Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, the Constitution provides that the President ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint * * * Judges of the Supreme Court, and all other Officers of the United States * * *'' Thus, the President has the power to nominate persons to serve as federal judges and the Senate has the power to render advice and consent on these nominations. And the Constitution requires that the President's power to nominate be exercised ``with'' the Senate's power to advise and consent in order for a final appointment to be made. To the extent such cooperation occurs, the appointment process will be fair, orderly, and timely. To the extent such cooperation does not occur, the appointment process will break down. When I assumed the Chair of the Judiciary Committee, I inherited a process rocked by public strife and private in-fighting. I was determined to lower the temperatures on both sides of the Committee and to preside over a process that did not allow personal attacks on a nominee's character. To accomplish this I turned to the Constitution itself and its requirement that the President and the Senate work ``with'' each other in the appointment process and the Constitution's limits on the power of federal judges. And it has worked. When the President has consulted with the Committee and with home-state Senators, a nominee has moved through the process smoothly. Under my Chairmanship, the Committee has focused its review on each nominee's, integrity, temperament, competence, and respect for the rule of law. To date Republicans have confirmed 325 of President Clinton's nominees to the federal bench. When there have been problems with a nominee, or a potential nominee, the President's consultation with the Committee has enabled us to address those problems privately. For example, a senator on the Committee recently asked me to examine a potential nominee, and when there were problems with that nominee, that Senator and I were able to deal with the problem privately and I expect another candidate will be forthcoming soon. Thus, the process has worked without damaging a candidate's reputation or his family. When the President works with the Senate the process will adequately staff the federal Judiciary. Indeed, after last year's extraordinary number of confirmations, the vacancy rate in the federal Judiciary was reduced to a very low 5.9%. The Chief Justice in his most recent report on the state of the federal Judiciary congratulated the President and the Senate, stating ``I am pleased to report on the progress made in 1998 by the Senate and the President in the appointment and confirmation of judges to the federal bench ....'' As of today, the Judiciary Committee has held 5 hearings for judicial nominees and have reported 30 nominees to the floor of the Senate. There are currently just 62 vacancies, yielding a vacancy rate of only 7.4%. This is 1 vacancy less than existed at the end of the 103rd Congress when Democrats controlled the Judiciary Committee. Further, should the Senate confirm the 8 nominees that are currently on the floor and the 4 nominees for which we held a hearing today, the number of vacancies will fall to 51, yielding a vacancy rate of just 6%. This will be the lowest vacancy rate for any first session of Congress since the expansion of the judiciary in 1990. Moreover, it is virtually equivalent to the vacancy rate at the end of the last Congress, which was the lowest vacancy rate for any session of Congress since the expansion of the judiciary in 1990. When the President works with us and respects the constitutional advice and consent duties of the Senate, the process has, in fact, worked smoothly. When the President fails to work with the Senate, however, the process does not work smoothly. This was the unfortunate case with Judge Ronnie White. The record shows that Judge White is a fine man. However, he has written some questionable opinions on death penalty cases. The record resulted in both Missouri Senators opposing his nomination on the floor. This record resulted in local and national law enforcement agencies opposing his nomination as well. Here are just some of the letters expressing concern or opposition to Judge White's nomination: The Missouri Federation of Police Chiefs oppose the nomination; the National Sheriff's Association opposed the nomination; the Mercer County, Missouri prosecutor opposed the nomination; the Missouri Sheriffs' Association expressed deep concern over one of Judge White's dissents in a death penalty case involving the murder of one sheriff, two deputies, and the wife of another sheriff, and asked the Senate to consider that dissent in voting on Judge White's nomination. Indeed, 77 of 114 of Missouri's sheriffs asked for serious consideration of Judge White's record. The sheriff of Moniteau County, Missouri, whose wife was murdered by the criminal for whom Judge White would have reversed the death sentence wrote in opposition to the nomination. Mr. President, I ask unanimous consent that these letters be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I appreciate that the Senate has finally acted on S. 82 to reauthorize the FAA and to deal with some of our Nation's air transportation issues. In particular, I am pleased that the amendment offered by the Senator from Washington and the Senator from West Virginia was adopted to allow exemptions to the current perimeter rule at Ronald Reagan Washington National Airport. I recognize that this is a serious matter affecting a number of cities and high-profile airports, and I commend my colleagues who worked long and hard to develop this amendment. While I would have preferred that the final bill include the 48 exemptions contained in S. 82 as it was reported by the Commerce Committee, I recognize that reducing this number to 24 reflects a reasonable compromise. I believe the amendment proposed by Senators Gorton and Rockefeller achieves the central objective, which was to maintain the current level of safety while improving air service for the flying public--which is now almost everyone at one time or another. The compromise also assiduously avoids adversely affecting the quality of life for those living within the perimeter. Today, my constituents in Utah and in other western communities must double or even triple connect to fly into Washington, DC. The Gorton/ Rockefeller amendment goes a long way to addressing this inconvenient and time-consuming process and to ensuring that passengers in Utah and the Intermountain West have expanded options. I believe that use of this limited exemption should be to improve access throughout the west and not limit the benefits to cities which already enjoy a number of options. Therefore, when considering applications for these slots, I think it is important for the U.S. Department of Transportation to consider carefully these factors and award opportunities to western hubs, such as the one in Salt Lake City, which connects the largest number of cities to the national transportation network. I want U.S. DOT officials to know that I will be carefully monitoring the implementation of the perimeter slot exemption. I look forward to working with Transportation Department officials as well as my colleagues in the Senate to ensure that the traveling public has the greatest number of options available to them. I thank the chair.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that it be in order to ask for the yeas and nays on each nomination with one showing of hands.

Mr. HATCH. I now ask for the yeas and nays.

Mr. HATCH

Mr. HATCH. Mr. President, today I am proud to offer the Aircraft Safety Act of 1999 as an amendment to S. 82, the Air Transportation Improvement Act. I join with Senator Leahy and Senator Thurmond in proposing this amendment, which will provide law enforcement with a potent weapon in the fight to protect the safety of the traveling public. This is one piece of legislation which could truly help save hundreds of lives. Current federal law does not specifically address the growing problem of the use of unapproved, uncertified, fraudulent, defective or otherwise unsafe aviation parts in civil, military and public aircraft. Those who traffic in this potentially lethal trade have thus far been prosecuted under a patchwork of Federal criminal statutes which are not adequate to deter the conduct involved. Most subjects prosecuted to date have received little of no jail time, and relatively minor fines have been assessed. Moreover, law enforcement has not had the tools to prevent these individuals from reentering the trade or to seize and destroy stockpiles of unsafe parts. While the U.S. airline industry can take pride in the safety record they have achieved thus far, trade in fraudulent and defective aviation parts is a growing problem which could jeopardize that record. These suspect parts are not only readily available throughout the country, they are being installed on aircraft as we speak. This problem will continue to grow as our fleet of commercial and military aircraft continues to age. Safe replacement parts are vital to the safety of this fleet. When you consider that one Boeing 747 has about 6 million parts, you begin to understand the potential for harm caused by the distribution of fraudulent and defective parts. Where do these parts come from? Some are used or scrap parts which should be destroyed, or have not been properly repaired. Others are simply counterfeit parts using substandard materials unable to withstand the rigors imposed through daily use on a modern aircraft. Some are actually scavenged from among the wreckage and broken bodies strewn about after an airplane crash. For example, when American Airlines Flight 965 crashed into a mountain in Columbia in 1995, it wasn't long before some of the parts from that aircraft wound up back in the United States and resold as new by an unscrupulous Miami dealer who had obtained them through the black market. While the danger to passengers and civilians on the ground is substantial, this danger also jeopardizes the courageous men and women of our armed forces. The Army is increasingly buying commercial off- the-shelf aircraft and parts for their growing small jet and piston- engine passenger and cargo fleets. The Department of Defense will buy 196 such aircraft by 2005 and virtually every major commercial passenger aircraft is in the Air Force fleet, although the military designation is different. In addition, there are dozens of specially configured commercial aircraft that have frame modifications to serve special missions, such as reconnaissance and special operations forces. The safety of all of these vehicles is dependent on the quality of the parts used to repair them and keep them flying. The amendment we have proposed will criminalize: (1.) The knowing falsification or concealment of a material fact relating to the aviation quality of a part; (2.) The knowing making of a fraudulent misrepresentation concerning the aviation quality of a part; (3.) the export, import, sale, trade or installation of any part where such transaction was accomplished by means of a fraudulent certification or other representation concerning the aviation quality of a part; (4.) An attempt or conspiracy to do the same. The penalty for a violation will be up to 15 years in prison and a fine of up to $250,000, however, if that part is actually installed, the violator will face up to 25 years and a fine of $500,000. And if the part fails to operate as represented and serious bodily injury or death results, the violator can face up to life in prison and a $1,000,000 fine. Organizations committing a violation will be subject to fines of up to $25,000,000. In addition to the enhanced criminal penalties created, the Department of Justice may also seek reasonable restraining orders pending the disposition of actions brought under the section, and may also seek to remove convicted persons from engaging in the business in the future and force the destruction of suspect parts. Criminal forfeiture of proceeds and facilitating property may also be sought. The Attorney General is also given the authority to issue subpoenas for the purpose of facilitating investigations into the trafficking of suspect parts, and wiretaps may be obtained where appropriate. This amendment is supported by Attorney General Reno, Secretary Slater, Secretary Cohen and NASA Administrator Goldin, and OMB has indicated that this amendment is in accord with the President's program. I ask my fellow Senators to join with Senators Leahy, Thurmond and me in supporting this important piece of legislation. I ask unanimous consent that relevant material, including a copy of the amendment be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to address the nomination of Judge Ronnie Lee White, of Missouri, to the United States District Court for the Eastern District of Missouri. We have heard thorough discussions of the nominee by the distinguished Senators from Vermont and from Missouri. In coming to my decision on this nominee, I have considered the fairness of the process under which Judge White has been reviewed, the deference due to the President, and the deference due to the Senators from the nominee's home State. This is a very difficult case. As chairman of the Judiciary Committee, I have conducted thorough hearings and reviewed nominees in a fair and even-handed manner. As a result, we have seen a hearings process that does not include personal attacks on nominees and that maintains the institutional integrity of the Senate. On numerous occasions, even when several of my Republican colleagues voted against nominees, I maintained a fair process free from personal attacks on nominees. This was the case with Judge White. The committee held a fair and objective hearing on Judge White and thoroughly reviewed his record. In considering any nomination, I believe that the President, in whom the Constitution vests the nominations power, is due a large degree of deference. Even though there are a large number of the President's nominees that I would not have nominated had I been President, I have supported these nominees in obtaining a floor vote because in my view, the Constitution requires substantial deference to the President. Of course, the more controversial a nominee is, the longer it takes to garner the consensus necessary to move such a nominee out of committee. Such is the case with Judge White. I supported Judge White coming to the floor on two occasions. In the last vote in committee, no fewer than six of my Republican colleagues voted against reporting Judge White to the floor. At that point, however, I gave the President the deference of allowing a vote on his nominee and voted to report Judge White. I must say that I am deeply disappointed by the unjust accusations from some that this body intentionally delays nominees, such as Judge White, based on their race. As the administration is well aware, it is not a nominee's race or gender that slows the process down, but rather the controversial nature of a nominee based on his or her record. Indeed, nominees such as Charles Wilson, Victor Marrero, and Carlos Murguia, minority nominees, and Marryanne Trump Barry, Marsha Pechman, and Karen Schrier, female nominees, had broad support and moved quickly through the committee and were confirmed easily on the floor. And, although the committee does not keep race and gender statistics, a brief review of the committee's record so far this session shows that a large proportion of the nominees reported to the floor and confirmed consists of minorities and women. I categorically reject the allegation that race or gender, as opposed to substantive controversy, has ever played any role whatsoever in slowing down any nominee during my tenure as chairman. After a fair and thorough review in committee and after paying the deference to the President to obtain a vote on the floor, I consider the position of a nominee's home State Senators. These Senators are in a unique position to evaluate whether a nominee instills the confidence in the people of a State necessary to be a successful Federal judge in that State. This is especially true for a district judge nominee whose jurisdiction, if confirmed, would be wholly limited to that particular State. Thus, there has developed a general custom and practice of my giving weight to the Senators from a nominee's home State. There have been several instances where--notwithstanding some serious reservations on my part--I voted to confirm district court nominees because the Senators from the nominees home State showed strong, and in some cases, bipartisan support. The nominations of Keith Ellison, Allen Pepper, Anne Aiken, Susan Mollway, and Margaret Morrow are examples of where I supported contested district court nominees and relied on the view of the home-State Senators in reaching my decision. While I have harbored great concerns on the White nomination, I withheld my final decision until I had the benefit of the view of my colleagues from Missouri. I was under the impression that one of my colleagues might actually support the nomination, so I felt that the process should move forward--and it did. Since the committee reported Judge White to the floor of the Senate, however, both of the Senators from Missouri have announced their opposition to confirming Judge White. Also, since the committee reported this nominee to the floor, the law enforcement community of Missouri has indicated serious concerns, and in some cases, open opposition to the nomination of Judge Ronnie White. And indeed, I have been informed that the National Sheriffs Association opposes this nomination. Opposition is mounting and it would perhaps be preferable to hold another hearing on the nomination. But if we must move forward today, it is clear to me that Judge White lacks the home-State support that I feel is necessary for a candidate to the Federal district court in that State. For me, this case has been a struggle. On the one hand, Judge White is a fine man and the President is due a fair amount of deference. On the other hand, we are faced with the extremely unusual case in which both home State Senators, after having reviewed the record, are opposing this nomination on the floor. Of course, had the President worked more closely with the two Senators from Missouri and then nominated a less problematic candidate, we would not be in this predicament. But the President did not. When a nominee has a record of supporting controversial legal positions that call into question his, or her, respect for the rule of law, it takes longer to gain the consensus necessary to move the nominee. When the President has not adequately consulted with the Senate, it takes longer to gain the consensus necessary to move the nominee. And when both home State Senators of a nominee oppose as nominee on the floor of the Senate, it is almost impossible to vote for the confirmation of that nominee. Regretfully, such is the case with Judge White. Judge White has written some controversial opinions, especially on death penalty cases that have caused some to question his commitment to upholding the rule of law. The President has not garnered broad support for Judge White. And both Senator Ashcroft and Senator Bond oppose this nomination. It would have been better for all parties concerned--the President, the Senate, the people of Missouri, and Judge White, had we been able to reach this decision earlier. But I cannot rewrite the past. After a painstaking review of the record and thorough consultation with the nominee's home State Senators, I deeply regret that I must vote against the nomination of Judge White. This is in no way a reflection of Judge White personally. He is a fine man. Instead, my decision is based on the very unusual circumstances in which the President has placed this body. I must defer to my colleagues from Missouri with respect to a nominee whose jurisdiction, if confirmed, would be wholly limited to that State. I call on the President to nominate another candidate for the Eastern District of Missouri. He should do so, however, only after properly consulting with both Missouri Senators and thus respecting the constitutional advice and consent duties that this body performs in confirming a nominee who will serve as a Federal judge for life.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that I be allowed to speak as in morning business for up to 10 minutes.

Mr. HATCH. Mr. President, I thank my colleague, and I apologize. I did not realize he had been standing here all this time.

Mr. HATCH

Mr. HATCH. Mr. President, it is a great pleasure for me to support the confirmation of a judicial candidate who is the epitome of good character, broad experience, and a judicious temperament. First, however, I think it appropriate that I spend a moment to acknowledge the minority for relenting in what I consider to have been an ill-conceived gambit to politicize the judicial confirmations process. My colleagues appear to have made history on September 21 by preventing the invocation of cloture for the first time ever on a district judge's nomination. This was--and still is--gravely disappointing to me. In a body whose best moments have been those in which statesmanship triumphs over partisanship, this unfortunate statistic does not make for a proud legacy. My colleagues, who were motivated by the legitimate goal of gaining votes on two particular nominees, pursued a short-term offensive which failed to accomplish their objective and risked long-term peril for the nation's judiciary. There now exists on the books a fresh precedent to filibuster judicial nominees with which either political party disagrees. I have always, and consistently, taken the position that the Senate must address the qualifications of a judicial nominee by a majority vote, and that the 41 votes necessary to defeat cloture are no substitute for the democratic and constitutional principles that underlie this body's majoritarian premise for confirmation to our Federal judiciary. But now the Senate is moving forward with the nomination of Ted Stewart. I think some of my colleagues realized they had erred in drawing lines in the sand, and that their position threatened to do lasting damage to the Senate's confirmation process, the integrity of the institution, and, of course, the judicial branch of Government. The record of the Judiciary Committee in processing nominees is a good one. I believe the Senate realized that the Committee will continue to hold hearings on those judicial nominees who are qualified, have appropriate judicial temperament, and who respect the rule of law. I had assured my colleagues of this before we reached this temporary impasse and I reiterate this commitment today. This is not a time for partisan declarations of victory, but I am pleased that my colleagues revisited their decision to hold up the nomination. We are proceeding with a vote on the merits on Ted Stewart's nomination, and we will then proceed upon an arranged schedule to vote on other nominees in precisely the way that was proposed prior to the filibuster vote. Ultimately, it is my hope for us, as an institution, that instead of signaling a trend, the last 2 weeks will instead look more like an aberration that was quickly corrected. I look forward to moving ahead to perform our constitutional obligation of providing advice and consent to the President's judicial nominees. And now, I would like to turn our attention to the merits of Ted Stewart's nomination. I have known Ted Stewart for many years. I have long respected his integrity, his commitment to public service, and his judgment. And I am pleased that President Clinton saw fit to nominate this fine man for a seat on the United States District Court for the District of Utah. Mr. Stewart received his law degree from the University of Utah School of Law and his undergraduate degree from Utah State University. He worked as a practicing lawyer in Salt Lake City for 6 years. And he served as trial counsel with the Judge Advocate General in the Utah National Guard. In 1981, Mr. Stewart came to Washington to work with Congressman Jim Hansen. His practical legal experience served him well on Capitol Hill, where he was intimately involved in the drafting of legislation. Mr. Stewart's outstanding record in private practice and in the Legislative Branch earned him an appointment to the Utah Public Service Commission in 1985. For 7 years, he served in a quasi-judicial capacity on the Commission, conducting hearings, receiving evidence, and rendering decisions with findings of fact and conclusions of law. Mr. Stewart then brought his experience as a practicing lawyer, as a legislative aide, and as a quasi-judicial officer, to the executive branch in State government. Beginning in 1992, he served as Executive Director of the Utah Departments of Commerce and Natural Resources. And since 1998, Mr. Stewart has served as the chief of staff of Governor Mike Leavitt. Throughout Mr. Stewart's career, in private practice, in the legislative branch, in the executive branch, and as a quasi-judicial officer, he has earned the respect of those who have worked for him, those who have worked with him, and those who were affected by his decisions. And a large number of people from all walks of life and both sides of the political aisle have written letters supporting Mr. Stewart's nomination. James Jenkins, former President of the Utah State Bar, wrote, ``Ted's reputation for good character and industry and his temperament of fairness, objectivity, courtesy, and patience [are] without blemish.'' Utah State Senator, Mike Dmitrich, one of many Democrats supporting this nomination, wrote, ``[Mr. Stewart] has always been fair and deliberate and shown the moderation and thoughtfulness that the judiciary requires.'' I understand that the American Bar Association has concluded that Ted Stewart meets the qualifications for appointment to the federal district court. This sentiment is strongly shared by many in Utah, including the recent president of the Utah State Bar. For these reasons, Mr. Stewart was approved for confirmation to the bench by an overwhelming majority vote of the Judiciary Committee. To those who contend Mr. Stewart has taken so-called anti- environmental positions, I say: look more carefully at his record. Mr. Stewart was the director of Utah's Department of Natural Resources for 5 years, and the fact is that his whole record has earned the respect and support of many local environmental groups. Indeed, for his actions in protecting reserve water rights in Zion National Park, Mr. Stewart was enthusiastically praised by this administration's Secretary of the Interior. Consider the encomiums from the following persons hailing from Utah's environmental community: R.G. Valentine, of the Utah Wetlands Foundation, wrote, ``Mr. Stewart's judgment and judicial evaluation of any project or issue has been one of unbiased and balanced results.'' Don Peay, of the conservation group sportsmen for Fish and Wildlife, wrote, ``I have nothing but respect for a man who is honest, fair, considerate, and extremely capable.'' Indeed, far from criticism, Mr. Stewart deserves praise for his major accomplishments in protecting the environment. Ultimately, the legion of letters and testaments in support of Mr. Stewart's nomination reflects the balanced and fair judgment that he has exhibited over his long and distinguished career. Those who know Ted Stewart know he will continue to serve the public well. On a final note, Ted Stewart is needed in Utah. The seat he will be taking has been vacant since 1997. So I am deeply gratified that the Senate is now considering Mr. Stewart for confirmation. I am grateful to my colleagues on both sides of the aisle who helped get this up and resolve what really was a very serious and I think dangerous problem for the Senate as a whole and for the judiciary in particular. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent to modify amendment No. 2254, which I filed earlier today, to conform to the previous unanimous consent agreement as it relates to aviation matters. I send the modification to the desk.

Mr. HATCH

Mr. HATCH. Mr. President, it is a great pleasure for me to support--on the Senate floor--the confirmation of a judicial candidate who is the epitome of good character, broad experience, and a judicious temperament. First, however, I think it appropriate that I spend a moment to acknowledge the minority for relenting in what I consider to have been an ill-conceived gambit to politicize the judicial confirmations process. My colleagues appear to have made history on September 21 by preventing the invocation of cloture for the first time ever on a district judge's nomination. This was--and still is--gravely disappointing to me. In a body whose best moments have been those in which statesmanship triumphs over partisanship, this unfortunate statistic does not make for a proud legacy. My colleagues--who were motivated by the legitimate goal of gaining votes on two particular nominees--pursued a short term offensive which failed to accomplish their objective and risked long-term peril for the nation's judiciary. There now exists on the books a fresh precedent to filibuster judicial nominees whose nominations either political party disagrees with. I have always, and consistently, taken the position that the Senate must address the qualifications of a judicial nominee by a majority vote, and that the 41 votes necessary to defeat cloture are no substitute for the democratic and constitutional principles that underlie this body's majoritarian premise for confirmation to our federal judiciary. But now the Senate is moving forward with the nomination of Ted Stewart. I think some of my colleagues realized they had erred in drawing lines in the sand, and that their position threatened to do lasting damage to the Senate's confirmation process, the integrity of the institution, and the judicial branch. The record of the Judiciary Committee in processing nominees is a good one. I believe the Senate realized that the Committee will continue to hold hearings on those judicial nominees who are qualified, have appropriate judicial temperament, and who respect the rule of law. I had assured my colleagues of this before we reached this temporary impasse and I reiterate this commitment today. This is not a time for partisan declarations of victory, but I am pleased that my colleagues revisited their decision to hold up the nomination. We are proceeding with a vote on the merits of Ted Stewart's nomination, and we will then proceed upon an arranged schedule to vote on other nominees in precisely the way that was proposed prior to the filibuster vote. Ultimately, it is my hope for us, as an institution, that instead of signaling a trend, the last two weeks will instead look more like an aberration that was quickly corrected. I look forward to moving ahead to perform our constitutional obligation of providing advice and consent to the President's judicial nominees. And now, I would like to turn our attention to the merits of Ted Stewart's nomination. I have known Ted Stewart for many years. I have long respected his integrity, his commitment to public service, and his judgment. And I am pleased that President Clinton saw fit to nominate this fine man for a seat on the United States District Court for the District of Utah. Mr. Stewart received his law degree from the University of Utah School of Law and his undergraduate degree from Utah State University. He worked as a practicing lawyer in Salt Lake City for six years. And he served as trial counsel with the Judge Advocate General in the Utah National Guard. In 1981, Mr. Stewart came to Washington to work with Congressman Jim Hansen. His practical legal experience served him well on Capitol Hill, where he was intimately involved in the drafting of legislation. Mr. Stewart's outstanding record in private practice and in the legislative branch earned him an appointment to the Utah Public Service Commission in 1985. For 7 years, he served in a quasi-judicial capacity on the commission, conducting hearings, receiving evidence, and rendering decisions with findings of fact and conclusions of law. Mr. Stewart then brought his experience as a practicing lawyer, as a legislative aide, and as a quasi-judicial officer, to the executive branch in state government. Beginning in 1992, he served as Executive Director of the Utah Departments of Commerce and Natural Resources. And since 1998, Mr. Stewart has served as the chief of staff of Governor Mike Leavitt. Throughout Mr. Stewart's career, in private practice, in the legislative branch, in the executive branch and as a quasi-judicial officer, he has earned the respect of those who have worked for him, those who have worked with him, and those who were affected by his decisions. And a large number of people from all walks of life and both sides of the political aisle have written letters supporting Mr. Stewart's nomination. James Jenkins, former president of the Utah State Bar, wrote, ``Ted's reputation for good character and industry and his temperament of fairness, objectivity, courtesy, and patience [are] without blemish.'' Utah State Senator, Mike Dmitrich, one of many Democrats supporting this nomination, wrote, ``[Mr. Stewart] has always been fair and deliberate and shown the moderation and thoughtfulness that the judiciary requires.'' And I understand that the American Bar Association has concluded that Ted Stewart meets the qualifications for appointment to the federal district court. This sentiment is strongly shared by many in Utah, including the recent president of the Utah State Bar. For these reasons, Mr. Stewart was approved for confirmation to the bench by an overwhelming majority vote of the Judiciary Committee. To those who would contend Mr. Stewart has taken so-called anti- environmental positions, I say: look more carefully at his record. Mr. Stewart was the director of Utah's Department of Natural Resources for 5 years, and the fact is that his whole record has earned the respect and support of many local environmental groups. Indeed, for his actions in protecting reserve water rights in Zion National Park, Mr. Stewart was enthusiastically praised by this administration's Secretary of the Interior. And consider the encomiums from the following persons hailing from Utah's environmental community: R.G. Valentine, of the Utah Wetlands Foundation, wrote, ``Mr. Stewart's judgment and judicial evaluation of any project or issue has been one of unbiased and balanced results.'' And Don Peay, of the conservation group Sportsmen for Fish and Wildlife, wrote, ``I have nothing but respect for a man who is honest, fair, considerate, and extremely capable.'' Indeed, far from criticism, Mr. Stewart deserves praise for his major accomplishments in protecting the environment. Ultimately, the legion of letters and testaments in support of Mr. Stewart's nomination reflects the balanced and fair judgment that he has exhibited over his long and distinguished career. Those who know Ted Stewart know he will continue to serve the public well. On a final note, Ted Stewart is needed in Utah. The seat he will be taking has been vacant since 1997. So, I am deeply gratified that the Senate is now considering Mr. Stewart for confirmation.

Mr. HATCH

Mr. HATCH. 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 commend the Senator from Arkansas for his amendment. I have followed the activities of the NLRB for many years--since I came to the Senate, in fact. It is certainly not clear to me that this agency needs a $25 million increase over last year's level-- particularly when the subcommittee was forced to be so frugal with a number of other high priority programs. I support the reallocation of these funds to the Consolidated Health Services account for the Community Health Centers. We have long worried about access to primary health care for low-income families. This amendment is a way that we can provide such care for 83,000 more Americans. The Senator from Iowa said that he was told the association representing community health centers did not request this amendment. I cam appreciate the rationale of the association. They, of course, recognize the hard work done by the subcommittee in putting together this bill and wish to support that by taking a neutral position on the Hutchinson amendment. However, let's put the amendment in perspective. The NLRB is getting a $25 million increase--an unprecedented increase--over 10 percent. There has been no justification offered for this increase. The caseload has consistently declined over the decade. Now, the appropriations committee has provided an increase for the community health centers of $99.3 million. This is badly needed, comparison with the NLRB notwithstanding. The additional funds provided by the Hutchinson amendment would permit health centers to serve 83,000 more people. That is the most important point, to me. Mr. President, let's compare: $25 million for 122 more federal employees and new computers versus health care for 83,000 Americans. This is a no brainer for me. I hope it is for my colleagues as well. I urge Senators to support the Hutchinson amendment.

Mr. HATCH

Mr. HATCH. Mr. President, on June 9, 1999, Judge Giles S. Rich passed away at age 95, still serving on the U.S. Court of Appeals for the Federal Circuit after nearly 43 years as a Federal judge and as the oldest active Federal judge in U.S. history. Today, the Federal court will hold a memorial service in his honor. I rise today to add my voice to those of the participants in that memorial service in paying tribute to this man who contributed as much, if not more, than anyone else in this century to the development of U.S. patent policy and the promotion of American innovation. Judge Rich was heard to say, ``You see, as I go along, practically everything I did was what I didn't intend to do.'' I believe that statement to be true in large part because Judge Rich was a man who didn't follow success, but was instead followed by success. Bright people and prestigious positions were drawn to him because of who he was. Judge Rich was educated at Harvard College, from which he graduated in 1926. He went on to receive his law degree from Columbia Law School in 1929. Since Columbia University didn't have any patent law classes, Judge Rich decided to teach himself patent law, through an arrangement with a professor that allowed him to receive credit for a thorough and lengthy paper on patents. He in turn shared his knowledge and intellect with students as a lecturer on patent law at Columbia University from 1942 until 1956, as an adjunct professor at Georgetown University Law Center from 1963 to 1969, and as a lecturer on patent and copyright law as part of the Federal Judicial Center's training program for newly appointed judges from the program's inception in 1965 until 1971. As a dedicated lawyer, professor, and judge, Judge Rich played a significant role in the development and evolution of intellectual property law in the United States. He practiced law in a private practice from 1929 to 1956, specializing in patent and trademark law. He became a member of the New York Bar in 1929 and was certified by the U.S. Patent Office in 1934. As a member of a two-man drafting committee, he was one of the two people principally responsible for drafting the 1952 Patent Act, which served as the first codification of all our nations' federal patent laws and which has served this country well for half a decade without significant revision. In 1992, Judge Rich earned special recognition from President Bush for his contributions to the patent code of our nation's patent system. Judge Rich served in private practice until 1956, when President Eisenhower appointed him as an associate judge for the Court of Customs and Patent Appeals (CCPA). Then, in 1982, he was appointed as a Circuit Judge for the CCPA's successor court, the U.S. Court of Appeals for the Federal Circuit, which holds exclusive jurisdiction for patent appeals. From his seat on the Federal Circuit, Judge Rich authored landmark decisions clarifying some of the most difficult concepts in patent law, including decisions that have been hailed as laying the foundation for the modern biotechnology industry and important cases dealing with the complex area of software and computer-related inventions. Judge Rich was the distinguished recipient of a host of awards during his career, ranging from the Jefferson Medal of New Jersey Patent Law Association in 1955 to the Oldest Active Judge in U.S. History Recognized by Chief Justices in 1997. He was the inaugural recipient of the Pesquale J. Federico Memorial Award for outstanding service to the patent and trademark systems, awarded by the Patent and Trademark Office Society. He was awarded the Charles F. Kettering Award and Distinguished Government Service Award from the George Washington University. He was awarded the Harlan Fisk Stone Medal from Columbia University. There is a law school moot court competition sponsored by the American Intellectual Property Law Association--now in its 28th year--named in his honor. There is even an Inn of Court named in his honor. He has been awarded recognition from intellectual property law associations in cities across the country and, in 1997, was awarded the Centennial Visionary Award by the American Intellectual Property Law Association upon the commemoration of its 100th anniversary. He holds honorary Doctor of Law degrees from the George Washington University, John Marshall Law School, and George Mason University School of Law. And these are but a few of the many accolades Judge Rich has received throughout life. As with all judges, many of those who followed Judge Rich's decisions admired and agreed with his legal theories, while others disagreed. But all respected his intelligence, strength, and ambition. He wrote in the history of the Court of Customs and Patent Appeals that ``[c]ourts are people and little else. Law evolves from their manners of thinking at particular times and from the interactions of people thinking.'' Judge Giles S. Rich, as a person, helped transform our federal courts. He contributed to a body of statutory and judicial precedent that is unparalleled throughout much of our nation's history. Chief Judge Archer said of Judge Rich in 1994 that Judge Rich was ``open-minded, flexible and respectful of the views of his colleagues. He [brought] to the art of judging the temperament and knowledge that are rarely equaled. It sets a high standard for all of us.'' And as John Reilly stated in eulogizing Judge Rich, he was ``a quiet jurist and gentle man who by his tireless scholarship and faithful devotion to the patent law, turned our American century into an inventive, productive powerhouse, to the benefit of us all.'' Judge Rich began his career as an intellectual property law practitioner and scholar at a time when radio broadcasts were the latest emerging technology, yet he lived to set much of the patent policy that formed the foundation for the digital revolution. For these contributions to American jurisprudence and our patent system, his presence will always be remembered by legislators, lawyers, and judges who reflect on the law that was made by the feisty judge that wasn't going to stop hearing cases until something forced him to do so. Judge Rich, at one time, told an attentive audience of a verse his mother would recite, ``The wise old owl lie in an oak. The more he saw, the less he spoke; the less the spoke the more he heard. Why can't we be more like that old bird?'' The intellectual property community and all of us can learn a great deal from the ``old bird,'' Judge Rich. John Witherspoon, one of Judge Rich's former law clerks, once said that, ``Giles Rich is a Master teacher--by which I mean, he doesn't teach at all; those around him simply learn.'' Many will miss his presence and the experiences it brought. I send my condolences out to his family, and my gratitude to the man who worked so hard to contribute to American jurisprudence and the preservation of America's status as a nation of inventors.

Mr. HATCH

Mr. HATCH. Mr. President, if we are going to solve this problem of tobacco, we need to face the music in Congress. We need to pass legislation that will solve it. One reason why the Hatch-Feinstein legislation would have worked is because we believe as high as it was, at $429 billion, the tobacco companies reluctantly would have had to agree with it. Therefore, we could have imposed the free speech articles on them that would have prohibited them from advertising, while at the same time causing them to have to advertise in a way that would help our youth to understand the evils of tobacco. That, we believed, should be done. I still believe that should be done. It was so fouled up in the last Congress that we were unable to get that done. So I am concerned about the misuse of the law, to be able to punish any industry that whoever is presiding in the Federal Government decides they are against. I think it is a travesty of justice, and even though I don't like tobacco and I have never used the products, and even though I think something certainly needs to be done in this area, you don't do it by abusing the process of law, which I think this administration has repeatedly done, time after time after time. I think, as history views what has gone on in this administration, it is going to have to come to the conclusion that this is an administration that has not been dedicated to the rule of law, while it has been triumphantly pushing the rule of law upon other nations, hoping they could have something like we have in this country. The fact of the matter is, it is hypocrisy, pure and simple. I am very concerned that if we allow our Justice Department to continue to act in this fashion, we are going to reap the whirlwind in this country and there will be no business that would be safe from the all mighty power of the Federal Government. There is one thing worse than big tobacco and that is an unrestrained big government. That is what this lawsuit is all about. It is a voracious desire to get money in an industry that should be gotten, but in a reasonably legal way, basically through legislation. I hope everybody will look at this lawsuit for what it is. I hope the courts will dismiss it so we can get about legislating and doing what we should to resolve the problems about tobacco use and misuse in our country. I yield the floor. Mr. CRAIG addressed the Chair.

Mr. HATCH. Mr. President, never in my years of service to the people of Utah and this country have I witnessed an administration more inclined to twist, deform, or ignore, the rule of law than the Clinton administration. The past 7 years are replete with exploits of legal manipulation. Indeed, the legacy of the administration may prove to be that its most significant exploits--infamous or otherwise--were accomplished by warping the law for blatant political purposes. Here are just a few of the most notorious examples: Attorney General Reno both misapplied and ignored the Independent Counsel Act in order to prevent the appointment of an independent counsel in the campaign finance investigation; the 1996 election fundraising scandal where soft money prohibitions were ignored and foreign donations were illegally and eagerly accepted; fundraising from the White House--it was deplorable the Escalante Proclamation, where a huge chunk of Southern Utah was effectively annexed by the Federal government without any prior consultation with Utah officials, to my knowledge--certainly not any elected officials; the misuse of FBI files by the White House--the myriad proclamations of Executive Orders as a vehicle to skirt the authority of Congress; and just to mention one more, the violation of the Vacancies Act to hold in office individuals lacking Senate confirmation. This list does not even include the myriad events, dissemblance, and contempt for the law and our courts, which brought us the impeachment. Given this record, I must confess that I wasn't shocked to learn that the Department of Justice may have misled Congress in sworn testimony and then filed suit against the tobacco industry. Last Wednesday, the Department of Justice filed in Federal district court a multibillion dollar suit against the tobacco industry seeking recoupment of losses to Federal health care programs. After reviewing the 131-page complaint, I have serious reservations concerning several key counts in the complaint. Moreover, I am skeptical of the entire lawsuit. It is well known around here that I am no friend of tobacco use, nor an apologist for the tobacco industry. Indeed, I have never used tobacco products in my life and am opposed to tobacco use. I never inhaled or chewed tobacco. Along with my cosponsor, Senator Feinstein, I worked hard last Congress to pass legislation that would have gone a long way in helping Americans to kick the habit and in reducing teen smoking. The legislation required the tobacco companies to pay over $400 billion to settle existing lawsuits--$429 billion, to be more accurate. In return for the settlement of these lawsuits, the companies would have stopped targeting children and would have funded smoking cessation efforts. While this measure has yet to pass, I strongly believe that the fairest and most effective solution to the use of tobacco is omnibus legislation such as the Hatch-Feinstein bill rather than relying upon legally dubious lawsuits. Litigation cannot effectively deal with important public policy problems, such as what measures the industry must take to reduce youth smoking or what effect will rising prices have on the black market for cigarettes. Given my skepticism about the administration's fidelity to the rule of law, I have several questions concerning the Federal lawsuit. The first question I have is, What is the administration's motivation here? It has been reported that many attorneys at the Department of Justice opposed filing of a lawsuit because the Federal Government did not possess a valid cause of action or claim against the tobacco companies. Indeed, Attorney General Reno, at the April 30, 1997, hearing before the Judiciary Committee, testified that no Federal cause of action existed for both Federal Medicare and Medicaid claims. I disagree with the assertion made by David Ogden, Acting Assistant Attorney General for the Civil Division and the current nominee for that post, that Attorney General Reno was referring only to State actions. Ms. Reno's contention that no Federal cause of action existed was made clearly in response to a question by Senator Kennedy, who asked whether the Federal Government could recoup both Medicare and Medicaid payments. It was only after President Clinton, in his State of the Union Address in January, called for a suit against the tobacco industry that the Department of Justice changed its tune and, presto, announced that a legitimate cause of action may exist. I have been criticized in the past for saying that the politically minded and partisan White House, and not the Attorney General, is in reality running the Department of Justice. In the case of the Federal tobacco litigation, it appears once more that the White House is directing the activities of the Department of Justice for political ends. This lawsuit is a horrible precedent that, if it continues, will erode the liberty of the American people. Here again, the rule of law is apparently being replaced by the rule of the politically correct and expedient. I urge my colleagues to read the fine story appearing in last Friday's Wall Street Journal entitled ``Justice Reverses: Lobbying Effort Wins Turnabout On Tobacco Suit.'' This story chronicled the change in the Department's position concerning the viability of the Federal tobacco suit. The story demonstrated that the Department's attorneys were skeptical about a Federal lawsuit. It also established that the Department brought suit only after pressure from the White House and outside lobbyists, who apparently were paid by an outside consultant for their efforts to help convince the Department to change its viewpoints. I ask unanimous consent to have this article printed in the Record.

Mr. HATCH. Mr. President, today's tobacco lawsuit may be tomorrow's beef or dairy industry lawsuit. That is why about 100 trade associations, private business companies, policy organizations, as well as several Governors, have voiced their opposition to this Federal tobacco suit. They understand, as do I, that big government can be as harmful as big tobacco. I ask unanimous consent that a list of these individuals and organizations be printed in the Record.

Mr. HATCH. Another question I have is, Why wasn't Congress consulted? Months prior to the filing of the lawsuit, I had been attempting to ascertain on what legal theories the Department may base a lawsuit against the tobacco companies, but the Department has refused to share the information, even though the Department has asked for an additional $20 million to finance the suit. I assured them that the American people and the Congress will want to know what they are paying for. Congress is not in the habit of writing blank checks, and, in the absence of a straight answer, Congress appropriately refused the additional monies. Notwithstanding the clear position of Congress, I learned of the filing of the suit from the newspapers. This is particularly galling since the Acting Assistant Attorney General for the Civil Division and the nominee for that office, David Ogden, in written responses dated September 2 to my questions concerning the possible suit against the tobacco industry, wrote that the Department had not even decided whether to file the suit or on what legal theories to pursue any projected litigation. He stated at that time: The Department is currently in active preparation for this litigation, and we are in the process of making decisions on whether it will be filed and, if so, based on what legal theories. Now, less than 3 weeks later, the full-fledged suit has been filed. I have yet another question. Does the Department of Justice have any chance of prevailing on the merits? The Department seeks to ``recoup'' the cost of medical care for treatment of tobacco-related illnesses for those on Medicaid, but the injury claimed by the Federal Government may be questionable. The nonpartisan Congressional Research Service recently issued a study which concluded that tobacco use imposes no net cost to the Federal Government. Indeed, the Federal Government receives approximately $6 billion a year in tobacco tax revenue. Moreover, it is simply absurd for the Government to seek recoupment when it has been a vigorous partner with the tobacco industry in promoting tobacco use. From the late 1960s to the late 1970s, the Federal Government worked hand in hand with the tobacco industry to develop so-called ``safe'' cigarettes. Until 1974, the Government provided free cigarettes in C rations to servicemen. Furthermore, cigarettes continue to be sold at substantially discounted rates at military post exchanges. In 1997, the Department of Veterans Affairs blocked claims by veterans for tobacco-related illnesses, contending that these individuals should not be covered because they were responsible for their individual choices and the health problems that resulted from those choices. Of course, the Federal Government yearly subsidizes tobacco growing. Perhaps the public interest groups should sue the Federal Government, which authorized and fostered the growing of tobacco and the manufacture and sale of tobacco products. Could one not argue that the Government was at least a joint tort-feasor under these circumstances? Furthermore, it is preposterous for the Federal Government now to claim that it did not know of the risks of tobacco use. Since 1964, the Government has issued Surgeon General reports that warned consumers of the dangers of tobacco use. Since 1966, the Government has required warning labels on cigarette packs. Indeed, everybody not on Mars for the past few decades has known that using tobacco can be harmful. Besides this hypocrisy and the difficulty in seeing how the Federal Government has been harmed, I question the veracity of at least two main counts of the complaint. These involve alleged violations of the Medical Care Recovery Act, known as MCRA, and the Medical Secondary Payer Provisions, or MSP. The Department of Justice contends that these two statutes create an independent cause of action for the Federal Government to recover Medicaid benefits for tobacco-related illnesses. Let me point out that the U.S. Supreme Court, in U.S. v. Standard Oil, in 1947, held that, in the absence of a statute, the Federal Government does not possess the independent right of action to recover the medical costs of servicemen. It was in response to Standard Oil that Congress passed the MCRA in 1962 and MSP in 1984. But these changes to Federal law were limited and discrete in scope. For instance, MCRA allows the Federal Government to independently sue to recover the cost of medical treatment given to military service personnel, veterans suffering from disabilities unrelated to service, and other government workers who received medical help but were injured by negligent third parties. It does not apply to all Medicaid patients nor does it appear to allow the aggregation of all the individual claims in one massive lawsuit, which is what the Department of Justice has done here. Besides aggregating such claims, liability could be proven only through statistics, but I believe a trial based on statistics would be unconstitutional. Furthermore, MSP allows only for suits against insurance companies providing liability insurance to tort-feasors, but not against the tort-feasors themselves. The MSP cause of action does not apply because the tobacco companies are in no way acting as insurers of their products. I am still studying the other causes-of-action sounding in violations of the Federal Racketeer Influenced and Corrupt Organization law, better known as RICO, and State civil fraud statutes. But as a preliminary matter, I have serious doubts about their legal viability. RICO, for instance, was enacted to deal with organized crime syndicates. Here we are talking about a legal product, a product that has not only been approved by the Federal Government but which has been subsidized by the Federal Government. RICO does not apply to lawful activities, such as the manufacture and sale of cigarettes, no matter how obnoxious those products may be. For RICO and the State consumer statutes to apply here, the Department must demonstrate that the tobacco industry criminally and fraudulently marketed and sold their products. This is a difficult task that in almost every case has not been successful in a court of law because the harmful effects of tobacco products were well known. Indeed, the day the Department filed a civil suit, it announced that it was terminating the criminal investigation of the tobacco companies and tobacco executives for lack of viable evidence. I believe these counts of the complaint were added to force the tobacco companies to settle. A successful RICO suit would force the tobacco companies to disgorge all their so-called illegal profits of hundreds of billions of dollars. This would bankrupt the tobacco industry. The Clinton White House is gambling that the tobacco companies will settle and not take the risk of corporate capital punishment in prohibition of all tobacco use. When all is said and done, it would seem that legislation is what is truly needed for a direct recovery suit against the tobacco companies. In short, it seems that this suit lacks merit. This is not like the State suits against the tobacco companies. I supported the June 20, 1997, global settlement of those suits and conducted a half dozen or so hearings in an attempt to have Congress set a national tobacco policy. The difference is that the Federal suit appears to have no legal basis. Let me ask rhetorical questions: What is the big deal? Why should anybody care about another suit filed against the big, bad tobacco companies? I will tell you why. It is for the reasons I stated in this speech. No administration should be able to circumvent the Constitution and Congress' sole authority to raise and spend revenue for the general welfare by suing for billions of dollars and then spending the money without congressional appropriation. If there is no legitimate lawsuit, the action by the Department of Justice would violate separation of powers. That doctrine is a cornerstone of our Constitution's guarantee of liberty. Simply put, litigation should not replace legislation as the means to effect public policy in a democracy. Granting the Federal Government the unfettered ability to sue any industry which happens to fall into disfavor in order to effectuate a social goal such as reduction in tobacco-related illnesses is a mistake. It would, in essence, allow the executive branch to bypass Congress and the law and set unilaterally our Nation's tobacco policy. The way to solve the youth tobacco problem and other social problems is for Congress to legislate in an orderly and coherent manner. Litigation will produce ad hoc and incoherent results. Litigation cannot determine, for instance, whether the FDA should regulate tobacco. There is a disturbing trend in misusing the litigation system for what appears to be social ends. Besides tobacco, Government-sponsored lawsuits have been filed against gun manufacturers and paint manufacturers. It was reported that suits are being considered to be filed against automobile manufacturers, the alcoholic beverage industry, manufacturers of pharmaceuticals and chemicals, Internet providers, the entertainment industry, the dairy industry, and even fast food restaurants are being discussed as potential targets. Boy, it looks as if the trial lawyers of America got control of the Justice Department. They certainly have control of this administration and its projected successors in either Al Gore or Bill Bradley. Let me quote the distinguished legal scholar and former jurist, Robert Bork, who cogently discerned, in an article entitled ``Tobacco Suit is the Latest Abuse of the Rule of Law,'' published in a September 23 edition of the Wall Street Journal: The Justice Department's complaint is only the most recent, and it will be by no means the last, effort to use litigation to bludgeon private firms in order to accommodate a prohibition that government could not muster the political support to legislate. Gun manufacturers are beginning to face the same problem. Why not sue oil companies, whose gasoline leads to traffic deaths, or fast-food chains, whose products contribute to heart disease? The only difference is political. If the product is sufficiently unpopular with the politically correct, massive public propaganda efforts will ultimately make lawsuits possible. . . . Law has been warped for political purposes repeatedly, and never more so than in this Administration. Is there no judge who shall call this case what it is--an intellectual sham and a misuse of the courts to accomplish through litigation what cannot be won through legislation? I ask unanimous consent that the full text of the Bork article be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I thank my colleague for his kindness.

Mr. HATCH

Mr. HATCH. Absolutely. The VA should certify homes as it has always done. Homes that are seriously deficient should be decertified. Technical assistance should be offered to homes having difficulty. But, I would hope that proper quality control by the VA could be done in such a way so as not to unnecessarily disrupt the flow of payments to the home. Does the distinguished Senator from Missouri agree that a state veterans home cannot be effectively managed if the federal funds that are promised come in a haphazard manner?

Mr. HATCH. Yes. I agree that withholding per diem can be an appropriate action if the VA has previously notified the state veterans home that there are specific problems. The homes should have an opportunity to correct those problems so as not to miss a scheduled payment. I also believe that if a state veterans home is recalcitrant in making improvements where necessary, either for substantive patient care or for administrative purposes, the VA should decertify the home. If violations are serious enough to withhold payments for a prolonged period of time, they are serious enough to warrant decertification. I hope, however, that my colleagues will agree that state veterans homes cannot be effectively managed if the federal government is so unreliable in making these per diem payments. In the absence of any substantive quality issues, state veterans homes should be able to expect prompt payment. It is a promise we have made, and it is necessary that we keep it to maintain consistent and high quality of care for our veterans. That, I believe, is the goal we all share. Mr. President, in deference to the members of the Senate Veterans' Affairs Committee, I will not offer my amendment to require the Veterans' Administration to pay the per diem it owes to fully certified state veterans homes. However, I want the record to show that this amendment is cosponsored by Senator Crapo, Senator Snowe, Senator Collins, and Senator Craig. It has the support of the National Association of State Veterans Homes and the American Legion. Mr. President, for too long, state veterans homes have been getting that age-old promise from the federal government that the check is in the mail. In my home state of Utah, the Utah State Veterans Nursing Home has experienced tremendous difficulties in receiving per diem payments from the Department of Veterans Affairs. The Utah veterans home was certified in January 1999. But it did not see a single payment from the Department of Veterans Affairs until June 1999--six months. Now, I ask my colleagues: what business can go without payment for six months without having to cut corners or stiff its own creditors? How are these veterans homes supposed to provide quality care if they do not know from month to month what their operating budget will be? How are they going to pay their personnel, their food service providers, linen services, and so on. How are they going to pay for routine repairs on the plant? The VA simply has to find a way to get these payments out on time. In Utah's situation, the per diem payment for April and May came in late June. The payment for June still has not been received. The July and August payments were received in September. Let me be clear about this point. The Department of Veterans Affairs was not withholding those funds because of quality of care or compliance problems in the Utah veterans' nursing home or because of the lack of funds. On the contrary, the VA was forthright in saying that the paperwork got lost on somebody's desk. Now, I can understand that, and I certainly want to say that I appreciate getting an honest explanation for this. I have lost things, and I am sure all Senators have lost things from time to time. My problem, however, is that this clearly was not a one-time occurrence. These late payments have become the rule not the exception, and the Utah veterans home has not been the only victim. I understand that veterans nursing homes all over the country have had to suffer these late per diem payments and that veterans homes in Oregon and Maine, for example, have had similar difficulties. As a veterans nursing home operator in Maine put it, ``It is something that we have learned to live with.'' Mr. President, maintaining a quality nursing care facility is a difficult enough job as it is without the federal government imposing the additional burden of not getting the funds out to these state veterans homes on time. Our veterans homes should not have to ``learn to live with it.'' If the federal government has taken on this responsibility, then it needs to deliver. If the VA cannot fulfill this obligation under existing law, then it should report to the Veterans' Affairs Committees of the Senate and House and seek assistance to do so. These state veterans homes are simply too critical a component in our effort to care for America's elderly veterans. By giving these state veterans homes short shrift, we give our veterans short shrift. I know that this is not what the VA intends. It has been argued that the VA needs the authority to withhold per diem payments as leverage for corrective action taken by homes that may have compliance problems. Mr. President, I absolutely agree that the VA should enforce the applicable quality standards for these veterans homes. I modified my amendment to address this concern. Deficiencies that affect patient care and safety should be promptly corrected, and my amendment allows the VA to withhold per diem payments is such deficiencies have been identified and the home is notified about them in writing prior to the due date of the expected payment. This would provide the home the opportunity to act on the deficiencies so as not to miss a payment. Additionally, I believe that serious and ongoing deficiencies warrant decertification. No state veterans home that is not certified should receive payments. But, Mr. President, neither we here in the Senate, nor the VA, should forget that the effective management of these veterans facilities needs reliable funding. We cannot expect the best quality of care for our veterans if the state veterans home is receiving only sporadic per diem payments. The haphazard manner in which the VA has made per diem payments has itself become a cause for concern about quality in these homes. I trust that the VA, given the impetus of this amendment, will take steps to improve this payment process and get the per diem payments out on time. Moreover, I urge my colleagues on the Veterans' Affairs' Committee to take a serious look at this issue. upper midwest aerospace consortium

Mr. HATCH. Mr. President, I appreciate the leadership of Senator Bond and Senator Mikulski on this appropriations bill. I know that this has been a very difficult process, and I appreciate their efforts. I would like to bring to the attention of the United States Senate a situation that is of great concern to me: long-term care for our veterans. In my state of Utah, we have a nursing home that is owned and operated by the State of Utah. This nursing home was certified by the Department of Veterans' Affairs and received monthly per diem payments, which comprise nearly half of the nursing home's budget. Although the nursing home was certified in January, it did not see a single per diem payment from the Department of Veterans' Affairs until June. The payment for February and March also arrived in June; payment for April and May came in late June. The June payment was supposedly sent by the Department of Veterans' Affairs, but it still has not been received. Payment of per diem for July and August was received in September. I understand that other veterans homes around the country have similarly suffered from delayed and sporadic per diem payments. To me, this is a fairly clear picture that the administration of per diem payments needs to be improved. I cannot believe that each and every payment for nine months is being deliberately held up because the veterans home is guilty of some unnamed compliance problem. In fact, the VA itself has advised me that this is not the case at least with respect to the Utah veterans home. Let me be clear that I do not intend that deficient veterans homes are let off the hook. We expect accountability. I urge the VA not only to enforce applicable standards, but also to assist state veterans homes to meet these standards for care of our veterans. But, I hope that the VA will give attention to designing a better system of payments so that state veterans homes can more effectively manage their resources and, therefore, provide better and more consistent care for our veterans.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to introduce the Medicare Patient Access to Technology Act of 1999. I am pleased to be joined by the distinguished Assistant Majority Leader, Senator Nickles, and Senators Breaux, Grassley, Murkowski, and Bayh in introducing this legislation. While we all recognize that medical technologies and treatments are improving the lives of millions of Americans daily, gaining access to these innovations is becoming more difficult. Each day, new implantable medical devices are correcting or repairing failing organ systems in patients. People are receiving new tests that permit the diagnosis of diseases in their earliest stages without the use of surgery or other more complicated procedures. Tens of thousands of individuals owe their lives to small, powerful miniature devices that monitor and regulate vital physiological functions and allow patients to live more productive lives. The latest advances in pharmaceutical and biologics are not only extending the length of life, but significantly improving the quality of life for hundreds of millions of people. Lifesaving and life- enhancing innovations must be available to all Americans, and it is our duty to ensure that those patients who need them most, America's nearly 40 million Medicare beneficiaries, have access to them. As part of the Balanced Budget Act (BBA) of 1997, we authorized the Health Care Financing Administration (HCFA) to adjust periodically Medicare's coverage and payment systems to account for changes in technology, treatment, and medical care. Unfortunately, without Congressional input, there is no guarantee that these expedited procedures will take place. The Medicare Patient Access to Technology Act of 1999 has arisen out of growing evidence that without intervention, Medicare beneficiaries will be denied access to the most modernized treatments and innovations in health care. After medical technologies, devices, and drugs are approved by the Food and Drug Administration, they still must meet several critical HCFA requirements before they are available to Medicare beneficiaries. First, before technologies are approved by HCFA for reimbursement, they must be covered, that is fulfill the definitions of ``reasonable and necessary.'' Second, they must have an identifying procedure code. New device technologies receive this ``procedure code,'' a four or five digit identification number that allows health care providers to submit claims to payers. Finally, the technologies must be reimbursed through one of Medicare's payment systems. The problems arise because each of these levels is plagued by inefficiency, coding delays, and lack of data usage by HCFA. My legislation addresses these concerns in five specific ways. First, Medicare payment levels and payment categories will be adjusted at least annually to reflect changes in medical practice and technology. A recent Institute of Medicine study reported that most medical technologies have an average life span of 18 months with many modernizations occurring rapidly. These innovations must, therefore, be rapidly processed so that they are accessible to beneficiaries. While BBA 97 authorized HCFA to adjust payment systems ``periodically'' to account for changes in technology, there is little promise that this will occur in a systematic, timely and beneficial manner. My bill requires HCFA to review and revise payment categories and payment levels for all prospective payment systems (PPS) at least annually. These prospective payment systems include hospital inpatient and outpatient, physicians, ambulatory surgery facility services. It also calls for public input on the review process. Second, this legislation mandates that valid external sources of information be used to update payment categories if Medicare's data are limited in scope or, are not yet available. Traditionally, HCFA has only used its own data set, known as the Medicare Provider Analysis and Review (MEDPAR) data systems, to evaluate a given technology before assigning an appropriate code. The average waiting period for the assignment of a new code is 18 months or longer. Furthermore, HCFA refuses to consider partial year or externally generated data in its decision-making processes. My bill directs HCFA to use external sources of data on the cost, charges and use of medical technologies. This language allows HCFA to utilize high quality data from private insurers, manufacturers, suppliers, providers, and other sources. Third, my legislation will require that national procedure codes are updated more frequently to reduce delays in accessing new technologies. Currently, new products must have an identification code before they are eligible for appropriate reimbursement by Medicare. Assigning this code can take 18 months or longer because of the way HCFA has structured its calendar year. This legislation allows HCFA to accept applications quarterly, on a rolling basis, thereby allowing the processing of new technologies throughout the year instead of bundling them at one annual submission. Furthermore, the Medicare Patient Access to Technology Act will eliminate the HCFA requirement that new products be on the market for six months before they are eligible for a new code. This provision will ensure that new technologies are brought to Medicare beneficiaries more rapidly. Fourth, the bill guarantees that local procedure codes for medical technologies will continue to be used. HCFA has proposed to eliminate Common Procedure Coding System (HCPCS) Level III Local Codes beginning in 2000 and replace it with the Level II National Codes. This is potentially detrimental to new technologies that are often introduced into local, smaller health care systems before they are expanded into nationwide markets. Without the Level III Local Codes, new technologies must be placed into a ``miscellaneous'' code that is often rejected by payers thereby denying access of the technology to beneficiaries. The maintenance of the current system will ensure that technologies will be encoded at the earliest possible date and processed before moving to the national level. Finally, the legislation authorizes HCFA to create an Advisory Committee on Medicare Coding and Payment. As a result, when HCFA has to make coding and payment decisions, it will be prompt, permit public participation, and will guarantee Medicare beneficiaries access to the highest quality products and services. The panel would ensure that safe medical technologies are approved, covered, coded and paid by Medicare as expeditiously as possible. In addition to the above authorizations, the Medicare Patient Access to Technology Act proposes several refinements to the Administration's proposed outpatient prospective payment system (PPS). The legislation affects three changes to HCFA's implementation of the Balanced Budget Act (BBA) of 1997. The first change mandates HCFA to restructure the proposed ambulatory payment classification (APC) system to create groups of procedures that are more similar in cost and most closely related clinically. The current HCFA proposal would create unusual financial incentives that would clearly discourage the use of the most appropriate, cutting-edge technology. Furthermore by grouping very disparate technologies, hospitals will face serious underpayments for certain procedures. I believe that illogical categorization creates disincentives to use newer, but more expensive products and procedures that provide far superior patient care. The second change mandates that HCFA retain the current cost-based system for another four years to compile the cost studies and use data and conduct the analysis necessary to classify them in the appropriate APC. The development of these data sets are mandatory and without proper clarification. Therefore, these products could receive substantial underpayment, and, as a result, patient access to newer procedures and products could be limited. Third, the implantable medical technologies should be reimbursed under the new APCs along with other similar medical technologies. They should not be reimbursed through the durable medical technology fee schedule. By placing the implantables within the DME propective payment system, the fee schedule will lock implantables into defined categories that will limit their use and inhibit their access to seniors. By placing them into the proposed APCs with the other medical devices, they will be treated as other new, innovative medical technologies. Again, I am pleased to be joined by my Senate colleagues, Senators Nickles, Breaux, Grassley, Murkowski, and Bayh, in introducing this important piece of legislation. This bill supports both our Medicare beneficiaries and our technology, pharmaceutical, and biotechnical industries by continuing to promote life-enhancing innovations. I firmly believe that these significant improvements to our Medicare coding and payment systems will increase the access to modern medical innovation to Americans who need them most, our senior citizens. Mr. President, I urge my colleagues to join us in support of this important legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to introduce the Medicare Patient Access to Technology Act of 1999. I am pleased to be joined by the distinguished Assistant Majority Leader, Senator Nickles, and Senators Breaux, Grassley, Murkowski, and Bayh in introducing this legislation. While we all recognize that medical technologies and treatments are improving the lives of millions of Americans daily, gaining access to these innovations is becoming more difficult. Each day, new implantable medical devices are correcting or repairing failing organ systems in patients. People are receiving new tests that permit the diagnosis of diseases in their earliest stages without the use of surgery or other more complicated procedures. Tens of thousands of individuals owe their lives to small, powerful miniature devices that monitor and regulate vital physiological functions and allow patients to live more productive lives. The latest advances in pharmaceutical and biologics are not only extending the length of life, but significantly improving the quality of life for hundreds of millions of people. Lifesaving and life- enhancing innovations must be available to all Americans, and it is our duty to ensure that those patients who need them most, America's nearly 40 million Medicare beneficiaries, have access to them. As part of the Balanced Budget Act (BBA) of 1997, we authorized the Health Care Financing Administration (HCFA) to adjust periodically Medicare's coverage and payment systems to account for changes in technology, treatment, and medical care. Unfortunately, without Congressional input, there is no guarantee that these expedited procedures will take place. The Medicare Patient Access to Technology Act of 1999 has arisen out of growing evidence that without intervention, Medicare beneficiaries will be denied access to the most modernized treatments and innovations in health care. After medical technologies, devices, and drugs are approved by the Food and Drug Administration, they still must meet several critical HCFA requirements before they are available to Medicare beneficiaries. First, before technologies are approved by HCFA for reimbursement, they must be covered, that is fulfill the definitions of ``reasonable and necessary.'' Second, they must have an identifying procedure code. New device technologies receive this ``procedure code,'' a four or five digit identification number that allows health care providers to submit claims to payers. Finally, the technologies must be reimbursed through one of Medicare's payment systems. The problems arise because each of these levels is plagued by inefficiency, coding delays, and lack of data usage by HCFA. My legislation addresses these concerns in five specific ways. First, Medicare payment levels and payment categories will be adjusted at least annually to reflect changes in medical practice and technology. A recent Institute of Medicine study reported that most medical technologies have an average life span of 18 months with many modernizations occurring rapidly. These innovations must, therefore, be rapidly processed so that they are accessible to beneficiaries. While BBA 97 authorized HCFA to adjust payment systems ``periodically'' to account for changes in technology, there is little promise that this will occur in a systematic, timely and beneficial manner. My bill requires HCFA to review and revise payment categories and payment levels for all prospective payment systems (PPS) at least annually. These prospective payment systems include hospital inpatient and outpatient, physicians, ambulatory surgery facility services. It also calls for public input on the review process. Second, this legislation mandates that valid external sources of information be used to update payment categories if Medicare's data are limited in scope or, are not yet available. Traditionally, HCFA has only used its own data set, known as the Medicare Provider Analysis and Review (MEDPAR) data systems, to evaluate a given technology before assigning an appropriate code. The average waiting period for the assignment of a new code is 18 months or longer. Furthermore, HCFA refuses to consider partial year or externally generated data in its decision-making processes. My bill directs HCFA to use external sources of data on the cost, charges and use of medical technologies. This language allows HCFA to utilize high quality data from private insurers, manufacturers, suppliers, providers, and other sources. Third, my legislation will require that national procedure codes are updated more frequently to reduce delays in accessing new technologies. Currently, new products must have an identification code before they are eligible for appropriate reimbursement by Medicare. Assigning this code can take 18 months or longer because of the way HCFA has structured its calendar year. This legislation allows HCFA to accept applications quarterly, on a rolling basis, thereby allowing the processing of new technologies throughout the year instead of bundling them at one annual submission. Furthermore, the Medicare Patient Access to Technology Act will eliminate the HCFA requirement that new products be on the market for six months before they are eligible for a new code. This provision will ensure that new technologies are brought to Medicare beneficiaries more rapidly. Fourth, the bill guarantees that local procedure codes for medical technologies will continue to be used. HCFA has proposed to eliminate Common Procedure Coding System (HCPCS) Level III Local Codes beginning in 2000 and replace it with the Level II National Codes. This is potentially detrimental to new technologies that are often introduced into local, smaller health care systems before they are expanded into nationwide markets. Without the Level III Local Codes, new technologies must be placed into a ``miscellaneous'' code that is often rejected by payers thereby denying access of the technology to beneficiaries. The maintenance of the current system will ensure that technologies will be encoded at the earliest possible date and processed before moving to the national level. Finally, the legislation authorizes HCFA to create an Advisory Committee on Medicare Coding and Payment. As a result, when HCFA has to make coding and payment decisions, it will be prompt, permit public participation, and will guarantee Medicare beneficiaries access to the highest quality products and services. The panel would ensure that safe medical technologies are approved, covered, coded and paid by Medicare as expeditiously as possible. In addition to the above authorizations, the Medicare Patient Access to Technology Act proposes several refinements to the Administration's proposed outpatient prospective payment system (PPS). The legislation affects three changes to HCFA's implementation of the Balanced Budget Act (BBA) of 1997. The first change mandates HCFA to restructure the proposed ambulatory payment classification (APC) system to create groups of procedures that are more similar in cost and most closely related clinically. The current HCFA proposal would create unusual financial incentives that would clearly discourage the use of the most appropriate, cutting-edge technology. Furthermore by grouping very disparate technologies, hospitals will face serious underpayments for certain procedures. I believe that illogical categorization creates disincentives to use newer, but more expensive products and procedures that provide far superior patient care. The second change mandates that HCFA retain the current cost-based system for another four years to compile the cost studies and use data and conduct the analysis necessary to classify them in the appropriate APC. The development of these data sets are mandatory and without proper clarification. Therefore, these products could receive substantial underpayment, and, as a result, patient access to newer procedures and products could be limited. Third, the implantable medical technologies should be reimbursed under the new APCs along with other similar medical technologies. They should not be reimbursed through the durable medical technology fee schedule. By placing the implantables within the DME propective payment system, the fee schedule will lock implantables into defined categories that will limit their use and inhibit their access to seniors. By placing them into the proposed APCs with the other medical devices, they will be treated as other new, innovative medical technologies. Again, I am pleased to be joined by my Senate colleagues, Senators Nickles, Breaux, Grassley, Murkowski, and Bayh, in introducing this important piece of legislation. This bill supports both our Medicare beneficiaries and our technology, pharmaceutical, and biotechnical industries by continuing to promote life-enhancing innovations. I firmly believe that these significant improvements to our Medicare coding and payment systems will increase the access to modern medical innovation to Americans who need them most, our senior citizens. Mr. President, I urge my colleagues to join us in support of this important legislation.

Mr. HATCH

Mr. HATCH. Mr. President, this bill is a bipartisan bill, drafted jointly by Senators Grassley and Torricelli. This legislation has been developed in a fair and inclusive manner. The reforms proposed in this bill have been carefully studied and have been deliberated upon at length. Indeed, Congress has been engaged in the consideration of this issue now for several years. The National Bankruptcy Review Commission spent two years comprehensively examining the bankruptcy system. The findings and opinions of the Commission, which were reported to Congress, have proved helpful in identifying the problems in the bankruptcy system and in finding appropriate solutions. Furthermore, the Subcommittee on Administrative Oversight and the Courts, which is chaired by Senator Grassley, has held numerous hearings on the issue of bankruptcy reform. The subcommittee heard extensive testimony on the subject from dozens of witnesses. Again, I would like to thank Senators Grassley and Torricelli for their leadership in this important consumer bankruptcy reform, and also last session's ranking member of the Administrative Oversight and the Courts Subcommittee, Senator Durbin, along with other members of the Senate, for their hard work on this issue. Throughout the process of consideration of this bill, at both the subcommittee and full committee level, changes suggested by the minority were included in the bill. During this entire process, I have expressed my willingness to work to address any remaining concerns the minority has about the bill. It is apparent, however, that efforts are underway to defeat this important legislation by attaching irrelevant, extraneous ``political agenda'' items to it, such as minimum wage, guns, abortion and tobacco, to name a few. I am open to full debate on relevant issues. Nevertheless, some of my friends on the other side of the aisle continue to tie up consideration of this bill for what appears to be political points. Despite the efforts of those in opposition, I remain hopeful and optimistic that we will be able to pass legislation this year that provides meaningful and much-needed reform to the bankruptcy system. The House of Representatives passed a much more stringent bankruptcy reform bill by an overwhelming bipartisan majority earlier this spring. The time has come for us to rise above politics and to do what is right for the American people. It is time for meaningful and fair bankruptcy reform. I urge my colleagues to vote for cloture so we may consider the substance of this important legislation and make our bankruptcy system better for all Americans. The Bankruptcy Reform Act of 1999 closes many of the loopholes in our bankruptcy system that allow unscrupulous individuals to use bankruptcy as a financial planning tool rather than as a last resort. Despite the White House's statement of opposition to the House's bankruptcy reform bill, H.R. 833, the House of Representatives realized that the time has come to restore personal responsibility to our nation's bankruptcy system. House Democrats and Republicans alike recognized that if we do not take the opportunity to reform our broken system, every family in my own State of Utah and throughout the country, many of whom struggle to make ends meet, will continue to bear the financial burden of those who take advantage of the system. As a result, the House bill passed by an overwhelming margin of 313 to 108. Half of the House Democratic Caucus joined with every House Republican to support the bill. And notably, the House bankruptcy reform bill is more stringent in its reforms than the Senate bill before us today. More than three decades ago, the late Albert Gore, Sr., then a Senator, commented on the moral consequences of a lax bankruptcy system. He said: I realize that we cannot legislate morals, but we, as responsible legislators, must bear the responsibility of writing laws which discourage immorality and encourage morality; which encourage honesty and discourage deadbeating; which make the path of the social malingerer and shirker sufficiently unpleasant to persuade him at least to investigate the way of the honest man. (Cong. Rec. 905, January 19, 1965.) I too believe that the complete forgiveness of debt should be reserved for those who truly cannot repay their debts. S. 625 provides us with the opportunity to prevent people who can repay their debts from ``gaming the system'' by using loopholes that are presently in place. Mr. President, S. 625 provides a needs-based means test approach to bankruptcy, under which debtors who can repay some of their debts are required to do so. It contains new measures to protect against fraud in bankruptcy, such as a requirement that debtors supply income tax returns and pay stubs, audits of bankruptcy cases, and limits on repeat bankruptcy filings. It eliminates a number of loopholes, such as the one that allows debtors to transfer their interest in real property to others who then file for bankruptcy relief and invoke the automatic stay. And, the bill puts some controls on the ability of debtors to get large cash advances on their credit cards and to buy luxury goods on the eve of filing for bankruptcy. At the same time, the Senate bill provides many unprecedented new consumer protections. It imposes penalties upon creditors who refuse to negotiate in good faith with debtors prior to declaring bankruptcy. Also, it imposes penalties on creditors who willfully fail to properly credit payments made by the debtor in a chapter 13 plan, and for creditors who threaten to file motions in order to coerce a reaffirmation without justification. Moreover, the bill imposes new measures to discourage abusive reaffirmation practices. Mr. President, S. 625 addresses the problem of bankruptcy mills, firms that aggressively promote bankruptcy as a financial planning tool, and often end up hurting unwitting debtors by putting them in bankruptcy when it may not be in their best interest. The bill also imposes penalties on bankruptcy petition preparers who mislead debtors. Importantly, the bill makes major strides in trying to break the cycle of indebtedness. It educates debtors with regard to the alternatives available to them, sets up a financial management education pilot program for debtors, and requires credit counseling for debtors. I must commend Senator Sessions for his leadership on these important credit counseling provisions. I am proud that the bill also makes extensive reform to the bankruptcy laws in order to protect our children. I have authored provisions of the bill to ensure that bankruptcy cannot be used by deadbeat dads to avoid paying child support and alimony obligation. Under my provisions, the obligation to pay child support and alimony is moved to a first priority status, as opposed to its current place at seventh in line, behind attorneys fees and other special interests. My measures also ensure the collection of child support and alimony payments by, among other things, exempting state child support collection authorities from the ``automatic stay'' that otherwise prevents collection of debts after a debtor files for bankruptcy, and by exempting from discharge virtually all obligations one ex-spouse owes another. A new amendment will make changes to a number of provisions in the bill to clarify that the provisions are not intended, directly or indirectly, to undermine the collection of child-support or alimony payments. The bill includes a provision that I offered, which was accepted in the Judiciary Committee, which creates new legal protections for a large class of retirement savings in bankruptcy, a measure which is supported by groups ranging from the AARP, to the Small Business Council of America and the National Council on Teacher Retirement. Rampant bankruptcy filings are a big problem. In 1998, 1.4 million Americans filed for bankruptcy. That was more Americans than graduated from college, were on active military duty, or worked in the post office. Indeed, more people filed for bankruptcy in 1998 than lived in the states of Alaska, Delaware, Hawaii, Idaho, Maine, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, Vermont, or Wyoming. Last year, about $45 billion in consumer debt was erased in personal bankruptcies. Let me give this number some context. Forty-five billion dollars is enough to fund the entire U.S. Department of Transportation for a year. Losses of this magnitude are passed on the American families at an estimated cost--if we use low estimates--of $400 to every household in America every year. That $400 could buy every American family of four: five weeks worth of groceries, 20 tanks of unleaded gasoline, 10 pairs of shoes for the average grade-school child, or more than a year's supply of disposable diapers. Under current law, families who do not file for bankruptcy are unfairly having to subsidize those who do. Currently, our bankruptcy system is devoid of personal responsibility and is spiraling out of control. This is our opportunity to do something about it. As noted scholars Todd Zewicky of George Mason Law School and James White of the University of Michigan Law School recently wrote: Current law requires a case-by-case investigation that turns on little more than the personal predilections of the judge. This chaotic system mocks the rule of law, and has resulted in unfairness and inequality for debtors and creditors alike. The arbitrary nature of the process has also undermined public confidence in the fairness and efficiency of the consumer bankruptcy system. I am proud to be proposing several enhancements to the bill that primarily are designed to protect consumers and further provide incentives for consumers to take personal responsibility in dealing with debt management. In the area of domestic support, as I indicated earlier, Senator Torricelli and I intend to build upon the new legal protections we created, as part of the underlying bill, for ex-spouses and children who are owed child support and alimony payments. The changes will further strengthen the ability of ex-spouses and children to collect the payments they are owed, and will make changes to a number of existing provisions in the bill to clarify that they will not directly or indirectly undermine the collection of child support or alimony payments. In the area of education, Senator Dodd and I, along with Senator Gregg, have developed an amendment that will protect from creditors contributions made for education expenses to education IRAs and qualified state tuition savings programs. This is a significant protection for those who honestly put money away for the benefit of their children and grandchildren's educational expenses. The potential that education savings accounts will be abused in bankruptcy is addressed by the amendment's requirement that only contributions made more than a year prior to bankruptcy are protected. I believe that protecting educational savings accounts is particularly important because college savings accounts encourage families to save for college, thereby increasing access to higher education. Nationwide, there are more than a million educational savings accounts, meaning there are more than a million children who would benefit from this amendment. As much as I believe that the bankruptcy laws need to be reformed to prevent abuse and to ensure debtors take personal responsibility, the ability to use dedicated funds to pay the educational costs of children should not be jeopardized by the bankruptcy of their parents or grandparents. I have also developed a debt counseling incentive provision, which builds on the credit counseling provisions currently in S. 625. It removes any disincentive for debtors to use credit counseling services by prohibiting credit counseling services from reporting to credit reporting agencies that an individual has received debt management or credit counseling, and establishes a penalty for credit counseling services that do. Debt management education is vital to reducing the number of Americans who, because of poor financial planning skills, are forced to declare bankruptcy. Providing crediting counseling-- instruction regarding personal financial management--to current and potential filers will help curb bankruptcy filing. In addition, I intend to offer an amendment that is designed to curb fraud in filing. This amendment puts in place new procedures and provides new resources to enhance enforcement of bankruptcy fraud laws. It will require No. 1 that bankruptcy courts develop procedures for referring suspected fraud to the FBI and the U.S. attorney's office for investigation and prosecution and No. 2 that the Attorney General designate one assistant U.S. attorney and one FBI agent in each judicial district as having primary responsibility for investigating and prosecuting fraud in bankruptcy. I also plan to offer an amendment that will allow a victim of a crime of violence or drug trafficking offense or another party in interest to petition the bankruptcy court to dismiss a petition voluntarily filed by a debtor who was convicted of the crime of violence or drug trafficking offense. In order to protect women and children who may be owed payments by such a debtor, however, the amendment would still allow the bankruptcy petition to continue if the debtor can show that the filing of the petition is necessary to ensure his ability to meet domestic support obligations. Bankruptcy is not an entitlement--it is a process by which certain qualifying individuals with substantial debts may cancel their debts and obtain a ``fresh start.'' Under this amendment, violent criminals and drug traffickers--individuals who have chosen to engage in serious, criminal conduct--would be precluded from availing themselves of the benefits of bankruptcy protection. Again, I thank Senator Grassley, the distinguished chairman of the Judiciary Committee's Subcommittee on Administrative Oversight and the Courts, for his leadership and dedication to this effort, and look forward to working with him and the subcommittee's ranking member, Senator Torricelli, in passing this legislation. Let's look at a couple of other charts. This one is done by Penn, Schoen and Bergland Associates, Inc.: 83 percent of the American people favor an income test in bankruptcy reform. Only 10 percent oppose it and 7 percent don't know. So we should have an income test in bankruptcy reform. Americans agree that bankruptcy should be based on need. Ten percent believe an individual who files for bankruptcy should be able to wipe out all their debt regardless of their ability to repay that debt. Only 10 percent of our society believe that, and I am surprised that many people believe that. If somebody has the ability to pay a debt, why should they stiff other people with their debts and why shouldn't they have to live up to paying off their debts? Four percent refused to answer this. But 87 percent believe an individual who files for bankruptcy--all of this yellow--should be required to repay as much of their debt as they are able and then be allowed to wipe out the rest. That makes sense. Otherwise, we have people who are using the bankruptcy laws as an estate planning device. We have people who every 5 years file for bankruptcy after running up all kinds of bills and enjoying the life of Riley during those intervening years. What we want to do is have people realize there are some disincentives for doing that and that they have to pay some of these bills themselves. These particular charts show that the American people have their heads screwed on right, except for about 10 percent of them. If an individual has the ability to repay some of the debt, they ought to be able to and they ought to want to, they ought to do what is right, and 87 percent of the American people believe that is the case. Only 10 percent believe they should be able to wipe out any debts at any time by going into bankruptcy. I hope we can get people to vote for cloture on this matter so we can proceed and so we will not have any further delay in passing what really will be one of the most important bills in this particular session of Congress. Mr. President, I suggest the absence of a quorum.