their borders. States need to protect their citizens from consumer fraud and have a claim to the tax revenue generated by the sale of such goods. And of the utmost importance, States need to ensure that minors are not provided with unfettered access to alcohol. Unfortunately, indiscriminate direct sales of alcohol circumvent this State right. Let me emphasize that there are many companies engaged in the direct interstate shipment of alcohol who do not violate State laws. In fact, many of these concerns look beyond their own interests and make diligent efforts to disseminate information to others to ensure that State laws are understood and complied with by all within the interstate industry. This legislation only reaches those that violate the law. Now, I would like to say a few words on the history of this issue. As many of my colleagues know, debate over the control of the distribution of beverage alcohol has been raging for as long as this country has existed. Prior to 1933, every time individuals or legislative bodies engaged in efforts to control the flow and consumption of alcohol, whether by moral persuasion, legislation or ``Prohibition,'' others were equally determined to repeal, circumvent or ignore those barriers. The passage of state empowering federal legislation such as the Webb- Kenyon Act and the Wilson Act were not sufficient, in and of themselves, to provide states with the power they needed to control the distribution of alcohol in the face of commerce clause challenges. It took the passage of a constitutional amendment--and the re-enactment of the Webb-Kenyon Act in 1935--to give states the power they needed to control the importation of alcohol across their borders. The Twenty-First Amendment was ratified in 1933. That amendment ceded to the States the right to regulate the importation and transportation of alcoholic beverages across their borders. By virtue of that grant of authority, each State created its own unique regulatory scheme to control the flow of alcohol. Some set up ``State stores'' to effectuate control of the shipment into, and dissemination of alcohol within, their State. Others refrained from direct control of the product, but set up other systems designed to monitor the shipments and ensure compliance with its laws. But whatever the type of State system enacted, the purpose was much the same: to protect its citizens and ensure that its laws were obeyed. With passage of the ``Twenty-First Amendment Enforcement Act,'' the States will be empowered to fight illegal sales of alcohol--let me emphasize illegal. This legislation is particularly well-timed in that it comes on the heels of a powerful opinion uphold state rights under the 21st Amendment in the case of Bridenbaugh v. Freeman-Wilson, by respected jurist Frank Easterbrook and the Seventh Circuit Court of Appeals. In an opinion upholding a state's right to regulate the importation of alcohol and prohibit illegal sales, Judge Easterbrook cogently articulated the role of the 21st Amendment in the Constitutional framework: . . . the twenty-first amendment did not return the Constitution to its pre-1919 form. Section 2 . . . closes the loophole left by the dormant commerce clause, . . . No longer may the dormant commerce clause be read to protect interstate shipments of liquor from regulation; sec. 2 speaks directly to these shipments . . . No decision of the Supreme Court holds or implies that laws limited to the importation of liquor are problematic under the dormant commerce clause. Some who would seek to avoid state and federal laws have erroneously complained that S. 577 will allow states to enforce discriminatory state laws. These complaints are without merit. In actuality, failure to pass this bill would have had the effect of discriminating against in-state distributors by effectively giving out-of-state distributors de facto immunity from state regulation. Congress and the Constitution have recognized that States have a legitimate interest in being able to control the interstate distribution of alcohol on the same terms and conditions as they are able to control in-state distribution. As Judge Easterbrook pointed out: Indeed, all ``importation'' involves shipments from another state or nation. Every use of sec. 2 could be called ``discriminatory'' in the sense that plaintiffs use that term, because every statute limiting importation leaves intrastate commerce unaffected. If that were the sort of discrimination that lies outside state power, then sec. 2 would be a dead letter. . . . Congress adopted the Webb- Kenyon Act, and later proposed sec. 2 of the twenty-first amendment, precisely to remedy this reverse discrimination and make alcohol from every source equally amenable to state regulation. That is exactly what S. 577 accomplishes. It simply ensures that all businesses, both in-state and out-of-state, are held accountable to the same valid laws of the state of delivery. It is important to note that the Webb-Kenyon Act already prohibited the interstate shipment of alcohol in violation of state law. Unfortunately, that general prohibition lacked an appropriate enforcement mechanism, thus thwarting the states' ability to enforce their laws--those same laws they enacted pursuant to valid Constitutional authority under the Twenty-First Amendment--in state court proceedings through jurisdictional roadblocks. The legislation passed today removes that impediment to state enforcement by simply providing the Attorney General of a State, who has reasonable cause to believe that his or her State laws regulating the importation and transportation of alcohol are being violated, with the ability to file an action in federal court for an injunction to stop those illegal shipments. This bill is balanced to ensure due process and fairness to both the State bringing the action and the company or individual alleged to have violated the State's laws. The bill: 1. Assures defendants of due process by requiring that no injunctions may be granted without notice to the defendants or an opportunity to be heard; 2. Assures defendants of due process by requiring that no preliminary injunction may be issued without proving: (a) irreparable injury, and (b) a probability of success on the merits; 3. Clarifies that injunctive relief only may be obtained--no damages, attorneys fees or other costs--may be awarded; 4. Assures that cases brought are truly interstate/federal in character by clarifying that in-state licensees and other authorized in-state purveyors, readily amenable to state proceedings, may not be subjected to federal injunctive actions; 5. Allows actions only against those who have violated or are currently violating state laws regulating the importation or transportation of intoxicating; 6. Notes that evidence from an earlier hearing on a request for a preliminary injunction--but from no other state or federal proceedings, may be used in subsequent hearings seeking a permanent injunction-- conserving court resources but protecting a defendant's right to confront the evidence against him; 7. Ensures that S. 577 may not be construed to interfere with or otherwise modify the Internet Tax Freedom Act; 8. Provides for venue where the violation actually occurs--in the state into which the alcohol is illegally shipped. 9. Protects innocent interactive computer services (ICS's) and electronic communications services (ECS's) from the threat of injunctive actions as a result of the use of those services by others to illegally sell alcohol; 10. Prohibits injunctive actions involving the advertising or marketing (but not the sale, transportation or importation) of alcohol where such advertising or marketing would be lawful in the jurisdiction from which the advertising originates; 11. Requires that laws sought to be enforced by the states under S. 577 be valid exercises of authority conferred upon the states by the 21st Amendment and the Webb-Kenyon Act. Madam President, contrary to some of the erroneous claims of some in the narrow opposition, I want to reemphasize that S. 577 is intended to assist the states in the enforcement of constitutionally-valid state liquor laws by providing them with a federal court forum. We are not stopping Internet or for that matter, any, legal sales of alcohol. Indeed, there is no objection to this legislation by a host of companies who sell wine over the Internet, such as Vineyards. The sole remedy available under the bill is injunctive relief--that is, no damages, no civil fines, and no criminal penalties may be imposed solely as a result of this legislation. We specifically included rules of construction language in subsection 2(e) stating that this legislation ``shall be construed only to extend the jurisdiction of Federal courts in connection with State law that is a valid exercise of power invested in the States'' under the Twenty- First Amendment as that Amendment has been interpreted by the U.S. Supreme Court ``including interpretations in conjunction with other provisions of the Constitution.'' This bill is not to be construed as granting the States any additional power beyond that. Consequently, the state power vested under the Twenty-First Amendment, as I have discussed above, is appropriately interpreted with and against other rights and privileges protected by the Constitution, as the Supreme Court does in every case. It should also be made clear that by enacting S. 577, we are not passing on the advisability or legal validity of the various state laws regulating alcoholic beverages, which continue to be litigated in the courts, and should appropriately be a matter for the courts to decide. colloquy on 21st amendment enforcement act

Mr. HATCH. Madam President, I would be happy to consider this issue after next year and examine the legislation's impact on small wineries. I respect my colleagues from California's commitment to their constituents. I must reemphasize, however, that this legislation does nothing to hurt the so-called small wineries in competing or marketing their products in the wine business. I worked hard for over a year with the wine industry to ensure that the legislation does not have any unintended consequences, and want to reassure my colleague from California that the version of the legislation that is included in the conference report incorporates revisions made in the committee to address both the Wine Institute's and the American Vintners Association's concerns. We also included language to further clarify that this bill does not, even unintentionally, somehow change the balancing test employed by the courts in reviewing state liquor laws. I should also not that the Wine Institute and the Vintners Association, as well as numerous Internet commerce companies, have written us that they no longer oppose the legislation. The simple purpose of this bill is to provide a mechanism to enable States to effectively enforce their laws against the illegal interstate shipment of alcoholic beverages. I hope the distinguished Senator from California knows that while I certainly believe that interstate commerce should be encouraged, and while I do not want small businesses stifled by unnecessary or overly burdensome and complex regulations, I do not subscribe to the notion that purveyors of alcohol are free to avoid State laws which are consistent with the power bestowed upon them by the Constitution--and I should add that I don't think that Senator Boxer subscribes to that notion either. Let me emphasize that there are many companies engaged in the direct interstate shipment of alcohol who do not violate State laws. In fact, many of these concerns look beyond their own interests and make diligent efforts to disseminate information to others to ensure that State laws are understood and complied with by all within the interstate industry. This legislation only reaches those that violate the law, and only allows the attorney general of a state to go to Federal court to enforce its laws. It is just a jurisdictional legislation and does not allow or prohibit any sales or marketing by any winery, large or small. Having said that, I do hear the concerns by Senator Boxer and am willing to consider the impact of this legislation after the law has been on the books for a year or so, as my colleague has asked. I look forward to working with her to insure that this legislation does not harm small wineries which comply with the law.

Mr. HATCH. Madam President, I object.

Mr. HATCH. Madam President, let me use 1 more minute, and I will make a couple more comments. I want to express my strong support for the underlying bill in this conference report dealing with victims of sex trafficking. I am proud to have worked with my colleagues on the Foreign Relations Committee, led by Senators Brownback and Wellstone for much of this past summer, on the significant criminal and immigration provisions in this legislation. This is an important measure that will strengthen the ability of law enforcement to combat international sex trafficking and provide needed assistance to the victims of such trafficking. I think we can all be very proud of this effort. Before I conclude, Mr. President, I want to thank all of the committed staff members on both sides of the aisle and on several committees for their talented efforts to get this legislation done. First, on Senator Biden's staff, I thank Alan Hoffman, chief of Staff for his tireless commitment, as well as current counsel Bonnie Robin- Vergeer and former counsel Sheryl Walters. They are truly professionals. On Senator Abraham's staff, I'd like to thank Lee Otis, and her counterpart on Senator Kennedy's staff, Esther Olavarria. On the Foreign Relations Committee, I'd like to express my thanks to staff Director Biegun and the committed staffs of Senator Brownback and Wellstone, including Sharon Payt and Karen Knutson. And finally, Mr. President, there are many dedicated people on my own staff who deserve special recognition. I thank my chief counsel and staff director, Manus Cooney, as well as Sharon Prost, Maken Delrahim, and Leah Belaire. I ask unanimous consent that a joint managers' statement be printed in the Record.

Mr. HATCH. Madam President, I ask unanimous consent that two section- by-section summaries of the Violence Against Women Act be printed in the Record.

Mr. HATCH. If the Senator would yield again, if we made that the criterion, that you have to have a lot of trial experience, I am afraid we would hurt the Federal Judiciary in many respects because there are some great people----

Mr. HATCH. I agree with the Senator. I do not think it is critical that a person have prior trial experience to be nominated to the Federal bench.

Mr. HATCH. Will the Senator yield? I want to agree with that.

Mr. HATCH

Mr. HATCH. Without losing my own time, I yield 5 minutes to the distinguished Senator from Vermont off the leader's time, 2 minutes from the distinguished Senator from Minnesota off the leader's time, and I understand the distinguished Senator from New York desires 5 minutes off the minority leader's time.

Mr. HATCH

Mr. HATCH. Mr. President, during the last several weeks I have listened as some of my Democratic colleagues have taken the Senate floor to complain about the Senate's work on judicial nominations. Some have complained that there is a vacancy crisis in the federal courts. Some have complained that the Republican Senate has not confirmed enough of President Clinton's judicial nominees. Some have complained that the confirmation record of the Republican Senate compares unfavorably to the Democrats' record when they controlled this body. Some have accused the Republican Senate of being biased against female and minority judicial nominees. These complaints and accusations are wholly false and completely without merit. First, there is and has been no judicial vacancy crisis. In 1994, when Senate Democrats processed the nominations of President Clinton, there were 63 vacancies and a 7.4 percent vacancy rate. Today, when Republicans control the Senate and process the nominations of President Clinton, there are 63 vacancies and a 7.4 percent vacancy rate--exactly the same as in 1994. Of the current vacancies, the President has failed to make a nomination for 25 of them--strong evidence that, in fact, there is no vacancy crisis. Nevertheless, despite the fact that there are the same number of vacancies and the same vacancy rate now as in 1994, Democrats continue to claim that there is a vacancy crisis. Second, the Republican Senate has been fair with President Clinton in confirming his nominees. In fact, the Senate has confirmed President Clinton's nominees at almost an identical rate as it confirmed those of Presidents Reagan and Bush. President Reagan appointed 382 Article III judges. By comparison, President Clinton has appointed 377 Article III judges--only five fewer than were appointed by President Reagan. During the Reagan presidency, the Senate confirmed an average of 191 judges per term. During the one-term Bush presidency, the Senate confirmed 193 judges. During the Clinton presidency, the Senate has confirmed an average of 189 judges per term. Third, the confirmation record of the Republican Senate compares favorably to the Democrats' record when they controlled this body. Comparing like to like, this year should be compared to prior election years during times of divided government. In 1988, the Democrat- controlled Senate confirmed 41 Reagan judicial nominees. The Republican Senate this year has confirmed 39 of President Clinton's nominees--a nearly identical number. The 1992 election year requires a bit more analysis. The Democrat- controlled Senate did confirm 64 Bush nominees that year, but this high number was due to the fact that Congress had recently created 85 new judgeships. Examining the percentage of nominees confirmed shows that compared to 1992, there is no slowdown this year. In 1992, the Democrat-controlled Senate confirmed 33 of 73 individuals nominated that year--or 45 percent. This year, the Senate has confirmed 25 of 46 individuals nominated in 2000--or 54 percent, almost 10 percent higher than in 1992. Those who cite the 1992 high of 64 confirmations as evidence of an election-year slowdown do not mention these details. Nor do they mention that despite those 64 confirmations, the Democrat- controlled Senate left vacant 97 judgeships when President Bush left office--far more than the current 63 vacancies. Senate Democrats often cite Chief Justice Rehnquist's 1997 remarks as evidence of a Republican slowdown. Referring to the 82 vacancies then existing, the Chief Justice said: ``Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal Judiciary.'' Senators who cite this statement, however, do not also cite the Chief Justice's similar statement in 1993, when the Democrats controlled both the White House and the Senate: ``There is perhaps no issue more important to the judiciary right now than this serious judicial vacancy problem.'' As the head of the Judicial Branch, the Chief Justice has continued to maintain pressure on the President and Senate to speedily confirm judges. He has not singled out the Republican Senate, however. The Chief Justice made additional comments in 1997, which also undermine the claim of a vacancy crisis. After calling attention to the existing vacancies, he wrote: ``Fortunately for the Judiciary, a dependable corps of senior judges has contributed significantly to easing the impact of unfilled judgeships.'' The 63 current vacancies, in other words, are not truly vacant. There are 363 senior judges presently serving in the federal judiciary. Although judges' seats are technically counted as vacant, they continue to hear cases at reduced workload. Assuming that they maintain a 25 percent workload--the minimum required by law--the true number of vacancies is less than zero. Last week, Senator Harkin said that this year the Senate has confirmed only one circuit court nominee nominated this year, and Senator Leahy said that this year the Judiciary Committee has reported only three circuit court nominees nominated this year. The fact is, however, the Senate has confirmed eight circuit judges this year. By comparison, the Democrat-controlled Senate confirmed seven of President Reagan's circuit court nominees in 1988 and 11 of President Bush's circuit court nominees in 1992. It is true that of the eight circuit court nominees confirmed this year, some were nominated during the first session and some were nominated during the second session of this Congress--just as the seven Reagan circuit court nominees confirmed in 1988 and the 11 Bush circuit court nominees confirmed in 1992 were nominated in both the first and second sessions of those Congresses. The fact that the Senate has confirmed eight circuit court nominees in this election year shows that we have been at least as fair to President Clinton with regard to appeals court nominees, as Democrats were to Presidents Reagan and Bush. The Senate has confirmed one more circuit court nominee in this last year of President Clinton's Presidency than Democrats confirmed in the last year of President Reagan's presidency, and only three circuit judges fewer than Democrats confirmed in the last year of President Bush's presidency--when judicial vacancies were at an all time high. Fourth, allegations of race or sex bias in the confirmation process are absolutely false and are offensive. Over the last several months, I have listened with dismay as some have, with escalating invective, implied that Senate Republicans are biased against minority or female judicial nominees. Just this month, President Clinton issued a statement alleging bias by the Senate. He said: ``The quality of justice suffers when highly qualified women and minority candidates are denied an opportunity to serve in the judiciary.'' The White House, though, also issued a statement boasting of the high number of women and minorities that Clinton has appointed to the federal courts: ``The President's record of appointing women and minority judges is unmatched by any President in history. Almost half of President Clinton's judicial appointees have been women or minorities.'' The Senate, obviously, confirmed this record number of women and minorities. That is hardly evidence of systemic bias. Indeed, it cannot credibly be argued that President Clinton has appointed a diverse federal bench and that Republicans simultaneously have prevented him from appointing a diverse federal bench. Last November, Senator Joseph Biden, former Chairman of the Judiciary Committee, stated: There has been argumentation occasionally made . . . that [the Judiciary] Committee . . . has been reluctant to move on certain people based upon gender or ethnicity or race. . . . [T]here is absolutely no distinction made [on these grounds] . . . [W]hether or not [a nominee moves] has not a single thing to do with gender or race. . . . I realize I will get political heat for saying that, but it happens to be true. Why then have Democrats insisted on repeating the insidious mantra that the Republican Senate is discriminating against women and minorities in the confirmation process? Why did John Podesta, the President's Chief of Staff appear on CNN yesterday to complain that ``women and minority candidates for U.S. Court of Appeals are sitting, stuck in the Senate Judiciary Committee''? Why did Senator Robb take the Senate floor to accuse Senate Republicans, in inflammatory language, of ``standing in the courthouse door'' and refusing to ``desegregate the Fourth Circuit''? Why did Senator Leahy take the Senate floor and list all the female nominees currently pending? Why? Because Democrats have made the crass political decision to attempt to energize women and minority voters by claiming that Senate Republicans are biased against women and minorities nominated for federal judgeships. This coordinated overture to female and minority voters by the White House, the Gore campaign and Senate Democrats is unseemly. The President's determination to play politics with judicial nominations appears as if it will only intensify. Just last Friday, the President nominated African-American Andre Davis to a seat on the U.S. Court of Appeals for the Fourth Circuit, and it is my understanding that he will nominate a woman, Elizabeth Gibson, to that Court today. The President has persisted in making these nominations, even though I have made clear to him that the Judiciary Committee will not hold any additional nominations hearing this year. The President nominated Mr. Davis and Ms. Gibson, knowing full well that they have no chance of being confirmed. Mr. Davis and Ms. Gibson are being used for political purposes, so the President and Democrats can argue that Senate Republicans are biased against women and minorities. Senate Republicans, however, are not biased against women and minority nominees. Data comparing the median time required for Senate action on male vs. female and minority vs. non-minority nominees shows only minor differences. During President Bush's final two years in office, the Democrat-controlled Senate took 16 days longer to confirm female nominees compared with males. This differential decrease to only 4 days when Republicans gained control of the Senate in 1994. During the subsequent 105th and 106th Congresses, it increased. The data concerning minority nominees likewise shows no clear trend. When Republicans gained control in 1994, it took 28 days longer to confirm minority nominees as compared to non-minority nominees. This difference decreased markedly during the 105th Congress so that minorities were confirmed 10 days faster than non-minorities. The present 106th Congress is taking only 11 days longer to confirm minority nominees than it is to confirm non-minority nominees. These minor differences are a matter of happenstance. They show no clear trend. Senator Biden is right when he says that ``whether or not [a nominee moves] has not a single thing to do with gender or race.'' And even if there were actual differences, a differential of a week or two is insignificant compared to the average time that it takes to select and confirm a nominee. On average, the Clinton White House spends an average of 315 days to select a nominee while the Senate requires an average of 144 days to confirm. Under my stewardship, the Judiciary Committee has considered President Clinton's judicial nominees more carefully than the Democratic Senate did in 1993 and 1994. Some individuals confirmed by the Senate then likely would not clear the committee today. The Senate's power of advice and consent, after all, is not a rubber stamp. There is no evidence, however, of bias or of a confirmation slowdown. There is no evidence of bias because, in fact, the Senate is not biased against female and minority nominees--indeed, the Senate has confirmed a record number of such nominees for judicial office. Furthermore, there is no evidence of a confirmation slowdown because, in fact, the confirmation process has been conducted in the normal fashion and at the normal speed. In conclusion, it always is the case that some nominations ``die'' at the end of the Congress. In 1992, when Democrats controlled the Senate, Congress adjourned without having acted on 53 Bush nominations. I have a list here of the 53 Bush nominees whose nominations expired when the Senate adjourned in 1992, at the end of the 102nd Congress. By comparison, there are only 40 Clinton nominations that will expire when this Congress adjourns. My Democratic colleagues have discussed at length some of the current nominees whose nominations will expire at the adjournment of this Congress. Madam President, I ask unanimous consent that this list of 53 Bush nominations that Senate Democrats permitted to expire in 1992 be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I move to reconsider the vote.