Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to join my colleague from Wisconsin, Senator Herb Kohl, in introducing a resolution to designate September 14-20, 2008, as National Polycystic Kidney Disease Awareness Week. Approximately 600,000 Americans and more than 12 million people worldwide suffer from polycystic kidney disease or PKD. Through this resolution, we hope to raise awareness of this disease that is relatively unknown but affects so many people. PKD is one of the most common life-threatening genetic diseases impacting America today. According to the PKD Foundation, the disease afflicts more people than Down syndrome, cystic fibrosis, muscular dystrophy and sickle cell anemia combined. The two major forms of PKD are autosomal dominant PKD--also called ``adult PKD'' because it customarily causes symptoms in adulthood--and autosomal recessive PKD, a rare form that usually causes symptoms in infancy and early childhood. Babies born with this latter type of PKD often do not live longer than the first month of life. About half of autosomal dominant PKD patients eventually develop kidney failure and require dialysis or a kidney transplant. PKD is the fourth leading cause of kidney failure, and it is the leading genetic cause of kidney failure. PKD is characterized by the growth of fluid-filled cysts on the nephrons of the kidneys. A polycystic kidney can have thousands of these cysts growing on it. In time, the cysts separate from the nephrons and continue to enlarge--and the kidneys enlarge along with the cysts. A normal, healthy kidney is about the size of a fist; but, in fully developed cases of autosomal dominant PKD, a cyst-filled kidney can grow to the size of a football or larger and weigh as much as 20 to 30 pounds. This leads to decreased kidney function and kidney failure. PKD also can cause cysts in the liver and problems in other organs, such as blood vessels in the brain and heart. High blood pressure is common and develops in most patients by age 20 or 30, and brain aneurysm is a common cause of death in PKD patients. There is no cure for PKD, only minimal treatments such as medicine to control high blood pressure, or medicine and surgery to reduce pain, and antibiotics for infections. More severe cases of PKD require more intense treatment options such as dialysis for failing kidneys or a kidney transplant. There may be no cure, but there is hope. According to the National Institute of Diabetes and Digestive and Kidney Diseases at the National Institutes of Health, scientists have begun to identify what triggers formation of PKD cysts. And advances in genetics have expanded understanding of the abnormal genes responsible for both forms of PKD. Recent clinical studies of autosomal dominant PKD are exploring new imaging methods for tracking progression of cystic kidney disease. Today, magnetic resonance imaging, MRI, is helping scientists design better clinical trials for new treatments of adult PKD. There is also hope in awareness and education, which offer patients opportunities to discuss and learn about their disease, provide more resources for research and treatment options for PKD, and lead to more events to heighten visibility and aid in fundraising. As I said earlier, not many people know about the disease, even in my home State of Utah where PKD rates are three times the national average. To promote greater understanding of this destructive genetic disease, Senator Kohl and I have introduced this resolution to designate a National Polycystic Kidney Disease Awareness Week. I urge my colleagues to support it.

Mr. HATCH

Mr. HATCH. Mr. President, on behalf of myself and my dear friend and colleague, Senator Lincoln, I rise today to introduce the Small Bank Tax Equity Act. One of the many important duties of Congress is to ensure that the various laws that govern commerce in this Nation are working as efficiently as possible. This can be a significant challenge because of the rate of change and innovation occurring in our world today. Nevertheless, we need to be aware that changing circumstances can lead to obsolescence in our laws, which can have a limiting effect on economic growth and on our ability to compete in an ever-more challenging marketplace. This is as true of our tax laws as it is with any other laws. We often speak of the many problems of the Internal Revenue Code, and most of them have to do with complexity and perceived unfairness. However, I believe that the issue of outdated or obsolete provisions that no longer reflect the realities of our changing world is also an obstacle that deserves our attention. This is why I am pleased today to be introducing legislation that would reverse an outdated administrative rule and allow banks the flexibility to be structured in a much more tax-efficient manner. Under our bill, the Small Bank Tax Equity Act, banks that are organized as limited liability companies would be able to elect to be taxed on a flowthrough basis. Under this treatment, the bank's shareholders would be taxed each year on the bank's income, but the bank would not also be subject to a second layer of tax on that same income at the entity level. A little history is in order here. Treasury Department regulations have long allowed limited liability companies to be classified for tax purposes as flowthrough entities. Under this classification, the company's owners are subject to tax on the company's income on a flow- through basis. This allows the very significant advantage of not being subject to the double taxation characteristic of corporations, as all banks are currently taxed. Those same Treasury Department regulations specifically deny banks that are organized as limited liability companies the benefit of flow- through tax treatment, even though this favorable treatment is available to other types of businesses. While banks can organize as limited liability companies, for tax purposes, they are taxed as corporations. It is important to note that at the time the Treasury Department issued these regulations, banking laws actually required all banks to be organized in the corporate form under state law in order to obtain federal deposit insurance. In fact, this requirement was cited in the regulations as the reason for the denial of flow-through tax treatment to banks that have federal deposit insurance. However, this aspect of the banking laws has been changed. In 2003, the Federal Deposit Insurance Corporation FDIC, issued regulations permitting banks to be organized as limited liability companies and to qualify for federal deposit insurance. Following this FDIC action, it was expected that the Treasury Department would likewise change its regulations to allow banks organized as LLCs to enjoy flowthrough tax treatment. However, despite the urging of several Members of Congress, including myself, Treasury has declined to make this change administratively. The continued denial of flow-through tax treatment of bank limited liability companies is, in my view, unjustified and anti-competitive. Moreover, it fails to bring the law up to date with current business practices. In 1996, Congress amended the Subchapter S corporation rules, which provide flow-through tax treatment, to allow banks to be organized as S corporations. This change reflected Congress's belief that the S corporation election should be allowed for banks, just as it is allowed for other businesses meeting the qualifications for this important tax regime. The legislation we are introducing today is based on exactly the same belief. The flow-through treatment that would be made available under the bill will give America's smaller banks, including the community banks on which we depend to provide funding to allow small businesses to expand and thrive, another option for organizing in the most efficient manner. The changes we made in 1996 to Subchapter S to allow banks to elect flowthrough tax treatment was very well received by the banking community, and today there are thousands of S corporation banks throughout America. The Small Bank Tax Equity Act will mean that banks would be able to choose the limited liability company structure, which allows even greater flexibility in raising capital than does the S corporation form of entity. I expect that the election for flow-through tax treatment for LLCs allowed under this bill to be as well received as the election for S corporation status has been and that many smaller banks, especially newly-established ones, will avail themselves of this opportunity. My home State of Utah in 2004 enacted laws allowing banks to be organized as limited liability companies. In light of the 2003 FDIC rule change that allowed LLC banks to qualify for federal deposit insurance, Utah enacted this legislation in order to facilitate the most efficient and flexible structure for small banks. Other states have passed, or are considering, similar laws. Many others would likely follow suit if the tax rules paralleled the deposit insurance treatment. However, the goals of these states in passing these laws will not be realized until the tax law is also updated to provide flowthrough tax treatment for banks that choose to operate in this form. The following is a brief technical description of the Small Bank Tax Equity Act. The Small Bank Tax Equity Act would provide qualifying banks with an election to be classified for tax purposes as a partnership or to be disregarded as a separate entity, in the case of a bank with only a single ownernlecting this classification would provide flow-through tax treatment to the electing bank. Under the bill, the election is available to State-chartered business entities that conduct banking activities, that have federal deposit insurance, and that are organized as limited liability companies. These are the banks that are excluded from flow-through treatment under the existing Treasury regulations that were written based on pre-2003 FDIC rules. If a bank makes the election allowed under the Small Business Tax Equity Act before the end of a two taxable year transition period following enactment, the election would not subject the bank to immediate tax on any appreciation in its assets. Instead, the electing bank would be subject to special rules with respect to the taxation of gains and losses that are recognized during the ten-year period following the election. These special rules mirror the special rules that apply when an entity elects to convert to S corporation status. These special rules would not apply, however, to an electing bank that had begun conducting banking activities after February 12, 2003, the date of the FDIC action allowing State-chartered banks organized as limited liability companies to obtain federal deposit insurance. These banks acted with the expectation that flow-through tax treatment would be available and should not be penalized for the delay in being able to obtain that treatment. Thus, under the Small Bank Tax Equity Act, making the election for flow-through treatment will not trigger any special tax consequences with respect to inherent gains or losses for these banks. Small businesses are the backbone of the American economy. They are responsible for creating the most jobs in this Nation, particularly during economic slowdowns, such as we are experiencing now. Smaller banks are important for at least two reasons. They are small businesses themselves, and they serve other small businesses and provide them with the capital they need to grow and create jobs. It is our duty to ensure that America's small businesses operate as efficiently as possible. This means that our tax laws need to be friendly and offer flexibility, rather than hidebound and obsolete, in order to encourage the kind of growth of which our small business sector is capable. This bill would take a very significant step in that direction, and I encourage our colleagues to support this legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, on behalf of myself and my dear friend and colleague, Senator Lincoln, I rise today to introduce the Small Bank Tax Equity Act. One of the many important duties of Congress is to ensure that the various laws that govern commerce in this Nation are working as efficiently as possible. This can be a significant challenge because of the rate of change and innovation occurring in our world today. Nevertheless, we need to be aware that changing circumstances can lead to obsolescence in our laws, which can have a limiting effect on economic growth and on our ability to compete in an ever-more challenging marketplace. This is as true of our tax laws as it is with any other laws. We often speak of the many problems of the Internal Revenue Code, and most of them have to do with complexity and perceived unfairness. However, I believe that the issue of outdated or obsolete provisions that no longer reflect the realities of our changing world is also an obstacle that deserves our attention. This is why I am pleased today to be introducing legislation that would reverse an outdated administrative rule and allow banks the flexibility to be structured in a much more tax-efficient manner. Under our bill, the Small Bank Tax Equity Act, banks that are organized as limited liability companies would be able to elect to be taxed on a flowthrough basis. Under this treatment, the bank's shareholders would be taxed each year on the bank's income, but the bank would not also be subject to a second layer of tax on that same income at the entity level. A little history is in order here. Treasury Department regulations have long allowed limited liability companies to be classified for tax purposes as flowthrough entities. Under this classification, the company's owners are subject to tax on the company's income on a flow- through basis. This allows the very significant advantage of not being subject to the double taxation characteristic of corporations, as all banks are currently taxed. Those same Treasury Department regulations specifically deny banks that are organized as limited liability companies the benefit of flow- through tax treatment, even though this favorable treatment is available to other types of businesses. While banks can organize as limited liability companies, for tax purposes, they are taxed as corporations. It is important to note that at the time the Treasury Department issued these regulations, banking laws actually required all banks to be organized in the corporate form under state law in order to obtain federal deposit insurance. In fact, this requirement was cited in the regulations as the reason for the denial of flow-through tax treatment to banks that have federal deposit insurance. However, this aspect of the banking laws has been changed. In 2003, the Federal Deposit Insurance Corporation FDIC, issued regulations permitting banks to be organized as limited liability companies and to qualify for federal deposit insurance. Following this FDIC action, it was expected that the Treasury Department would likewise change its regulations to allow banks organized as LLCs to enjoy flowthrough tax treatment. However, despite the urging of several Members of Congress, including myself, Treasury has declined to make this change administratively. The continued denial of flow-through tax treatment of bank limited liability companies is, in my view, unjustified and anti-competitive. Moreover, it fails to bring the law up to date with current business practices. In 1996, Congress amended the Subchapter S corporation rules, which provide flow-through tax treatment, to allow banks to be organized as S corporations. This change reflected Congress's belief that the S corporation election should be allowed for banks, just as it is allowed for other businesses meeting the qualifications for this important tax regime. The legislation we are introducing today is based on exactly the same belief. The flow-through treatment that would be made available under the bill will give America's smaller banks, including the community banks on which we depend to provide funding to allow small businesses to expand and thrive, another option for organizing in the most efficient manner. The changes we made in 1996 to Subchapter S to allow banks to elect flowthrough tax treatment was very well received by the banking community, and today there are thousands of S corporation banks throughout America. The Small Bank Tax Equity Act will mean that banks would be able to choose the limited liability company structure, which allows even greater flexibility in raising capital than does the S corporation form of entity. I expect that the election for flow-through tax treatment for LLCs allowed under this bill to be as well received as the election for S corporation status has been and that many smaller banks, especially newly-established ones, will avail themselves of this opportunity. My home State of Utah in 2004 enacted laws allowing banks to be organized as limited liability companies. In light of the 2003 FDIC rule change that allowed LLC banks to qualify for federal deposit insurance, Utah enacted this legislation in order to facilitate the most efficient and flexible structure for small banks. Other states have passed, or are considering, similar laws. Many others would likely follow suit if the tax rules paralleled the deposit insurance treatment. However, the goals of these states in passing these laws will not be realized until the tax law is also updated to provide flowthrough tax treatment for banks that choose to operate in this form. The following is a brief technical description of the Small Bank Tax Equity Act. The Small Bank Tax Equity Act would provide qualifying banks with an election to be classified for tax purposes as a partnership or to be disregarded as a separate entity, in the case of a bank with only a single ownernlecting this classification would provide flow-through tax treatment to the electing bank. Under the bill, the election is available to State-chartered business entities that conduct banking activities, that have federal deposit insurance, and that are organized as limited liability companies. These are the banks that are excluded from flow-through treatment under the existing Treasury regulations that were written based on pre-2003 FDIC rules. If a bank makes the election allowed under the Small Business Tax Equity Act before the end of a two taxable year transition period following enactment, the election would not subject the bank to immediate tax on any appreciation in its assets. Instead, the electing bank would be subject to special rules with respect to the taxation of gains and losses that are recognized during the ten-year period following the election. These special rules mirror the special rules that apply when an entity elects to convert to S corporation status. These special rules would not apply, however, to an electing bank that had begun conducting banking activities after February 12, 2003, the date of the FDIC action allowing State-chartered banks organized as limited liability companies to obtain federal deposit insurance. These banks acted with the expectation that flow-through tax treatment would be available and should not be penalized for the delay in being able to obtain that treatment. Thus, under the Small Bank Tax Equity Act, making the election for flow-through treatment will not trigger any special tax consequences with respect to inherent gains or losses for these banks. Small businesses are the backbone of the American economy. They are responsible for creating the most jobs in this Nation, particularly during economic slowdowns, such as we are experiencing now. Smaller banks are important for at least two reasons. They are small businesses themselves, and they serve other small businesses and provide them with the capital they need to grow and create jobs. It is our duty to ensure that America's small businesses operate as efficiently as possible. This means that our tax laws need to be friendly and offer flexibility, rather than hidebound and obsolete, in order to encourage the kind of growth of which our small business sector is capable. This bill would take a very significant step in that direction, and I encourage our colleagues to support this legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, it was Kierkegaard, a number of years ago, who said that venture causes anxiety, but not to venture is to lose one's self. From the outset let me be crystal clear in voicing my strong opposition to all three pending amendments to H.R. 6304. But before I discuss these amendments, let me address a few things said on this floor yesterday. One of my colleagues said the Congress shouldn't ``jam this bill through.'' If working on a bill for over 440 days is jamming it through, then Webster's dictionary should prepare a new definition for the word. We also heard comments yesterday which were critical of the fact that not every Senator has been fully briefed on the activities of the intelligence community. I guess since this same argument didn't stick the first time it was offered back in December, more desperate attempts would be made. If at first you don't succeed, try, try again. Memories are short around here, and we should appreciate that the very creation of the Intelligence Committee was controversial. The committee was created so a limited number of Members would have oversight of our intelligence agencies. During the 10 days of debate on the resolution creating this committee, numerous Senators openly worried about possible leaks in providing highly classified material to a large number of individuals. Here is what Senator Milton Young said in May of 1976: It is my understanding that on this new committee, staff would have access to the most sensitive information. Human nature is such that when too many people have access to this information, someone is bound to leak parts of it to an ambitious and inquisitive press. Also, in 1976, here is what another Senator said. This is Senator Walter Mondale on the need for a Senate Intelligence Committee on May 13, 1976: We have the worst possible system for congressional oversight of intelligence. Responsibility and authority are fragmented in several cases; it is impossible to look at intelligence as a whole; because authority and responsibility are not welded together, we are incapable of dealing with problems privately, and there is the inevitable temptation to deal with them through leaks. Thirty two years later, these statements contain points that are still vitally important to this discussion. Is this the system of oversight that we should go back to? Those that argue that we should not vote until every Member gets some sort of vague access are essentially saying that all 535 Members of Congress, plus hundreds of cleared staff, should be read into all highly classified programs whose jurisdiction is otherwise limited to the Intelligence Committees. If you want to guarantee future leaks, this would be a good approach. This sort of logic begs the question: Why do we have the Intelligence Committee? The answer is obvious, and I urge my colleagues to remember the extensive efforts of our predecessors which created a committee with the authority to review these materials. While the issue of civil liability protection for telecoms has been debated extensively over the last 9 months, the three final amendments before us all attempt to alter or remove the carefully crafted bipartisan civil liability provision. I agree with the comments from both sides of the aisle in opposition to these amendments. The Bingaman amendment, for example, would needlessly delay the liability provision. I believe the amendment is unwise, as its purpose disregards the extensive work that Congress has already conducted on this issue. By my last count, Congress has conducted over 27 hearings on the TSP and FISA over the last few years. Let there be no doubt; the IG review will not, and cannot, determine the legality of the terrorist surveillance program. Any suggestion that the review will do so is absolutely incorrect. Inspectors general are not qualified and lack jurisdiction to review the legality of intelligence programs. As further evidence of this obvious point, let's look at this quote by the DOJ inspector general on conducting legal analysis: That's not our role as the Inspector General. In addition, the IG review will not publicly reveal which companies elected to participate in this program, as that information remains highly classified. Simply put, attempts to alter the FISA compromise based on a misperception of the eventual IG review should be strongly rejected, and we should do so this morning. Close inspection of the lawsuits against the telecoms reveals quite dubious claims. As has previously been stated, the plaintiffs persistently confuse speculative allegations and untested assertions for established facts. It is very simple, Congress should not condone oversight through litigation. The lawsuits seize on the President's brief comments about the existence of a limited program to go on a fishing expedition of NSA activities. But this is really worse than a fishing expedition; this is draining the Loch Ness to find a monster. Sometimes what you are looking for just doesn't exist. Yet we consistently hear as justification for the apparent paranoia that some wiretaps were warrantless. But lest we forget, the fourth amendment does not proscribe warrantless searches, it proscribes unreasonable searches. Here's a quick example from a few blocks from here: Waiting for warrantless searches at the National Archives; waiting to be served before viewing the fourth amendment itself. That is a warrantless search. The fact is that the President created an early warning system to prevent future attacks; essentially a terrorist smoke detector. But rather than appreciate the protection it offered, critics rushed to pull out the batteries so that it could not work. My feelings of admiration and respect for the companies who did their part to defend America are well known. As I have said in the past, any company who assisted us following the attacks of 9/11 deserves a round of applause and a helping hand, not a slap in the face and a kick to the gut. When companies are asked to assist the intelligence community based on a program authorized by the President himself and based on assurances from the highest levels of government that the program has been determined to be lawful, they should be able to rely on those representations. In the over 40 outstanding civil lawsuits, is there any proof that any litigant was specifically targeted by the government? Can any of the plaintiffs show that they are ``aggrieved persons'' under the definition of FISA? The answer to both questions is no. Rather, many of the lawsuits utilize the following logic: I have long distance service, so I am going to sue because I think you listened to my calls. Even though they have no proof; even though the government has more important things to do than listen to their random phone calls, they push on in their desire to justify their view of self-importance and irrational belief in government conspiracy. I don't want to bruise anyone's ego, but if al-Qaida is not on your speed dial the government is probably not interested in you. The possible disclosure of classified materials from ongoing court proceedings is a grave threat to national security, and the very point of these lawsuits is to prove plaintiffs' claims by disclosing such classified information. Simply put, you do not tell your enemies how you track them. This is why the NSA and other government agencies will not say what they do, how they do it, or who they watch. Nor should they. To confirm or deny any of these activities, which are at the heart of the civil lawsuits, would harm national security. We should not discuss what our capabilities are. If the identities of the companies are revealed and officially confirmed through litigation, they will face irreversible harm; harm in their business relations with foreign governments and companies, and possible physical harm to their employees both here and abroad, who are truly soft targets for attackers. I have come to this floor on numerous occasions during the last year to discuss the issue of FISA modernization and am hopeful that the need to continue to do so will finally end tomorrow. I am confident that when the Congress considers this issue, we will finally send this vitally important legislation to the President to be signed into law. I compliment the distinguished chairman and vice chairman of the committee, Senators Rockefeller and Bond. They have had to handle this matter through all kinds of vicissitudes and false logic. They have done an exceptionally good job. They and their staff have stood and tried to let America know what is involved. The fact is, these two leaders have done a great job on this committee. They have previously passed bipartisan legislation overwhelmingly. This original Senate FISA modernization bill would have passed the House pretty much overwhelmingly, had it been brought up, and, of course, hopefully this version will be passed today without any of these three amendments which would cause a veto. I thank those who vote for this bill and those who have been considerate enough to look at all the important arguments and support this legislation which is much needed, certainly much needed before August and should have been passed a long time ago. I thank all those who have stood up on this bill. I yield the floor.

Mr. HATCH

Mr. HATCH. Madam President, I rise to oppose cloture on the motion to proceed to H.R. 6331, the Medicare Improvements for Patients and Providers Act. I am beginning to feel like the character from the movie ``Groundhog Day'' who wakes up every morning to the same day. Here we are again, having the same debate about the same Medicare bill that will not be signed into law. I believe that our time would be better spent working on a bill to restore physician payments instead of having a partisan vote just to make some political points. It would be better to work in a bipartisan way. We could do it in 10 minutes, if we just sit down and do it. I know the distinguished chairman and ranking member could do it. But it is obvious that some in this body would rather have a political battle and put Medicare beneficiaries and their doctors at risk. In the last month, I stood on the Senate floor, not once, but twice emphasizing that I want to work on a bipartisan Medicare bill that will be signed into law. In fact, we had a bipartisan agreement in the Senate. Unfortunately, Senate Democrats are still not permitting a vote on a compromise measure or even the Republican alternative. The bipartisan compromise bill would have passed overwhelmingly, and this issue would be behind us. And, quite frankly, H.R. 6331, essentially, the Baucus Medicare bill, contains many provisions that both sides strongly support. It is troubling that only the Democrat Medicare bill is being given a vote on the Senate floor, especially when there is a Republican alternative that restores physician payments as well, especially since I believe Senators Baucus and Grassley would have worked it out long before now without all the hoopla and politicization. In addition, when the Democrat Medicare bill failed to get cloture a few weeks ago, the minority leader asked for unanimous consent to pass a 31 day extension of the December Medicare law. The purpose of this extension was to prevent the Medicare physician cuts from going into effect until we were able to work out our differences. But Senator Reid objected to this unanimous consent request for political reasons and told the Senate that he wanted the Republicans who voted against cloture to feel the heat when they went home for the Fourth of July recess. I was a little shocked at that. Fortunately, the Centers for Medicare and Medicaid Services, CMS, is delaying the Medicare reduction for physicians for 10 business days to give us more time. Unfortunately, we do not agree on one key issue--the Medicare Advantage Program. This program was created in the Medicare Modernization Act of 2003. I was on the conference committee and spent months working on Medicare Advantage. Today, Medicare Advantage provides beneficiaries with many health care choices in addition to traditional Medicare. Medicare Advantage plans are very similar to private health plans offered to those under 65 years of age. One out of five people in Medicare are on Medicare Advantage, and they love the program. The Democrat Medicare bill includes reforms to the Medicare Advantage Program that are unacceptable to both the White House and many of us who support the Medicare Advantage Program. Those of us who support Medicare Advantage feel that the provision in the Democrat Medicare bill will limit plan choices currently offered to beneficiaries. Beneficiaries participating in the Medicare Advantage Program are happy with their health care coverage. Every month, I receive hundreds of letters from my constituents telling me how much they like their Medicare Advantage plans. Medicare Advantage is working across the country. On the other hand, the Medicare+Choice program, which was the precursor to the Medicare Advantage Program, did not work very well, especially in rural areas. That was because the Federal Government did not pay plans enough money to operate in rural areas. The Utah Medicare+Choice plans left our State because plans could not function and they were losing money. At that point, Utah Medicare beneficiaries only had one choice-- traditional Medicare. And once we start disassembling the Medicare Advantage Program, as some in this body want to do, I believe that health care choices for beneficiaries will diminish. Through the Medicare Modernization Act, we finally figured out how to provide choice to Medicare beneficiaries in both rural and urban areas and how to pay plans appropriately. But my friends on the other side cannot leave a good thing alone and insist on making changes to a program that works well today and that 90 percent of beneficiaries in Medicare Advantage are satisfied with. The Democrat Medicare bill, if signed into law, will no longer allow private fee-for-service plans to deem. Deeming allows beneficiaries in private fee-for-service plans to see any Medicare provider. Deeming has been important to those living in rural areas where it is difficult for network-based plans to persuade providers to contract with them. It is also helpful to employer groups which provide retiree health coverage to those living in rural areas across the country. The elimination of deeming could take away health care coverage choices for Medicare beneficiaries living in rural States. In addition, the elimination of deeming could cause some retirees to lose their health benefits because the retirement plan cannot establish networks in all 50 States. According to America's Health Insurance Plans, known as AHIP, 21,000 Utah beneficiaries may be dropped from their current Medicare Advantage private fee-for-service plans if the provision to eliminate deeming becomes law. In fact, AHIP believes that 1.7 million seniors across the country could lose their existing health coverage if H.R. 6331 becomes law. A few weeks ago, I mentioned that one Utah employer has said that the elimination of deeming will force the company to stop offering health care coverage to almost 12,000 retirees, and that is probably the tip of the iceberg. I fear that the impact of this provision could be devastating, especially to beneficiaries living in rural States. We truly do not know the full effect of this policy and how it will affect Medicare beneficiaries across the country. Therefore, I simply cannot support this policy and it is the main reason that I am going to vote against cloture. Do not be fooled--the bill we are considering today will not be signed into law. The President has said he will veto the bill and there will not be enough votes to override his veto. I suppose some on the other side think they have a great political advantage if he vetoes the bill and we can't override it. They can use that against Republicans. This motion must be defeated for the third time. We should not have had to go to three votes. Hopefully, my colleagues on the other side of the aisle will want to work with us on a bill that can be signed into law because it would be bipartisan. We must move forward so Medicare beneficiaries will no longer worry about their doctors dropping out of the Medicare Program. We must move forward so physicians participating in the Medicare Program will not be cut by 10.6 percent. I don't think anybody in this body believes that we will allow that cut to occur; certainly, I will not. We must move forward because the American people are getting tired of a do-nothing Congress where Members are not able to work out their differences. Why don't we put all our differences aside? We could solve this in 10 minutes without making it a political fiasco which is what it has become. I think in the end everybody would be better off. Certainly, seniors who are on Medicare Advantage would continue to be better off than they would be if this very partisan bill passes through this body and is vetoed by the President and that veto is sustained. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to discuss a very important issue. First, I compliment the Senator from Texas. I agree with virtually everything he said. There are so many things we need to do around here, and we are not doing them. I will discuss an issue that each day becomes more troubling to me and also to many businesses and individuals in my home State of Utah-- and I am sure yours as well--the fact that this Congress has not yet acted to extend the tax provisions that expired at the end of last year and those that are set to expire at the end of 2008. This failure to act is rapidly reaching a state of crisis in some industries, and our continuing inability to take care of this basic problem only reinforces the public's low opinion of this institution. I believe that every member of this Senate recognizes the importance of the expired and expiring tax provisions. While there may be some items on the growing list of extenders that do not enjoy universal support, there are clearly plenty of votes to easily provide a majority or even a super-majority to pass them all, if it were not for the divisive question of offsetting the revenue loss. The list includes some important items for individuals and businesses in every State. For families, there is the election to deduct State and local sales taxes, the deduction for higher education expenses, and the deduction for the out-of-pocket expenses of school teachers. For businesses, expired or expiring provisions include those allowing faster depreciation write-offs for retail stores, restaurants, and other investment properties, a variety of important incentives that address our energy crisis, and the vital research credit, which I have championed here for many years. The expiration of the energy provisions and the research credit are particularly troubling, for they signal the loss of economic growth and jobs at the worst possible time. As with many of my colleagues and their constituents, I have Utahns telling me that important research and energy-related projects are going to be cancelled if these provisions are not quickly extended. Well, here we have a group of tax provisions that enjoys wide bipartisan support, and an economy that really needs to have access to these provisions at a time of slowdown and job loss. Many of my constituents do not get it. They are asking, why can't Congress just get it done? What is the problem? The problem is, as we all recognize, that my colleagues on the other side insist on attaching to the bill tax-raising measures in order to offset the revenue loss of the expiring provisions. And most Senators on my side of the aisle believe that tax increases are unnecessary and, in fact, ill-advised and harmful to our economy, both today and in the future. Unfortunately, we appear to have reached an impasse on this point. Contrary to what some proponents of offsets are saying about Republican motives in this matter, our stance is not about trying to protect a few wealthy hedge fund managers who are parking billions of dollars offshore in deferred compensation. Rather, we believe that this debate is about America's future prosperity. Democrats are saying that in order to be fiscally responsible, taxes need to go up to pay for the loss in revenue from keeping these tax provisions in place. Their so-called ``pay-as-you-go'' or ``pay-go,'' rules call for all revenue losses to be matched with revenue increases, or spending decreases, from somewhere else. Forget spending decreases; it just means tax increases. In theory, this sounds pretty good, and quite responsible. I am a strong believer in being fiscally responsible, and I am as loathe to pass on our huge national debt to our children as anyone in the history of the Congress. The problem is that to most Democrats, the word PAYGO is nothing more than a synonym for more taxes. We seldom, if ever, see the idea of reducing spending brought up by the other side as a way of offsetting the loss of revenue from extending these important tax provisions. In fact, there is a major flaw in the Democrats' pay-go requirement that you never hear them mention. Pay-go applies only to the revenue loss from extending the tax cuts, but not to the revenue loss from extending spending programs that expire. You might never know it from listening to the debate around here, but it is not just tax provisions that expire. Extending both tax benefits and spending programs costs Federal revenue. Why should not both be offset? However, the budget rules assume that the expiring spending provisions are automatically renewed as a matter of course, with absolutely no requirement that the lost revenue be offset. This mismatch in budget policy produces a huge bias toward bigger Government and more taxes--something my colleagues on the other side just love. Some may well ask, why shouldn't we pay for the lost revenue from extending the expired and expiring tax provisions? My answer to Utahns who ask me this question comes in three parts: First, it is wrong to raise taxes on one group of taxpayers in order to prevent another group of taxpayers from suffering an increase in taxes. Democrats and Republicans alike have resoundingly agreed with this principle in connection with the alternative minimum tax. Both parties in both Houses last year overwhelmingly passed the so-called ``AMT patch'' without offsets, and it is widely expected that we will do the same thing again this year. Second, it is wrong to offset temporary extensions of current law with permanent tax increases. The fact that this has been done year after year does not make this practice a sound one. In fact, using permanent tax increases to offset temporary extensions simply means that, in the long run, the extenders have been paid for again and again. Finally, why should we increase taxes when we are already collecting more taxes as a percentage of gross domestic product than the historical average? Despite the large tax cuts passed by Congress and signed by the President in the early part of this decade, the amount of tax collected as compared to the size of the economy just keeps increasing; yet, the majority insists on expanding the Government's pocketbook even further. At a time when gas prices have increased by 10 cents over the past two weeks to a national average of $4.07 and home foreclosures are on the rise, I believe we need to put money back in the taxpayer's pockets, not take more out. According to the other side, the pay-go rules require us to provide tax increases in order to keep the deficit from increasing. Time and again, however, the Democrats themselves admit that the pay-go rules are not practical. We all know that. For example, it was not deemed necessary to offset the revenue loss of the economic stimulus package we passed early this year. We did not offset the package of tax benefits for military personnel that was recently enacted. And there has been a long internal debate on the other side about whether unemployment benefits need to be offset. It appears to me that the Democratic pay-go requirement is more a slogan of convenience than a bedrock principle. Many in the business community are frustrated by our lack of action in extending the expired tax provisions. I understand and share this frustration with them. I have fought for years to improve, extend, and expand many of these provisions, such as the research credit. However, I believe those in the business community who are encouraging us to simply go along with the flawed bill the House of Representatives has sent us are being very shortsighted. Many in the business lobbies have looked at the offsets in that bill and have said that since they do not affect them very much, that we should go ahead and approve them. If we go along with these offsets to extend the expired provisions until the end of this year, what are we going to use to pay for next year's extension? Sure, the business community might be fine with these offsets now, but how long until we get to the offsets that really hit them hard? All of us, including the business community, need to take a longer view of this and examine the principles involved. We cannot drive our economy into the ground in the name of false fiscal responsibility. Tax increases are not the prescription to what ails our economy, particularly during this downturn and especially when revenue is already higher than the historical average. Yes, we should pass the extenders, but let us not sacrifice jobs on the altar of a flawed pay-go requirement in the process. The cost of living for Americans is becoming unbearable. In my home State of Utah, the average price of gas is $4.07, construction of new homes has ceased, and unemployment is on the rise. We should be spending less and lowering taxes, not holding back tax incentives that are vital to economic growth and job creation while raising taxes. If my colleagues on the other side want to be fiscally responsible, then I am all for it. Let us work together to identify enough spending cuts to offset the cost of extenders. But if we cannot do that, let us not hold these important tax provisions hostage to a false sense of fiscal responsibility. I notice the distinguished majority whip is here, so I will try to finish as quickly as I can.

Mr. HATCH

Mr. HATCH. I wish to say a few words about why I oppose the cloture motion on the motion to proceed on H.R. 6331, the Medicare Improvements for Patients and Providers Act. As I said last week when we were considering the cloture motion on the Baucus Medicare bill, my goal is to have bipartisan legislation signed into law by the President on July 1. Let me be clear, I wish to continue to work with my colleagues on the other side of the aisle in order to get this done. We were so close to an agreement in the Senate earlier in the week, but after the House voted on Tuesday, those discussions basically stopped, although we can put this together in 10 minutes if we work in a bipartisan way. To be honest, the House Medicare bill, H.R. 6331, contains many provisions that both sides strongly support. These provisions include restoring Medicare reimbursement rates for physicians so their Medicare payments are not reduced by 10.6 percent on July 1. Let me be clear, no one wants to cut Medicare reimbursements for doctors. We want Medicare beneficiaries to continue to have access to high-quality health care and the ability to see their own doctors. There is not just one Medicare bill. The Baucus Medicare bill; the Grassley Medicare bill, which I cosponsored; and H.R. 6331 all include provisions to restore physician payments. All three bills include provisions on e-prescribing. Mandatory e-prescribing will significantly reduce medical errors, thus protecting beneficiaries. Another issue that has overwhelming support is the delay of the competitive bidding program. I was a member of the House-Senate conference committee on the Medicare Modernization Act of 2003. Even back then, Senator Grassley and I expressed grave concerns about the inclusion of the Medicare competitive bidding program. I worried about the impact it would have on small durable medical equipment companies, particularly those in rural areas. I am still concerned because there are many unanswered questions about the bidding process and how the winning bids were selected. If we do not come to an agreement by July 1, this program will go into effect. A related issue that is included in all three Medicare bills is the elimination of the clinical lab competitive bidding program. There was broad support to repeal the clinical lab competitive bidding program as well. There are rural provisions included in all three bills that are very important to my home State of Utah, which has many rural areas. These provisions improve payments for sole community hospitals, critical access hospitals, and increase ambulance reimbursement rates in both rural and urban areas. All three bills include a policy to create a bundle payment system for end-stage renal disease, or ESRD, services provided to kidney dialysis patients. They also provide positive composite rate updates for 2 years until the bundled payment system is created. All three bills include Medicare reimbursement for six kidney disease education sessions. All versions of the Medicare legislation also include an expansion of telehealth services to skilled nursing facilities, hospital-based renal dialysis, and mental health centers. So as one can see, we agree on most all the issues. Unfortunately, there is one issue where we do not agree, and it is standing in the way of getting this legislation signed into law. H.R. 6331, the House Medicare bill, and the Baucus Medicare bill, include provisions that would reform the Medicare Advantage Program in a way that is unacceptable to both the White House and many of us who support the Medicare Advantage Program and I believe 90 percent of the people who do support that program. In 2003, I sat through hours of negotiations with administration officials, House Members, and Senate colleagues for days, weeks, and months, including Finance Committee Chairman Baucus, to create the Medicare Advantage Program to the Medicare Modernization Act of 2003. Let me remind my colleagues, before 2003, the Medicare Advantage Program, then known as Medicare+Choice, was not working very well, especially in rural parts of our country because the Medicare payments were too low. The Medicare+Choice plans serving Utah simply left because they were in the red. They were not making money and, as a result, Utah Medicare beneficiaries could only be covered by traditional Medicare. Through the MMA, we finally figured out how to provide choice to Medicare beneficiaries in both rural and urban areas. Medicare beneficiaries in Utah now have a choice in Medicare coverage they did not have before the MMA was implemented. The biggest difference between the bill before us today and the Grassley Medicare bill is the House Medicare bill, if signed into law, will no longer allow private fee-for-service plans to deem. You are probably asking: What on Earth is deeming? It is quite simple. Deeming allows beneficiaries who have opted for private fee-for- service plans the ability to see any Medicare provider because these plans do not have to establish networks. Private fee-for-service plans have provide coverage options to Medicare beneficiaries living in rural areas who previously did not have choice. In other words, the ability to deem has been especially important in rural areas, where it is difficult for network-based plans to persuade providers to contract with them and for employer groups that provide coverage for retirees living in areas across the country. The elimination of deeming could be the elimination of health care coverage choices for beneficiaries living in rural areas. It could also cause certain retirees to lose their health care coverage because employer health plans that provide coverage in all 50 States will cease to exist because they cannot establish networks. My friends who support this bill will argue they are not cutting the Medicare Advantage Program by eliminating deeming. They also will try to say that the elimination of deeming will not have an impact on health care choices offered to beneficiaries living in rural areas. I have already been told by one employer in Utah that this provision will force them to stop offering health care coverage to almost 12,000 retirees--12,000 retirees. I am worried it could hurt coverage for beneficiaries in rural areas as well. Quite honestly, we do not know the full impact of this specific policy. Therefore, I simply cannot support a provision that eliminates deeming for private fee-for-service plans, and that is one of the reasons I am going to vote against cloture. We must vote against cloture in order to ensure we can begin work on a bipartisan bill that will be signed by the President. We do not need to be wasting our time going back and forth on bills that do not have a chance of becoming law. Trust me, this bill will not be signed into law because, while the take-it-or-leave-it attitude may work over in the House, it does not work in the Senate. I urge my colleagues to vote against cloture so we may begin work on a bipartisan bill that will continue to protect choice of coverage for all beneficiaries--and I think that work would take all of 10 minutes-- including those living in urban and rural areas and those who are covered through an employer retirement plan. This motion must be defeated so we can prove to Medicare beneficiaries, Medicare providers, and our House colleagues that bipartisanship is alive and well in the Senate and that we are willing to keep working on this bill until we get it right.

Mr. HATCH

Mr. HATCH. Madam President, Congress has been working on FISA modernization since April of 2007. That is over 425 days ago. It is simply amazing to me that it would take this long. As I have often said, the Constitution of the United States was written in about 115 days, and that included travel time on horseback for the Founding Fathers. We have spent plenty of time on this issue. So why is it taking so long? Should this issue be controversial? I can only surmise that the delay is due to the ominous sounding terrorist surveillance program. That is the program where the President had the audacity to allow the intelligence community to listen to international communications where at least one person was suspected to be a member of al-Qaida--the same al-Qaida who killed nearly 3,000 innocent American civilians on September 11; the same al-Qaida who since that day has committed attacks in Istanbul, Algiers, Karachi, Islamabad, Casablanca, London, Madrid, Mombasa, the Gulf of Aden, Riyadh, Tunisia, Amman, and Bali; the same al-Qaida whose mission statement can be summed up in three words: ``Death to America.'' This is the group the President targeted. He wanted an early warning system to help prevent future attacks--a terrorist smoke detector, if you will. We often are reminded that we are fighting against an unconventional enemy, one that has asymmetrical advantages against us. Al-Qaida is not a nation state and adheres to no treaties or principles on the conduct of war. They wear no uniforms. They hide in peace-loving societies and deliberately conduct mass attacks against unarmed civilians. But we also have asymmetrical advantages. As the most technologically sophisticated Nation in history, we have huge advantages that derive from this expertise. We are also--and I certainly see this as an asymmetrical advantage over the barbarism that is al-Qaida--a nation of laws. Finally, our surveillance laws are going to be modernized so we can continue to use our own technological superiority to help prevent future attacks against our public and the public of nations that have joined us in our fight to liquidate al- Qaida. This is what the President was always intent on doing. So he initiated the terrorist surveillance program, and the administration provided appropriate briefings to the chairs and ranking members of the Senate and House Intelligence Committees and to the leaders of both parties in both Chambers. When a new Member of Congress assumed one of those positions, they were given a similar briefing. Last year, the Senate Intelligence Committee and numerous staff conducted a full review of the terrorist surveillance program and found no wrongdoing. So why has it taken us so long to get here, and what is the concern that has caused the delay; that the President listened to the international communications of al-Qaida after 9/11? No President would ever engage in this type of activity, except of course President Woodrow Wilson, who authorized interceptions of communications between Europe and the United States, and President Franklin Roosevelt, who in 1940 authorized interception of all communications into and out of the United States. I guess the fourth amendment and the media's outrage were more flexible under Democratic Presidents. But let's leave these situations aside and continue to focus on the program one of my Democratic colleagues previously called ``one of the worst abuses of executive power in our history.'' With all due respect to my colleague, if listening to the international communications of al-Qaida is one of the biggest power grabs in the country's history, then our Nation has lived a charmed existence, worthy of envy throughout the world. We should never forget the reasons for the creation of this program. It is no accident that America has not been attacked since September 11. Is it more than luck? Did al-Qaida take a hiatus from terrorist attacks? Given al-Qaida's numerous foreign attacks during this same timeframe, I think the answer is clearly no. So something must be working. Perhaps the terrorist surveillance program has played a role. But what about warrantless wiretapping? That phrase certainly means something illegal, right? Not really. As often as that phrase is repeated, what does it really mean? Does warrantless wiretapping automatically mean unconstitutional? That is certainly what we are led to believe by the hand-wringing blatteroons of the day. But this is simply not true. The fourth amendment does not proscribe warrantless searches or surveillance. It proscribes unreasonable searches or surveillance. For example, let's look at a few of the numerous warrantless searches that are performed every day: Waiting for warrantless searches at the U.S. Border Inspection Station. Look at that mess. Look at this: Waiting for warrantless searches at the U.S. Supreme Court. It is done every day that the court is in session, and even when it isn't sometimes. Waiting for warrantless searches at the National Archives. In other words, waiting to be searched before viewing the fourth amendment. This happens every day. I see that there are members of the public in the gallery above. Every last one of them went through a warrantless search just to get into this building. So the question becomes whether a warrantless search or surveillance of international communications involving al-Qaida is reasonable or, to put it another way, whether signals intelligence against a declared enemy of the United States is reasonable. In my opinion, and I think in the opinion of the vast majority of our body, it certainly is. Let's also look at what the Foreign Intelligence Surveillance Court of Review, the highest court that has considered this issue, has said: The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. That is out of in re: Sealed, case 310 F3d, 717, the FISA Court of Review, 2002. While the phrase ``warrantless wiretapping'' has been cited incessantly, there is another phrase mentioned nearly as often, and that is ``domestic spying.'' In order to better evaluate this phrase, let's look at what the President said in a December 17, 2005, radio address that described the TSP. In the weeks following the terrorist attacks on our Nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al-Qaida and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks. I don't see anything in that statement about domestic spying. I thought the definition of the word ``domestic'' was pretty clear. If the program intercepted communications in which at least one party was overseas, not to mention a member of al-Qaida, then it seems fairly obvious that those calls were--and I will emphasize this--not domestic. Is this a domestic call? A foreign terrorist calling a terrorist within the United States? I hardly think so. Is this really such a hard concept? The last time I flew overseas, I didn't fly on a domestic flight. I flew on an international flight. My last phone bill showed there is a big difference between domestic calls and international calls. Domestic spying may sound catchy and mysterious, but it is a completely inaccurate, even misleading, way to describe the TSP terrorist surveillance program--or FISA modernization. Why don't we describe them as international spying, which is what they really are? Isn't that a more accurate description? But I imagine international spying wouldn't raise the same level of fear and distrust in our Government that some on the left try to foster. So while I regret the political machination that has turned this seemingly straightforward issue on its head, I am hopeful the time for debate is finally over. Yet some have suggested Congress should not pass a bill modernizing FISA. Even after such a prolonged period and extensive debate on the issue, they would prefer that we do nothing. We are now hearing about efforts to strike or amend the immunity provisions in the compromise bill so that Members may express their views. Is this really necessary? Did the multiple times the Senate has considered and rejected similar efforts mean nothing? Look at this: The Senate has affirmed telecom civil liability protection in six separate votes. On October 18, 2007, the Senate Intelligence Committee rejects the amendment to strike the immunity provisions 12 to 3. That was bipartisan, by the way. On November 15, 2007, the Senate Judiciary Committee rejects amendment to strike immunity provisions 12 to 7. Again, bipartisan. On 12/13/07, the Senate Judiciary Committee rejects stand-alone Government substitution bill 13 to 5. On January 24, 2008, the full Senate tables the Judiciary's substitute, which does not include immunity, 60 to 36. On February 12, 2008, the full Senate rejects the amendment to substitute the Government for telecoms 68 to 30. On February 12, 2008, the full Senate rejects amendment to strike immunity provisions 67 to 31. The last time I saw that and looked at those numbers, those were all bipartisan votes. The civil liability provision in the Senate bill, which has been tweaked in this compromise, is supported by a bipartisan majority of the House and Senate, after all this hullabaloo. In addition, let us not forget the opinions of the State attorneys general who previously wrote to Congress to express their support for civil liability protection. Look at all the State attorneys general who endorse immunity. State attorney general of Wisconsin, the attorney general of Rhode Island, the attorney general of Oklahoma, the attorney general of Colorado, the attorney general of Florida, the attorney general of Alabama, the attorney general of Arkansas, the attorney general of Georgia, the attorney general of Kansas, the attorney general of my beloved home State of Utah, the attorney general of Texas, the attorney general of New Hampshire, the attorney general of Virginia, the attorney general of North Dakota, the attorney general of North Carolina, the attorney general of South Carolina, the attorney general of Pennsylvania, attorney general of South Dakota, attorney general of Nebraska, the attorney general of West Virginia, the attorney general of Washington. These are all legal officers, by the way, attorneys general of those very States. Another complaint that has been mentioned is that this bill does not have adequate oversight. We have heard allegations that: the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power. We have heard other allegations that this bill does not provide adequate protections for innocent Americans. Make no mistake. The role of the Federal judiciary into the realm of foreign intelligence gathering is greatly expanded by this legislation. So when we hear the incessant claims that this legislation lacks meaningful review, I want people to be absolutely crystal clear on the staggering amount of oversight in this bill. The Foreign Intelligence Surveillance Court was created by the 1978 FISA law for solely one purpose: This is Title 50 of the U.S. Code 1803(a): ``a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance.'' Let's think about this. It is America in 1978. The Church Committee has published information about known abuses by the Government involving surveillance against American citizens. The public wanted action. So what did the 95th Congress do? Did it create a Court with the authority to review and approve the intelligence community's foreign targeting techniques? No. Did it create a Court with the ability to review and approve the techniques used to minimize incidental interceptions involving Americans? No. Did it mandate the intelligence community to get a warrant when targeting United States persons overseas? No. But the 110th Congress will mandate each and every one of those things by passing this bill. For the first time, the FISC will review and approve targeting procedures to ensure that authorized acquisitions are limited to persons outside of the United States. For the first time, the FISC will review and approve minimization techniques. For the first time, the FISC will ensure that the foreign targeting procedures are consistent with the fourth amendment. So given the staggering amount of oversight, there must be some sweeping new surveillance authority that would necessitate these changes, right? Wrong. The ``broad new surveillance authority'' that we hear so much about is directed at one thing: the Government can target foreign citizens overseas after the FISC reviews and approves the targeting and minimization procedures. In layman's terms: the Government can listen to foreign citizens overseas to collect foreign intelligence information. That doesn't sound like broad sweeping authority to me. In fact, it is less authority than the Government had before. Let me enumerate some of the many restrictions on this authority: No. 1, the Government can't intentionally target any person known to be in the U.S. No. 2, the Government can't intentionally target a person outside the U.S. if the purpose is to target a known person in the U.S.--reverse targeting. No. 3, the Government can't acquire domestic communications in the U.S. No. 4, the targeting has to be consistent with the fourth amendment to the Constitution. And there is more: the Attorney General and the Director of National Intelligence have to develop and adopt guidelines to ensure compliance with these limitations. These guidelines must be submitted to Congressional Intelligence and Judiciary Committees as well as the FISC. The Attorney General and the Director of National Intelligence shall assess compliance with the targeting and minimization procedures at least every 6 months. This assessment must be submitted to the FISC, and the Intelligence and Judiciary committees of both chambers of Congress. The Inspectors General of the Department of Justice and each element of the intelligence community may review compliance with the targeting and minimization procedures. Finally, this bill authorizes a horde of inspectors general to conduct a full review of certain communications surveillance activities--a review that the Senate Intelligence Committee has already conducted on a bipartisan basis and found nothing wrong. Vice Chairman Bond and the other negotiators agreed to narrow the scope of this review so that there would be minimal or no operational impact on our intelligence analysts. It should come as no surprise that we want intelligence analysts to focus on analysis, not spend limited time and resources digging up documents for redundant IG reviews. So for those who criticize this bill as lacking oversight, I wonder if any level would be enough? I have no doubt that some would only be satisfied by specific individual warrants for each and every foreign terrorist overseas. This would complete the twisted logic that somehow giving complete constitutional protections to foreign terrorists leads to more protections for Americans. Do we really need to remind people that foreign citizens outside of our country, particularly members of terrorist organizations, enjoy no--none--no protections from our Constitution? Make no mistake about the power the FISA Court will possess in foreign intelligence gathering following passage of this bill. If the Court finds any deficiency in the certification submitted by the Attorney General or Director of National Intelligence, then the FISC can direct the Government to cease or not initiate the foreign targeting. In other words--our collection would go dark. Fortunately, the Government will be able to rightly begin acquisitions pending an appeal to the Foreign Intelligence Surveillance Court of Review. This is surely an intimidating environment for our intelligence analysts. Essentially, any accident or mistake will be highlighted to Congress. Unforgiving is not the word. I wonder how many private citizens would enjoy having policies at their jobs where any inadvertent error would result in notification to and review by Congress? I will suggest that the amount of oversight in this bill should be revisited in the future; not to increase it, but rather to mandate more realistic and appropriate levels of review. The multiple oversight initiatives in this legislation are not fulfilled by magic. It takes a tremendous amount of time and resources by the very analysts whose primary job is to track terrorists. As great as our analysts are, they can't be two places at once. There are only so many of them, and they don't have unlimited resources. It is worth noting what Director of National Intelligence McConnell said to Congress last September: Prior to the Protect America Act, we were devoting substantial expert resources towards preparing applications that needed FISA Court approval. This was an intolerable situation, as substantive experts, particularly IC subject matter and language experts, were diverted from the job of analyzing collection results and finding new leads. The leaders of our intelligence community have to make wise choices when allocating the time and expertise of analysts, and their hands should not be unnecessarily tied by Congress. Analytic expertise on target is a finite resource; a finite resource which the public must understand is rendered against an enemy whose resources and capabilities remain obscured to us, while its intent remains deadly. But I guess I shouldn't be surprised by the inclusion of these onerous oversight provisions, which no previous Congress felt the need to add. How many times have we heard claims that the Protect America Act would permit the Government to spy on innocent American families overseas on their vacations? Or innocent American soldiers overseas serving our country? Or innocent students who are simply studying abroad? Painting this type of picture only feeds the delusions of those who wear tin foil hats around their house and think that 9/11 was an inside job. Do we think so little of the fine men and women of our intelligence community that we assume they would rather target college kids in Europe than foreign terrorists bent on nihilistic violence? The absurdity of these accusations cannot be understated and we should not tolerate them. We should never forget that our intelligence analysts are not political appointees. They serve regardless of which President is in office, or which political party is represented. They take an oath to defend the Constitution. And rather than respect and trust their judgment and integrity, we layer oversight mechanisms that treat them like 16-year-olds who just got their first job and have to be birdwatched for fear they are stealing money from the cash register. Now I agree there are some instances in which we may want to target individuals studying abroad. I am not necessarily talking about institutions of higher learning like the Sorbonne, but rather terrorist training camps spread through some hostile regions of foreign countries. These are the type of schools that our intelligence community is interested in. When it comes to these students, I want to know what they are up to. Here is a good illustration: Supposed ``Graduation'' of Taliban Members on June 9, 2007. I want to know what they are about. After addressing some of the critiques of this bill by others, let me offer one of my own. This bill calls for prior court review and approval of certifications presented to the FISC before foreign intelligence collection can begin. As I have consistently stated throughout these FISA modernization discussions, I believe this principle is unjustified and unwise. The idea that the executive branch of the Government needs the explicit approval of the judiciary branch before collecting foreign intelligence information from foreign citizens in foreign countries is simply wrongheaded and is contrary to our Constitutional principles. I don't care if the President represents the Democratic party, Republican party, Green party, Independent party, or Whig party; he shouldn't need permission to track foreign terrorists. With that said, I am encouraged that the bill includes a provision which would allow collection before court review of procedures if ``exigent circumstances'' exist. Even with this provision, I am troubled that one of my Democratic colleagues in the House made the following statement last week about this provision: This is intended to be used rarely, if at all, and was included upon assurances from the administration that agrees that it shall not be used routinely. This begs the question, is tracking terrorists not an ``exigent circumstance''? I urge the executive branch to utilize this provision appropriately and as often as necessary following the informed judgment of those with the appropriate acumen to make such decisions. The phrase ``intelligence * * * may be lost'' means what it says: if the executive branch determines that we may lose intelligence while waiting for the Court to issue an order, then the Intelligence Community should do what our Nation expects: it should act and act quickly. The executive branch should not hesitate to utilize this authority because of fear of reprisal from those who may seek to advance political agendas--which we have seen plenty of, and some on this floor today. Finally, I want to highlight the extensive efforts of the negotiators of this bill in both chambers. I especially want to express my appreciation and gratitude to my friend and colleague Kit Bond, the dedicated vice chairman of the Intelligence Committee, who adeptly navigated and managed the tense and tedious negotiations to bring about the opportunity for passage of this historic legislation, the most extensive rewrite of foreign intelligence surveillance laws in 30 years. As you can tell from the tone of my remarks, I am less than pleased at some of the compromises made in these negotiations. I don't like the expansion of the judiciary branch into what I believe are activities rightly under the executive's prerogative. But I came to the Senate to achieve improvements for the American people, not to be an ideologue. My entire career as a legislator has been in recognition that compromise gets more done for the public than obstruction. The people of Utah didn't send me to the Senate to obstruct business, but to get business done. Nowhere is this more important than on matters where the Congress is enjoined by our citizens to improve the national security. I am a pragmatist, and I am a realist. Part of being a realist, these days, is to recognize that there is a disturbing backlash against the national security policies of this administration. Fueled by dissatisfaction over mistakes in Iraq, over frustration that the fight there and in Afghanistan continues into its seventh year, and that Al Qaeda remains a credible and deadly threat, many people in the majority party have gone beyond criticism to denunciation, to condemnation and obstruction. I am hoping that the general election before us will provide the opportunity for a truly grand debate on what we consider are threats, and how we believe we must continue to address them. But so far the debate has not been joined, and the rhetoric is becoming more poisonous. I have come to this floor and expressed my own criticisms of this administration, but I have never had reason to condemn them as operating in bad faith when it came to defending this Nation. I know this President. The President is a wonderfully good man. He has done everything in his power to try to protect us. He is an honest man. He has had untoward criticism from the media day in and day out. He has been deliberately maligned by people who should know better. Yes, this administration has made mistakes, but they have not been made intentionally. It is pathetic the way the media and many have treated this President. I think we have got to go back to where we respect our President and we show some degree of tolerance for the tough job that being President is. It is regrettable for me that the rhetoric around the terrorism surveillance program has devolved too often into fire but no light. So while I am concerned about some of the compromises made in this bill, I am grateful for all of the work done to bring it to a vote this week. We have to have this bill to protect the American people. I urge my colleagues to support this monumental and historic legislation. Our country continues to be both the envy of the world and the target of those who seek to advance their warped, violent ideology. We know the threats are out there. We do not have to live our lives in fear, but we should acknowledge that the world changed on September 11 and we must remain vigilant. Let's ensure that all of the dedicated and noble professionals who play a part in ensuring our liberty and safety are not hampered by partisan problems that we have the ability and responsibility to correct. The legislation before us makes an important and admirable attempt to do just that. I hope my colleagues will support this legislation and support final passage. It is overdue. It has been delayed too long. We have been playing around with this far too long. There have been so many unjust criticisms, I am sick of them, to be honest with you. It is almost as though politics has to rear its ugly head every time we turn around here. A lot of it is driven by the fact that people resent the President of the United States. They do so unjustly, without proper sense, in ways that are detrimental to our country and future presidencies that will come into office. This President has had very difficult problems to handle. I believe I am the longest serving person on the Senate Select Committee on Intelligence. I have been around a long time. I have seen a lot of things. I have tried to help prior Presidents as I have played a role on the Intelligence Committee. I have done so, I believe, without resorting to partisan attacks. We have had too many partisan attacks around here, and I think too many vicious attacks against the President and, I might add, against these unnamed, highly classified unknown, except by those in the intelligence community, telecom companies that patriotically helped our country to protect us, that have gone through untold expense, the deprivation and harm caused by the zealousness of those who believe that only they can protect the civil liberties of this country, when, in fact, that is what the telecom companies were cooperating to do. I thank all of the Intelligence Committee staffers who have played such a big role in helping this bill to come to the floor. We have a very dedicated staff on the Intelligence Committee. I have to say that in this current Intelligence Committee I have seen more partisanship than I have seen in the past. But, by and large, when we passed the original bill out of the committee, it was passed 13 to 2, and we worked together in a very good way on that committee. So I thank those staffers who worked so hard to try and help us all resolve this set of difficulties. I hope everybody in the Senate will vote for this bill and send it out with resounding victory. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I will vote for all of the Judicial nominees before us today. I want to offer a few comments about one of them and also about the current state of the judicial confirmation process. The Constitution gives authority to nominate and appoint judges to the President, not to the Senate. The Senate's role is to check the President's power, to ensure that his nominees are not crooks, cronies, or corrupt. Too often in relent years, however, Senators have tried to push our role beyond merely checking the President's power to actually highjacking the President's power. That goes too far and undermines the separation of powers which is so critical to limit government power and to keep our system of government in balance. For this reason, my perspective on the judicial confirmation process begins with substantial deference to the President, no matter which party occupies the While House or has the Senate majority. For this reason, I have voted against and worked to eliminate filibusters used to defeat majority-supported judicial nominees. And for this reason, I have voted against very few nominees during my 32 years in this body and on the Judiciary Committee. From that perspective of deference, I then look at a nominee's judicial philosophy and qualifications. Applying these criteria, my decision to support two of the nominees before us today, Raymond Kethledge to the Sixth Circuit and Stephen Murphy to the Eastern District of Michigan, was easy. My decision to support Judge Helene White's nomination to the Sixth Circuit, however, was a much closer call. Frankly, I have always believed that a President has the right to appoint judges who reflect his or her judicial philosophy. I asked Judge White detailed questions designed to explore her judicial philosophy, her understanding of the proper role of Federal appellate judges in our system of government. I want to share a few of her responses with my colleagues. I asked Judge White to comment on the notion that judges must make decisions based on the law as enacted by the people and their elected representatives, even if they personally disagree with it. Judge White agreed with this wholeheartedly, staying that judges ``should be prepared to have no constituency except the law.'' I realize this is straight out of civics 101, but there are many today who believe judges may twist and shape the Constitution and statutes into any form they please in order to achieve results they desire. In fact, some ray colleagues on the other side of the aisle have said judges must take sides, that they must favor certain ideological interests and serve certain political constituencies. I also asked Judge White whether judges may decide cases based on their personal views, sense of justice, empathy, or experience. It would be difficult to come up with a more misguided and even dangerous role for unelected judges in our system of government, but some of my friends on the other side of the aisle have endorsed that approach. To her credit, Judge White flatly rejected that activist view of a judge's role. I wanted to share these thoughts with my colleagues because some have questioned whether Judge White is the kind of judge President Bush has said he would appoint. She was, after all, first nominated to the Sixth Circuit by President Clinton whose nominees generally embraced a more activist judicial philosophy. President Bush is the first, at least during my Senate tenure, to resubmit an appeals court nominee first offered by a President of the other party. President Clinton certainly did not do that. But the Constitution gives each President the authority to make that judgment and I have always believed that there is a high bar for the Senate to withhold its consent on the basis of judicial philosophy. That perspective of deference and her answers to questions like the ones I described satisfy me on this point. Let me turn to the question of qualifications. The American Bar Associations rating of judicial nominees is more important for some than for others. My friends on the other side have consistently said the ABA rating is the gold standard for evaluating judicial nominees. I take that back. They have called the ABA rating the gold standard until they want to obstruct nominees who have received even the highest rating. Judge White's ABA rating in 2008 is higher than it is in 1997, when she was first nominated to the Sixth Circuit. At that time, some members of the ABA evaluation committee thought she was not qualified at all. This time, a majority of the evaluation committee found her well qualified and no one thought her unqualified. It is a little surprising, however, that after 26 years as a State court judge, 15 of them on the appellate bench, Judge White still has not garnered a unanimous well qualified rating from the ABA. In fact, Raymond Kethledge, the other Sixth Circuit nominee before us today, received a higher ABA rating than Judge White and he has no judicial experience at all. Judge White has never litigated a case. She has never handled clients. She has virtually no experience with Federal law issues of any kind. There have been serious concerns about her ability to manage her current docket, let alone the far busier and more complex docket she would face on the Federal bench. Perhaps these dare some of the issues that kept the ABA evaluators from giving her the highest rating. Unfortunately, Judge White did not distinguish herself in her hearing and offered the committee little to offset these and other concerns about her qualifications. The distinguished ranking member, Senator Specter, and others are detailing some of those concerns on the floor today. Some of my friends on the other side have responded that this nomination has really been pending for 11 years and that we should somehow already know enough to fill in the blanks and resolve the doubts. That is ridiculous. I have served in this body and on the Judiciary Committee for 32 years. I know of no Senator who keeps tabs on the careers, accomplishments, and record of unconfirmed nominees from previous administrations on the off chance that they might some day be renominated. We must evaluate each nominee on the current record developed through the current process. And on the question of qualifications, that record satisfies but certainly does not excite me. I respect the judgment of colleagues, especially on this side of the aisle, who look at these and other issues and conclude that they cannot support Judge White. Voting against a nominee of your own party is a significant step. There are Senators on the other side who have served here even longer than I have who have never voted against a nominee of their party. Each of us might make that judgment for ourselves and, though it is indeed a closer call than I would like, I will vote to confirm Judge White. Before I conclude, I want to make a few observations about the judicial confirmation profess with regard to Judge White's nomination in particular and judicial nominations in general. When I chaired the Judiciary Committee during the previous administration, Judge White's nomination did not receive a hearing because she lacked support from her home State Senator who served on the Judiciary Committee at the time. Similarly, Sixth Circuit nominees of the current President, including Mr. Kethledge who is before us today, did not receive a hearing because they too lacked home State Senator support. I am certainly glad that this issue has been resolve with our distinguished colleagues from Michigan so that these nominees can move forward. But I remain baffled why my following that longstanding policy is today attacked as a so-called pocket filibuster while the current chairman following that policy is praised for an exercise in senatorial courtesy. That is one of number of baffling and frustrating futures of the current judicial confirmation process. There have been seven previous Congresses during my service here that included a presidential election year. During an average of 313 days in session, 25 appeals court nominees received a hearing and 20 appeals court nominees were confirmed. Using that as our benchmark, in the current 110th Congress, we are nearly 90 percent finished with our days in session but so far less than one- third as many appeals court nominees have received a hearing and only half as any have been confirmed. It does not have to be this way, it has not been this way in the past. I hope that when the nominees before us today ire confirmed, we will turn our attention to the others who are pending some for many months and even for years, and continue doing what the American people sent us here to do. I yield the floor.

Mr. HATCH

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

Mr. HATCH

Mr. HATCH. Mr. President, I rise to pay tribute to the service of Paul Clement, who recently stepped down as our Nation's 43rd Solicitor General. Paul served in that office for more than 7 years, first as Principal Deputy to Solicitor General Ted Olson, then as Acting Solicitor General, and for three years as Solicitor General. He is a good man and an excellent lawyer who was a great Solicitor General. Before speaking about Paul, let me first say a few words about the office in which he served. Congress created the Department of Justice and the position of Solicitor General in 1870. Since then, the Solicitor General is the only Federal Government officer actually required by statute to be ``learned in the law.'' As Paul put it during his confirmation hearing in April 2005, the Solicitor General sits literally at the crossroads of the separation of powers. He is an executive branch official who defends the actions of the executive and legislative branches before the judicial branch. Today, the Solicitor General represents the United States before the Supreme Court and manages the United States' participation in thousands of lower court cases. That means he must make decisions in individual cases with reference to past positions taken by the United States and vigilance about how current positions may affect the future. Such a constant, and constantly changing, set of factors makes the Solicitor General's job something like the courtroom version of multi- dimensional chess. Because of his special relationship with the Supreme Court, the Solicitor General is often referred to as the Tenth Justice. Because of its astounding breadth and depth of experience and expertise, the Solicitor General's office has been called the best law firm in America. Paul Clement stands in a line of Solicitors General that includes some of the true giants in the law and in the service of our country. They include many who also served on the federal bench such as Supreme Court Chief Justices William Howard Taft and Charles Evans Hughes; Associate Justices Stanley Reed, Robert Jackson, and Thurgood Marshall; and Circuit Judges Kenneth Starr, Wade McCree, and Walter Cummings. They include some of America's most distinguished legal academics such as Walter Dellinger, the Maggs Professor of Law at Duke; the late Erwin Griswold, dean of Harvard Law School for 31 years; and the late Rex Lee, from my own State of Utah, who was the founding dean of the J. Reuben Clark School of Law at Brigham Young University. Past Solicitors General also include those who would distinguish themselves in both the academic and judicial worlds such as Charles Fried, who has taught at Havard Law School since 1961 and served on the Supreme Judicial Court of Massachusetts; and Robert Bork, who was the Bickel Professor of Public Law at Yale and served on the U.S. Court of Appeals for the D.C. Circuit. Like Paul Clement, current Chief Justice John Roberts served as Principal Deputy Solicitor General. Paul deserves to stand among such legends. A native of Cedarburg, WI, Paul graduated from the Cedarburg public schools and went on to receive a bachelor's degree summa cum laude from the Georgetown University School of Foreign Service and a master's degree with distinction from Cambridge University. He then gave Harvard Law School a try and, sure enough, graduated from there magna cum laude after serving as Supreme Court editor of the Harvard Law Review to boot. With that record, it is not surprising that he had the opportunity to clerk for truly great judges such as Judge Laurence Silberman on the U.S. Court of Appeals for the D.C. Circuit, who recently received the Presidential Medal of Freedom, and Supreme Court Justice Antonin Scalia. After a few years in private practice, Paul joined the United States Senate family as Chief Counsel of the Judiciary Subcommittee on the Constitution, Federalism, and Property Rights, chaired by our former colleague and former Attorney General John Ashcroft. I chaired the Judiciary Committee at the time and remember Paul not only as a smart and hardworking lawyer but as a thoughtful, humble, and truly decent person. It is easy to find someone with either professional talents or personal qualities, but a rare gift to have someone like Paul who has both. After leaving the Senate, Paul returned to private practice and headed the appellate practice group of the distinguished law firm of King & Spalding before joining the Solicitor General's office. A far less impressive record spread over a lifetime would suffice for most, but Paul does not achieve the ripe old age of 42 until next week. Three members of this body have been serving here since before Paul Clement was born. Why, the Senator from West Virginia, Mr. Byrd, was in his second term when young Paul came into the world. The Senator from Paul's home State of Wisconsin, Mr. Feingold, my colleague on both the Judiciary and Intelligence Committees, introduced and praised Paul at his confirmation hearing. He noted that Paul would be the youngest Solicitor General in more than 50 years and one of the youngest in American history. I do not want to belabor the point, but as I become a more seasoned citizen myself, I am impressed with how much some of these young people can accomplish. Oh, I forgot one item on Paul's jam-packed resume. Last September, Paul squeezed in a full 24 hours of service as Acting Attorney General. Fittingly, that was on September 17, which is the anniversary of both the Constitution's signing and the confirmation of Paul's former boss Justice Scalia to the Supreme Court. Paul has argued a total of 49 cases before the Supreme Court. I should perhaps say that he has so far argued 49 cases, as Paul may well return to the Supreme Court podium in the future. It is the tradition and commitment of the Solicitor General to defend acts of Congress if there is a reasonable argument to do so. No one can turn a merely reasonable argument into a compelling argument better than Paul Clement. Many who have seen him argue remark that though he speaks without notes, he has an astounding command of the facts and the law in each case. He has vigorously defended the legislation we have enacted on a wide range of issues, from the McCain-Feingold campaign finance law and the ban on partial-birth abortion to the Solomon Amendment and the Americans with Disabilities Act. I would be surprised if any of my colleagues voted for every piece of legislation Paul has defended before the Supreme Court. I know I have not. But in every case, Paul upheld the highest standards of his office by diligently defending the work of the legislative branch. And while each Solicitor General faces unique challenges and special cases, Paul's tenure coincided with the war on terror that we continue to fight. He has confronted not only novel, complex, and serious legal issues, but he has borne the burden of knowing that his efforts will dramatically affect American lives, and indeed the American way of life itself. Paul's combination of experience allowed him to do some truly unique things as Solicitor General. When he earlier served on the Judiciary Committee staff, for example, Paul worked hard on the development and passage of the Religious Land Use and Institutionalized Persons Act. I introduced that legislation after the Supreme Court struck down previous efforts to protect religious liberty. The Senate unanimously passed the bill. Then in 2005, as Solicitor General, Paul defended the constitutionality of that law and the Supreme Court unanimously upheld it. And in the case now before the Supreme Court regarding the District of Columbia's ban on firearm possession, Paul argued before the Justice for whom he clerked regarding the opinion of the Circuit Judge for whom he clerked. Some who have compiled such an amazing resume have taken much longer to do so. Some who have done so quickly are, quite frankly, not nearly so decent and kind as Paul Clement. He and his wife Alexandra have three wonderful children, Thomas Antonio, Theodore Gerald, otherwise known as Theo, and the youngest, Paul Gregory. The little one, called P.G., made his presence known at the opening of Paul's confirmation hearing. Youngsters are known to do that. We all remember Chief Justice Roberts' son Jack doing the dance of joy when his father was sworn in at the White House. At his hearing, Paul noted that he and his wife had promised the boys Yugioh cards in what he said would be direct proportion to how well they behaved that morning. I thought the boys did quite well that day and hope they were duly rewarded. I was also touched at that hearing when Paul talked about his wife and her role in supporting his work. He said: ``Every day that she allows me to practice law outside the home while she stays home with our three boys is a personal sacrifice and an indulgence of my interests, for which I am eternally grateful.'' I am not the only one to recognize Paul Clement as a very good man and a very good lawyer or to applaud his service to our country. I ask unanimous consent to place in the Record following my remarks letters sent to me by former Solicitors General Ted Olson and Seth Waxman, the current Deputy Attorney General Mark Filip and his predecessor Paul McNulty, former Attorney General Edwin Meese, former Senator John Ashcroft, Judge Laurence Silberman, and Justice Antonin Scalia.

Mr. HATCH

Mr. HATCH. Madam President, on the campaign trail this election year one hears a lot about change and helping the middle class. But what do the professed ``change agents'' have in mind by change, and what would such changes mean for our economy and creating middle class jobs? Pending legislation in Congress sponsored by the change agents would more closely conform America's labor and employment laws to the failed European model which has saddled the French and Germans with 30 years of higher unemployment, stagnant job growth, and lower productivity. French President Nicolas Sarkozy has said workplace regulations in France are ``unjust, discourage work and job creation,'' and ``fail to bring equal opportunity'' to the middle class. German Chancellor Angela Merkel has called for reform of Germany's labor regulations for the same reasons. At a time when leaders in France and Germany are trying to reform their workplace laws and move closer to the U.S. system, do we really want to infect our country with European-style workplace regulations that could cost middle class jobs and curtail economic growth? Do we really want to become another France? For more than 70 years, union representation elections in the workplace have been supervised by career employees at the National Labor Relations Board to ensure the elections are conducted fairly and privately. The deceptively misnamed Employee Free Choice Act pending in Congress would deny employers the ability to petition for private ballot elections among their employees to determine whether or not the employees, voting by secret ballot just as in political elections, desire to be represented by a labor union. The bill would scrap our current system of private voting in secret ballot elections and replace it with a forced card check certification in which employees can be pressured by union organizers into signing union petitions, or union authorization cards at work, at home, in a bar or on the streets. Union leaders boast that this change would lead to millions of new union members, but at what cost to workplace democracy? Even worse, the bill would turn over a business's financial competitiveness to federal Government-appointed arbitrators to set wages, pension and health care benefits, work hours and other terms and conditions of employment. If, after only 90 days of bargaining, the parties themselves have not agreed on the terms of an initial union contract, the bill would mandate interest arbitration through which a federally-appointed outside arbitrator would be vested with virtually unchecked authority to impose a contract binding for 2 years on the parties, without even a ratification vote among the employees to approve its terms. Such determinations imposed on the parties will be affected by the arbitrator's own economic or social theories, often without the benefit or understanding of practical, competitive economic forces. Is that the change we need to help the middle class? Consider further the misnamed RESPECT Act, sponsored by the same professed change agents, which would impede private sector employers' ability to manage their operations through first-line supervisors. The bill would reclassify supervisors who assign or direct the work of others, and expose them to the same union contracts and work rules, union discipline, strikes and other work stoppages, as the employees they supervise, thereby creating the types of conflicts of interest that the 1947 Taft-Hartley Act wisely sought to avoid. The legislation should be renamed NO RESPECT, since it would deny supervisors the status and supervisory authority they worked hard to attain, as well as eliminating employers' right to expect the undivided loyalty of these supervisors as their agents in labor-management relations. Other bills pending in Congress, all cosponsored by change agents on the campaign trail, would radicalize U.S. employment law, resulting in the type of European paralysis that has impeded middle class job creation and economic growth in France and other countries. These bills would, however, expand one industry where unfortunately the U.S. greatly outpaces Europe: the plaintiff trial bar, which has an unsurpassed world record of bringing lawsuits, many frivolous, against employers. One bill would remove any time limits on the filing of pay discrimination claims against an employer, thus creating open-ended liability years. Another would provide unlimited employer liability for punitive damages by removing the caps on damage awards which were wisely set by the 1991 Civil Rights Act at $300,000 in exchange for amendments allowing jury trials for employment discrimination claims. Open-ended liability and unlimited damages: a plaintiff trial lawyer's dream. A third bill would undermine congressional intent with regard to the Americans with Disabilities Act by classifying virtually any physical impairment as a disability for purposes of bringing claims and lawsuits against employers. I helped lead the fight for the Americans with Disabilities Act. The courageous pioneering members of the disability community responsible for passage of the legislation were not interested in protecting temporary illnesses such as the flu, or minor impairments which could be corrected by prescription eyeglasses or medication. Now, however, by preventing consideration of mitigating factors as an affirmative legal defense, and no longer requiring that the disability affect a major life activity such as working, the new legislation would treat such minor impairments as disabilities. The effect is to trivialize the law and promote frivolous lawsuits against employers. The problem with the bill's sophistry is that if everyone is considered legally disabled, even those with easily correctable impairments, then no one is truly protected. Another pending bill is an unprecedented Federal mandate regulating an employer's decision-making. It is the closest thing to the type of workplace regulatory paralysis that has stymied the Europeans. In fact, it reportedly was modeled directly from European laws. Any time an individual employee requests a change in work schedules, including when, how long, and where the employee is scheduled to work, the so-called Working Families Flexibility Act would require employers to meet with the employee within 14 days, and thereafter, within 14 days, to provide a detailed written decision with company information. The employer's written decision would have to include, among other things the identifiable cost of the change in a term or condition of employment requested in the application, including the costs of loss of productivity, of retraining or hiring employees, or of transferring employees from one facility to another facility, and the overall financial resources involved. If the employee is dissatisfied with the employer's decision, the employee may request reconsideration and the employer must schedule another meeting, again within 14 days, with the employee accompanied by any designated representative. If the representative is unavailable, the meeting must be postponed. Thereafter, the employer must respond to the request for reconsideration in writing, stating sufficient grounds to justify the decision. But that's not all. The employee may trigger a Federal investigation, which must be undertaken by the U.S. Department of Labor and a subsequent Federal administrative hearing to review the employer's decision. This could lead to Federal enforcement actions, monetary fines against the employer, Federal court injunctions and other legal orders for employment, reinstatement, promotion, back pay, and other changes in terms and conditions of employment. How many times in a workweek does an employee ask a supervisor for a change in working hours or work schedule? For example, ``Hey, boss, I want to only work a 35 hour week'' or ``I want Fridays off in hunting season'' or ``I would prefer to work closer to home.'' If this European style, so-called right to request law were to be adopted in the United States, it would bog down the workplace with mandatory negotiation of potentially any decision affecting working hours, work schedules, or location of work with every individual employee--a union of one--and with the threat of federal investigations and legal actions. Is that the type of change we want? Labor leaders and their allies frequently point to Europe when they lobby for changes in U.S. labor and employment laws. But even a cursory look at comparative economic indicators shows that the adoption of a French or German-style labor regime actually reduces workers' job options and diminishes wages while bogging down economies and discouraging enterprise. Flexibility is a key factor in the economic dynamism of the U.S. labor market. The ease with which employers can build and rebuild their workforces provides great flexibility in innovation and response to market changes. The United States is the easiest country in the entire world in which to employ labor, according to The World Bank, and the third best country in which to do business overall. Meanwhile, U.S. labor productivity far outpaces that of France and Germany, and also Canada, Japan and the United Kingdom. The United States has not only been the most productive country in the world but has also grown in productivity at a greater rate than other developed nations. In 2006, U.S. productivity per employed person was nearly $65,000 compared to $49,000 for France and $43,000 in Germany. The U.S. has been an engine of job creation for the past 35 years despite temporary recessions, gas shortages and even terrorist attacks. Compared to workers in most of Europe, U.S. workers have more job and career options, greater upward mobility, and employment growth. Consider unemployment rates. France's jobless rate is Europe's highest. This chart shows unemployment rates for the past 15 years or so. Notice that the United State's highest unemployment rate--6.1 percent in 1994--doesn't come close to the lowest unemployment rates for France, which was 8.4 percent in 2001. For the past 15 years, the U.S. average unemployment rate was 5.1 percent, while France's was double that at 10 percent. Looking at the past few years in France, nearly 70 percent of those unemployed have been looking for work for more than six months and nearly 45 percent of them were still looking for work after a year. In Germany, about 55 percent of the unemployed is out of work for at least that long. In the United States, workers stand a better chance of getting another job and sooner. Less than 20 percent of those unemployed have been looking for a job for 6 months or longer, and only about 10 percent were looking for more than a year. For centuries, people from all over the world have been drawn to the United States for economic opportunity. While the unions and some in Congress believe that European-style labor law is what is best for workers, leaders in France and Germany know better. They understand that regulatory economic rigidities that hold out the false hope of job security often limits workers' options for finding better opportunities, makes it harder for the unemployed to find work, and discourages entrepreneurs from creating new middle class jobs. Congress cannot mandate that employers create jobs, stay in business, or even that they do not conduct business elsewhere. But in the name of change, ostensibly to help the middle class, Congress can mandate the types of harmful employment regulations that will reduce or even eliminate middle class jobs in the United States. ``Europeanization'' of U.S. labor and employment laws is not the type of change the middle class really needs. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to oppose cloture on the motion to proceed to the Baucus Medicare bill, and there is reason to oppose at this time. I will keep my comments brief, but I wish to make one point perfectly clear. I have said, time and time again, I am willing to work with my colleagues on the other side of the aisle to get a bipartisan Medicare bill through the Senate. I have always prided myself on being someone who is fair, honest, and who wants to get the job done. Unfortunately, others in this body don't seem to want to get the job done, and that disappoints me more than most of you will ever know. My biggest frustration is we are not that far apart. Both sides wish to restore physician Medicare payments so doctors are not cut by 10 percent on July 1. We also agree we need to implement the provisions on e-prescribing, electronic health records--where my home State of Utah is the leader--and value-based purchasing for Medicare providers and beneficiaries. We both believe a strong, robust rural health care package is necessary and, therefore, should be included in the Medicare package. Both the Democratic and Republican Medicare bills include marketing reforms for Medicare Advantage plans in order to ensure beneficiaries are treated with respect and are given truthful and helpful information so they may choose the Medicare Advantage plan that best suits their personal needs. Medicare Advantage has worked amazingly well. Democrats want to take the ``pay for'' out of the Medicare Advantage plans, and 90 percent of the people in this country who are on Medicare Advantage want to continue on it because they believe they are better treated. They are, as a matter of fact. It is a system that works. Why change it? We include provisions that would allow both hospital-based renal dialysis centers and skilled nursing facilities to be sites for telehealth services. As a strong supporter of telehealth services, I am very supportive of this provision, and both bills have it in. Finally, both bills extend the Special Diabetes Program for 2 more years. This program is very important to me. So as you can see, we agree on a lot. Unfortunately, the two outstanding issues, in my opinion, are Medicare beneficiary protections and offsets. The Baucus Medicare provisions include provisions that would increase Medicare beneficiary protections in the Medicare Program. It would increase the low-income subsidies for beneficiaries, extend the availability of the ``Welcome to Medicare'' physical examination from 6 months to 1 year. I wish to make it clear our side could support these beneficiary changes, but we are very concerned about the impact these changes would have on long-term entitlement spending. The prices are going to continue to ramp up all the time, and our friends on the other side don't ever seem to worry about that. With 76 million baby boomers retiring over the next three decades, the Medicare Program is already headed for serious fiscal disaster. So we need to be thoughtful about these provisions and not just do what our colleagues on the other side want to do. Therefore, we believe it makes sense to means test the Medicare Part D beneficiary premiums for higher income beneficiaries. Although my friends on the other side are constantly arguing that the rich don't pay their fair share, unfortunately, when we suggested this, colleagues on the other side of the aisle--and, in fairness, some on our side as well--objected to means testing Part D premiums. I do not understand their objections. We already means test Medicare Part B premiums, and that had bipartisan support. Making that change would not only have wealthier beneficiaries shouldering a greater share of their Part D premiums, it could also pay for some of the beneficiary protections included in the Baucus Medicare bill. It is greatly disappointing to me that our friends on the other side of the aisle are not willing to accept this offset. In fact, we have been told pointblank that they cannot support increasing Part D premiums for rich Medicare beneficiaries in order to provide more assistance and benefits to lower income seniors. That is despite the fact that they have cut some very serious programs for the poor in order to find offsets for some of the things they want to do. I am going to say it again. I do not understand it. Especially since both sides supported means-tested Medicare Part B premiums. Hopefully, we will be able to change their minds when we begin our work to improve the Medicare Program so it will be more efficient for both beneficiaries and providers. That is the reason why we should vote against cloture, so our friends on the other side have to come together with us to have a better bill, and I believe we can. The second major issue concerns the offset used in the Baucus bill to pay for its provisions. The White House has told us, time and time again, the President will only be able to accept very minimal reductions to the Medicare Advantage Program. Time and time again he has said that. Otherwise, he is going to veto the bill. That is why Senator Grassley and I have insisted the White House be included in the Senate Medicare negotiations. We do not want to send a Medicare bill to the White House that is going to be vetoed and, therefore, put the physicians' Medicare payments in jeopardy. It is another reason to vote against cloture, so we don't go through the charade we will have to go through if we don't. But that is exactly what is going to happen if the Baucus Medicare gets cloture today. It will probably pass the Senate and then be considered by the House of Representatives. The House will make changes to the bill, too, that will probably not be acceptable to the White House. Then the Senate will have to consider the Medicare bill with the House's changes before it is sent to the White House for a certain veto. It is ridiculous. Why do they have to do a partisan bill? Why not work with us, since we want to work with them? We will not have the votes to override the President's veto of the Medicare bill, so we will be back to square one and we will have wasted a lot of time and maybe even have done some very bad damage. I believe the Grassley Medicare legislation, which I strongly support, would not suffer the same fate as the Baucus legislation. That is why I believe this bill should be considered by the Senate instead of the Baucus Medicare bill. We are so close together on almost all these provisions, except for these few I have mentioned. The Grassley bill is a better bill. The President will sign it into law. I would like to take a moment to highlight the major differences between the Grassley Medicare bill and the Baucus Medicare legislation. On this chart, first, as you can see the Grassley Medicare bill encourages e-prescribing sooner rather than later. The Grassley bill requires physicians to e-prescribe by 2010, while the Baucus bill delays mandatory e-prescribing until 2011. In addition, the Grassley Medicare bill repeals the Deficit Reduction Act provision on the transfer of ownership of oxygen equipment to Medicare beneficiaries. The Baucus bill cuts Medicare payments for oxygen and oxygen equipment. It is somewhat shocking to me, but that is what they do. On durable medical equipment for competitive bidding, the Grassley bill includes a sense of the Senate to delay competitive bidding for durable medical equipment for 18 months. The Baucus Medicare proposal as filed does not even address competitive bidding. Let's go to chart No. 2. The Grassley bill also has provisions on hospital value-based purchasing. The Baucus Medicare bill does not include a similar provision. You would think we would want to go to hospital value-based purchasing. The Baucus Medicare bill reduces the Medicare reimbursement rates for power wheelchairs, of all things. The Grassley Medicare bill does not cut Medicare payments for power wheelchairs. You would think we could get together on that. The Grassley Medicare bill provides continued relief for hospitals with high numbers of undocumented individuals. The Baucus bill does not include a similar provision. Again, as anybody can plainly see, the Grassley bill is a better option. I am going to conclude with one very valid and important point. My colleagues need to vote against cloture today so we can begin work on a bipartisan bill that will be signed by the President. We do not need to be wasting our time going back and forth on a bill that does not have a chance of becoming law. In fact, we need to roll up our sleeves and get to work immediately so we can get this legislation to the White House before the July 1 deadline. Otherwise, our Medicare beneficiaries and doctors participating in the Medicare Program will lose. But you know who the biggest loser will be in this process. That is the Senate, because we have failed to do our job, therefore letting down both Medicare beneficiaries and Medicare providers. I urge my colleagues to vote against cloture to avoid this terrible situation and to take the more appropriate, better designed, and more compassionate bill. Frankly, that is what our bill is. I just hope our colleagues will see this and vote against cloture. Mr. President, I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, I appreciate the remarks of the distinguished Senator, my friend from California. She is an excellent Senator and a very good person. She certainly tries to bring both sides of the aisle together. Over the years we have had a number of disagreements, but that is part of the legislative process. However, that has never diminished the respect that I have for her. Yet the fact is, I disagree with her regarding the Supreme Court's decision. This decision, written by Justice Kennedy, gives terrorists one of the most important rights enjoyed by the people of the United States. We face difficult times ahead. Many have legitimate concerns about the prospect of closing Guantanamo Bay and then housing these alleged terrorists somewhere within the continental United States. These are not easy questions. However, I do not believe that the Supreme Court has provided the correct answer. Our government has publicly stated that there have been three instances in which waterboarding has been used. In one of those instances, it was used against a leading terrorist who actually masterminded the terrible incidents that occurred on 9/11. These are interesting and difficult issues. I certainly appreciate the anguish and the feelings of those who believe, as the distinguished Senator from California does, that we should provide these alleged terrorists every right that the American people have, in spite of the fact that these terrorists do not represent a country, do not wear a uniform, are willing to kill innocent human beings, and are willing to have their own children blow themselves up. We have never before faced these types of events in our society. Yet it is important that we not ignore them. We are dealing with people who do not abide by the norms of the world. Some concerned people ask, why should the terrorists have the rights that everybody else has? Are we not binding future Presidents who may face even greater terrorist threats? Will the next President be able to get the information we need to protect the American people? We know there are terrorists who would, if they could, not bat an eyelash as they used a nuclear weapon against the innocent. Sometimes we have to take stern measures to deal with these types of people. It is always nice to be concerned about people's feelings and about people's rights, even those of terrorists, but sometimes we have to be practical and pragmatic and do the things that have to be done to protect the American people, and our citizens overseas. These are tough issues. We should all work together to try to resolve them. There are many who will believe that the Supreme Court made the right decision and others, such as myself, who believe that the Court made a lousy decision. However, I uphold the Supreme Court, even though it was a 5-to-4 decision. Nevertheless, it is a decision by one-third of the separated powers of this country, and must be recognized as such. Having said all that, I admire my friend from California. She knows it. We have worked together on a whole raft of issues through the years. I appreciate her sincere leadership in the Senate and will always appreciate knowing her and having the experience of calling her my friend. Energy Mr. President, I want to take a few minutes to address arguments by my friends on the other side of the aisle related to energy production. Some Democrats are complaining that oil companies own tens of millions of acres of oil and gas leases on Federal lands that they are just sitting on. Now, that is an interesting way of formulating an argument because some are obviously trying to paint a picture of oil companies holding back production purposely to raise gas prices. Some Democrats have argued that the oil companies are purposefully holding back production to raise gas prices, and others are arguing that this fact makes it totally fine to close off all our good offshore oil and natural gas and all our oil shale and tar sands because there are undeveloped leases on public lands right now. Here we go again with the anti-oil agenda of the more extreme environmentalists, which the Democratic leadership has adopted as their own energy policy--or should I say anti-energy policy, which is what I believe it to be. Take oil shale alone. We have an estimated 3 trillion barrels of oil in the tristate area of Colorado, Wyoming, and my home State of Utah. There is anywhere from 800 billion at the low end to 1.6 trillion barrels that are recoverable, and recoverable at a much lower price than the $135 we are paying for oil, but we're being told we can't develop it. It is true that there are tens of millions of acres of leases held by oil companies. But it is also true that they are being developed as fast as possible. Guess what. You cannot develop a lease on Federal land unless you have a permit to drill, and there is a very large backlog in the permitting process on Federal lands. It is the job of the Bureau of Land Management to issue these permits, and I don't blame them for the backlog because they are working as hard and as fast as they can. All of the environmental work has to be done before one of these permits can be given. Our Nation happens to have very stringent environmental laws on oil and gas drilling. In the Energy Policy Act of 2005, I supported an effort pushed by the senior Senator from New Mexico, who has been one of the most prescient forces in our Senate on energy and who was chairman of the Senate Energy Committee at the time, to put more funds toward the permitting process, and that has helped to a certain degree. What proof do we have that our oil companies are trying their hardest to develop their leases? Let's look at the numbers. In the year 2000, the BLM gave out 3,413 permits for oil drilling. In 2007, just this last year, the BLM gave out 7,124 permits for oil drilling. In the year 2000, oil companies drilled 2,341 new oil wells. In 2007, again just this last year, they drilled 4,640 new wells. In other words, in the last 7 years, oil companies have more than doubled their effort to develop their leases on Federal lands. I am not sure how an industry that is literally doubling its efforts to supply our energy needs can be painted as ``sitting on their leases.'' I don't blame the liberals in Congress for not understanding this because it seems as if they get almost everything they know about energy from the most extreme environmentalists in our society who have no problem with seeing our people suffer as long as their anti-oil agenda moves forward. That is the best you can call it, an anti-oil agenda. In Utah, we have leases, and we have a lawsuit every time somebody tries to develop anything. It is ironic because the extreme environmentalists know perfectly well that oil companies are drilling as fast as they can on these leases. How can they be so sure, one may ask. I know for sure because I have watched these groups do everything in their power through protests, lawsuits, and policy changes to slow the oil companies down. The oil companies could do a much greater job if they did not have all of these lawsuits, slowdowns. The Federal Government spends a large portion of its public land management budget fighting these lawsuits. I have heard estimates that during certain periods, up to 50 percent of the Bureau of Land Management budget has gone to litigation costs. That is pathetic. Can you imagine what could be done for our habitat, our forest lands, BLM lands, and so many other things if we didn't have all of that money being spent on lawsuits? It is ridiculous for these radical groups to do everything in their power to stop energy production on our public lands and then sell an argument to liberal Members of Congress that oil companies are not trying hard enough to drill on their own leases. They would drill a lot more if they had the leases and no lawsuits in areas where they actually have leases. I have said it before and I will say it again: Our country simply cannot afford to promote an anti-oil agenda. It is an agenda that will cause the most harm to our poorest citizens. The poorest among us spend 50 percent of their income on energy prices mainly to get to work or to buy groceries. I hope my well-intentioned but sometimes misguided friends in Congress keep that in mind. We have it within our power to alleviate a lot of pressure on the price of oil. If we just announced tomorrow that we are going to go forward and do more oil and gas exploration offshore and developing our oil shale in that tristate area, the price of oil could drop simply from the announcement. The problem is that Saudi Arabia and the other countries do not have the ability to flood the world with oil and to bring the prices down anymore. There is such an insatiable demand for the current oil that is being developed. I heard familiar arguments against oil shale during the Clinton administration in 1995: It will take 10 years to develop oil shale, they said. Here we are 13 years later, and now they are saying: It will take 10 years to develop oil shale. What if we had started to do it then in a realistic fashion and we were able to get that 100,000 to 1 million barrels of oil out of each acre of oil shale in the productive areas of Colorado, Utah, and Wyoming--keep in mind, abiding by very stringent environmental concerns? It is mind-boggling to me. Yesterday, I was on a radio show in my State, one of the most popular radio shows. The announcer said: Why aren't you for the Democratic Energy bill? I briefly said: Well, it is not an energy bill, it is a regulatory bill that will stifle energy development. Back in the last years of the Carter administration, they put on a windfall profits tax that cost us 129 million barrels of oil and sent this country into a downward spiral. If you tax something, you get less of it. That is just a simple fact of life. But that is what my colleagues are doing in their ``energy'' bill. I am the author, along with some other wonderful colleagues on both sides of the aisle, of the CLEAR Act. It took us 5 years to get the CLEAR Act through, if I recall it correctly, something that should be a no-brainer for anybody. We now have the Freedom Act, which will give economic incentives for the development of plug-in hybrids and other kinds of battery-operated electric cars. I just saw one today that is all electric, it goes more than 200 miles on a charge and goes from zero to sixty in less than 4 seconds. The problem is it costs around $100,000 to buy. But future models will be cheaper, and plug-in hybrids will be affordable for average citizens. But today, and tomorrow, and for quite a while, we're going to need oil. I cannot believe we in this body cannot acknowledge that for many years from now, we are going to have to use our oil, our coal, our natural gas, and we are not going to be well off if we do not. I am proud to tell you that I believe we have some 22 natural gas- providing gas stations in Utah for natural gas-driven vehicles. We could do that all over the country. We have 22 of them, and those people are driving their vehicles--mainly Honda Civics--at a rate of 68 cents per equivalent gallon of gas. If we would move into these types of situations--yes, it would take us years to get there, and it takes oil to fill up those intervening years--if we would move that way and acknowledge that this is what we have to do, within 10 to 15 to 20 years, we would become very energy independent. If we would develop our offshore oil instead of letting China and Cuba and other countries come offshore and take our oil because we will not allow it to be done--let the States have control over it. The distinguished Presiding Officer comes from Florida. If Florida does not want energy development offshore, that is Florida's concern, as far as I am concerned. But we stop it here. There are a number of other places, such as Virginia, that would love to be able to do this and would help alleviate the dependency we have right now in our country. I wish we could get around these extremists who seem to control the liberal agenda. I wish we would work together to provide a means whereby we can overcome these problems together and keep our country strong. We are sending upwards of $700 billion every year to other countries for foreign oil, much of which comes from countries that are not all that friendly to us, and it is ridiculous. It is time that we wake up and do something about it. Mr. President, I thank my colleagues. I am sorry to have gone on. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I am grateful to the Senator for his remarks. I felt particularly bad because I went 4 or 5 minutes over on my questioning, with his agreement, and then he got cut off on his questions. I wanted the Senator to know that. I appreciate his remarks.

Mr. HATCH. Mr. President, will the Senator yield?

Mr. HATCH. Mr. President, I wish to make a few remarks regarding the recent actions by the Democratic leadership in Congress with regard to oil prices. I have no problem with Democrats calling in the oil company executives to make sure they aren't violating antitrust laws. I am convinced oil speculation contributes too much to the price of oil and we need to take a serious look at that, but focusing on those concerns alone is no substitute for a realistic energy policy. There are a number of environmental groups who just plain oppose oil production. What is worrisome is that it seems Democrats controlling Congress have adopted the anti-oil agenda of the environmental movement as an outlet of their own energy policy. So far, I have heard proposals to tax successful energy production, to investigate the oil futures markets, to ban Canadian oil imports in favor of oil from Venezuela, Russia, and the Middle East, and to call for delay after delay in the commercial production of oil shale. At times, it almost appears that the anti-oil agenda is the only element of the Democratic energy policy. Their policies would not produce one drop of oil. This so-called Energy bill they have will not produce one drop of oil. In fact, they would definitely have the opposite effect-- their bills. Is it so hard to see that less oil means higher prices and economic harm and more oil means lower prices and economic benefits? I am not sure the Democratic leadership in Congress really understands this. They seem to be completely immune to the facts when it comes to energy policy. They especially don't seem to understand that the price of oil is set by a global market. Unlike electricity, which is handled regionally in the United States, oil prices are set globally. About 75 percent of the price of gasoline is set by the global price for crude oil before it is even refined. U.S. taxes make up another 13 percent of the cost of a gallon of gas. So that explains 88 percent of the cost of the gasoline. All the refining, distribution, and marketing of the oil has to be made up in the remaining 12 percent of the cost of gasoline. Some of my colleagues on the other side of the aisle would be surprised to learn that the Federal Government already makes more on gasoline taxes than the oil companies do in profits. That is fine with me, except I think people would be astounded to find that actually happened. That is right. I hope our taxpayers remember that when we point to oil company profits. The Government is already raking in more money from oil than the oil companies are getting. Yet our Government does not explore for oil. It does not produce one drop of oil. It does not refine one drop of oil. It does not build 1 foot of oil pipeline. Yet some of my colleagues want even more money from the oil company portfolio and profits. This is where the taxpayers should be paying very close attention. If our taxpayers are smart--and I believe they are, although they are not getting the facts--their hands will be reaching to protect their wallets because guess who is paying all this money to the Government in the form of taxes on oil companies. That is right; it is our taxpayers. It is our consumers. It is Joe Smith going to the gas station. It is a pretty nasty game to tell our citizens we are taking profits from big, bad rich oil companies and then forget to tell the taxpayers they will be the ones who ultimately will bear just about every cent of any new taxes. Let's talk about these big, bad American oil companies for a minute. I wonder if the Democratic leadership in Congress is aware that 80 percent of the world's oil reserves are owned and controlled by foreign government-run corporations. If you put all the big, bad American oil companies together, they only control about 6 percent of the world's oil. That is a fact. They cannot rebut that fact. We send more than $600 billion--now approaching $700 billion--each year to countries that are a lot smarter about energy than we are because they are willing to explore and develop their own resources, and we are not. We have the Chinese coming within a few miles of our shore and taking our oil because they are willing to explore for it and reap the benefits of it--and right off our shores. We are not permitted to do that. What kind of energy policy is that? Think about it. That is $600 billion to $700 billion each year that we will never get back. But my friends on the other side of the aisle don't seem to have a problem with that. Here we are, one of the biggest energy consumers on Earth, and we send out our small-fry oil companies--with only 6 percent of the world's oil--into the world to compete with these giant national corporations and conglomerates in other countries in a global market controlled by nations that aren't necessarily our friends. Then we want to stop U.S. companies from developing all the good oil resources available in this country. We try to take away their profits, drag them in front of congressional hearings, and blame them whenever the global price goes up. I hate to tell you, but Government is one of the biggest reasons why the price of oil is so high right now--our Government. So far, we don't have actual oil shortages in the world, but we have a very low level of spare capacity. That has done a lot to raise speculation on the futures market. A lack of spare capacity means any serious disruption in the world can lead to real shortages, and the futures markets reflect that fear. Holding hearings on the futures market isn't going to make those fears go away, and it is not going to produce one drop of oil to help us or bring down the price for our consumers or help Joe Smith or Joe Jones to be able to afford gas for their cars. Investors need to know we are finding a new barrel of oil for every barrel we sell. But that is not what they are seeing. At the same time, they are seeing that ethanol has major limits as a replacement fuel. Ninety-seven percent of transportation fuel is oil. Ethanol is the only real alternative, and it makes up less than 3 percent, as far as liquid fuel goes. I am opposed to mandates for ethanol, but I have been one of the Senate's leading supporters of incentives for ethanol and other alternative transportation fuels. I am the author of the CLEAR Act, which provides economic stimulation to develop hybrid cars, and the author of the Freedom Act, which also leads to economic incentives for plug-in hybrids and other forms of high-mileage vehicles. I am one of the Senate's leading supporters for ethanol and other transportation fuels. While other folks are just blowing off about it, we have actually put language in law that increased the ability to do these fuels. But even at that, it is only 3 percent of what we need in this country. I am also a realist about the fact that there is no way ethanol can put a major dent in our need for fossil fuels. So far, it is the only major alternative fuel on which we can currently count. That may be a fact that liberals and environmentalists wish to ignore, but it is a fact. They can talk all they want about wind, solar, and geothermal, but last time I checked, planes, trucks, and ships don't run on electricity; they run on fossil fuels and so do our cars. We should be grateful that Canada has now become our largest supplier of energy. They are a friendly, stable partner on whom we can rely. They are our friends, and they are producing more and more oil from oil sands every day. Canada now holds more oil reserves than every country in the world, except Saudi Arabia. They are pumping 1.3 million barrels a day down to us, and what do the liberals in Congress want to do? They pass a law barring the Federal Government from purchasing from the oil sands in Canada. They say it is because oil sands have a big greenhouse gas footprint, but what they forget to say is, shipping fuel all the way from the Middle East also has a big greenhouse gas footprint--and probably more. But liberals would rather be dependent on the Saudis and the Russians and Venezuela than offend environmental groups. Here in the States, we have as much oil in oil shale in Utah, Colorado, and Wyoming than the rest of the world combined. We have a Federal law that layers on every available environmental protection but also would allow companies to develop this resource that is 10 times richer in oil than a normal oil well. So what do the liberals do? They put a 1-year moratorium on the release of commercial leasing regulations. Some on the other side say they don't want it to happen too fast. I do. I sure would like to be able to bring these prices down. This would bring them down. I congratulate the liberals because the existing law, which I sponsored, makes it abundantly clear that each Governor gets to decide how quickly development should move forward in their respective States, and they know that. The Democrats know that. If a Governor doesn't want to move forward on oil shale, that Governor can say no. What they are doing is making sure the Governor of Utah or Wyoming never gets a chance to make that decision. So now we have companies that have spent tens of millions of dollars in good faith, and they are just plain getting shut down by what I consider a neanderthal approach to energy in the Senate--and in the House of Representatives; let's not leave them out. They are even worse than we are, in some ways. I am talking about the liberals. How are they supposed to go out--these companies--and attract investors, when Congress is acting to stop regulations for commercial leases so they can do some of these things? Environmental elitists tend to point to concerns about water usage, land usage, wildlife habitat, and air quality--all very valid concerns. So let's have a look at them. Corn needs about 780 barrels of water for a barrel of ethanol, and more than 1,000 barrels for the equivalent of a barrel of oil. Then it needs another three barrels to turn the corn into liquid fuel. That is a crazy amount of water, but it works out all right so far because it is grown in rainy areas. But if we want to increase the amount of ethanol available, we are going to have to move toward irrigation, and then there will be major limits to how much we can afford to grow. On the other hand, to mine, process, upgrade, and do land restoration, DOE estimates that oil shale will require a total of three barrels of water for every barrel of oil. In terms of water, oil shale is hundreds of times better for the environment. Let's talk about land use and wildlife habitat. One acre of corn produces 7 to 10 barrels of ethanol, or the equivalent of 5 to 7 barrels of oil. One acre of oil shale produces 100,000 barrels to 1 million barrels of oil. Nobody disputes that, that I know. I will repeat that. I hope those concerned about land use and wildlife habitat are listening carefully. One acre of corn produces 7 to 10 barrels of ethanol, or the equivalent of 5 to 7 barrels of oil. One acre of oil shale produces 100,000 barrels to 1 million barrels of oil. In terms of land use, oil shale is at least 20,000 times better for the environment than ethanol. I am for ethanol, don't get me wrong, but think of those facts. A couple months ago, an article came out how the city of Aspen in Colorado has been besieged with building applications, equating to about $2 million worth of development a day. If we could stem the growth a little in Aspen and save, let's say, a hundred acres of those beautiful forests from all that development, and instead allow development of 100 acres of much less desirable land where the oil shale in Colorado is, we could produce up to 100 million barrels of oil with no net loss of habitat. Ironically, the local governments in Colorado's oil shale areas support oil shale development, but the liberals in the State are stopping the regulations that would allow it. Some critics of oil shale and tar sands production have raised air quality concerns. Let's be clear; there is no aspect of oil shale development that would exempt industry from any Federal or State air quality laws or regulations. In fact, these industry members plan to comply and even exceed air quality requirements. These companies also express a readiness to address climate change questions on the same schedule that other industries may be required to control carbon emissions. One Utah company is now building a pilot plant to demonstrate their ability to produce upgraded syncrude from oil shale with little or no carbon emissions. The poorest Americans spend about 50 percent of their income on energy, and not enough is being said about that. The sad thing is that the poor look to the liberals to make national policies for them, but in this case, they are being sold out. It is clear the environmentalists have an anti-oil agenda. The question for this Congress is whether we can afford to adopt that agenda as part of a national energy policy. We should be promoting all forms of alternative fuels, and I am for that. But the fact is that when it comes to transportation fuel, which is where our crisis is, we are dependent on oil, and there is no combination of alternatives that can change that right now. It would be nice to pretend we are not dependent on oil, that we can skip immediately to some yet-to-be identified alternative, 30 years down the line. But we can't. Truckers and farmers need diesel today. Moms need to get to soccer and ballet practice tonight. Americans want to visit national parks this summer. The sooner we understand this, the sooner we can address the energy crisis we are facing today. This is pathetic. We have it within our means to develop our own oil to solve our own problems, to bring these prices down, to be independent, to do the things that keep America strong, to keep our environment and economy strong, and to do it in an environmentally friendly way that is already on the books. Yet when you look at the energy program the Democrats brought up on the floor, it doesn't produce one drop of this oil that is so critical to all these needs. Yet we have it within our power to solve these problems. I hope we wake up around here and get rid of the doggone partisanship and do what we have to do to provide for the energy needs of this country. We can no longer afford to let the whacko, extreme environmentalists--who are in the game for politics, rather than to help the American people--control this country the way they do. I think it is time for our friends on both sides of the aisle to stand and say enough is enough. Let's become energy independent and energy secure. I thank my colleague from Rhode Island for allowing me this extra time. I did not have anything to do with what happened this morning, nor did I know it was going to happen. Let me say that my colleague has always been gracious and kind to me. I have a great admiration for him. I am sorry I took the extra 2 minutes.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to address the impasse--the completely avoidable impasse--that we face with regard to the Emergency Supplemental Appropriations bill, which, if I'm not mistaken, is intended to provide much-needed funds and resources for our troops serving in Iraq and Afghanistan. You'll have to pardon my confusion because, looking over the substance of the bill in front of us, it is difficult to determine exactly what purpose it is meant to serve. There has been in this and in virtually every recent election year a sensitivity among those on the other side of the aisle whenever anyone questions their support for our Nation's military and their commitment to national security. Indeed, it seems that any time these issues are mentioned, whether it is by the President, those of us in Congress, or by candidates running for office, Republicans are accused of ``questioning their patriotism'' or engaging in the ``politics of fear.'' Certainly, I don't believe that we should question the patriotism of those in the Senate majority. I believe that every one of them loves their country and that there is no one in this chamber who does not honor and respect our nation's military. However, while the majority's patriotism should not be subject to question, their judgment on these issues is fair game. Frankly, after the recent FISA debacle and now the absurd course being taken on this emergency supplemental, I believe that the Democrats in Congress have given all of us reason to question their judgment. As I stated, the purpose of this bill is to provide much-needed funding for our troops in harms way. However, it appears that the Democrats see this--not as an opportunity to support our military, but as a vehicle for unrelated, nonemergency funding for a number of their pet programs. In this time when the American people are clamoring for more fiscal discipline in Congress, the majority has decided to tack onto a war supplemental billions of dollars in domestic spending, none of which was requested by the President and all of which is unrelated to supporting the troops. For example, the bill includes $1.2 billion for a science initiative, $1 billion for government-funded energy assistance, nearly half a billion each for transportation projects and wildfires, and $200 million for the U.S. census--an event that has taken place every 10 years since 1790. They have also added more than $60 billion in mandatory spending relating to unemployment insurance extensions--in a time of very low unemployment, no less--and veterans education benefits. Now, I am sure that many of these are worthwhile endeavors deserving of the Senate's time and attention. However, they can and should all be debated separately and should not be tied to funding for the troops. Given these efforts to add such a large number of unrelated and nonemergency provisions, is it really unreasonable for the American people to conclude that supporting the troops is not the majority's highest priority? Certainly, they'll want all of us to believe otherwise. In fact, I am fairly sure that there is a Democrat somewhere watching me give this speech preparing a response that accuses me of practicing the ``politics of fear.'' But when Members of the Senate majority flatly refuse to provide resources for the troops without unrelated spending, what other conclusion is there for the rest of us to draw? It gets worse. I wish that the added funding was the worst thing about this bill. Unfortunately, it is the least of our worries. In addition to the nonemergency spending, the Democrats have once again attempted to use a bill that funds our troops as an opportunity to play armchair quarterback with the conduct of the war. The majority knows that the inclusion of this provision guarantees that the President will veto the bill. One also has to assume that they know that they do not have the votes to override such a veto. Yet, once again, we are about to send to the President a bill that conditions our support for the troops on his agreement to supplant the judgment of his military commanders with the political whims of the Senate majority. This comes at a time when even the most strident opponents of the war have begun to acknowledge our military's successes on the ground in Iraq. Even worse, it comes at a time when our men and women in uniform are in desperate need of additional funding. As we have heard, on May 5, Admiral Michael Mullen, Chairman of the Joint Chiefs of Staff, indicated that it was essential that funds be approved before the Memorial Day recess, which begins in less than 2 days. In his words, the military will ``stop paying soldiers on June 15 '' meaning that they have ``precious little flexibility'' with respect to the funds. The majority leader, in his own words, believes that not finishing the bill before the recess is ``no big deal.'' Indeed, he admits that sending the bill in its current form to the President guarantees that we will go to recess without having funded the troops. Instead of heeding the warnings of our military leaders, the majority would apparently rather subject emergency military funds to yet another partisan debate and even more election-year political wrangling. I understand that many in the majority have come to oppose this war. I, for one, do not oppose an honest, straightforward debate about our policies in Iraq and the war on terror. However, that is simply not what is going on here today. This is not a serious debate about our future in Iraq; it is a needless political maneuver aimed at appeasing the more radical elements of the Democrats' political base. Once again, I can't help but wonder about the majority party's priorities when its members purposefully and dangerously delay funding for our troops in order to make a political statement. As I stated, I will not question their patriotism, but I will continue to question their judgment. Given what has been displayed here, I believe the American people will as well.

Mr. HATCH

Mr. HATCH. Madam President, I was very interested in the distinguished Senator's remarks and her analysis. What is interesting to me is that a number of years ago Boone Pickens came to me and when oil was down around $40 a barrel, he said: Orrin, oil is going to go to 60 bucks a barrel, and it is going to go up from there to $100 a barrel. This was years ago. And I said: That is not true. He said: It is true. Well, he told me a couple of weeks ago, and this is pathetic, and said we are sending $600 billion of our money to purchase non- American oil when we have it within our grasp to create much of the oil the United States of America needs from our own American oil sources. I will cite with particularity the oil shale and tar sands in Colorado, Wyoming, and Utah. It is well established that there are 3 trillion potential barrels of oil there, and it is pretty much taken for granted that we can get at least 800 billion to almost 2 trillion barrels of oil out of that at somewhere between $40 and $60 a barrel. But because of legislative maneuvering by my friends across the aisle, we can't get regulations established to do the work that has to be done. Now, I am for every form of alternative oil. And, frankly, nobody has a right to say I am not because I am the one who passed, with some very important colleagues, the CLEAR Act. The CLEAR Act created the incentives for alternative fuels, alternative fuel vehicles and alternative fuel infrastructure that are being used right now.

Mr. HATCH. Yes.

Mr. HATCH. Well, I thank the Senator from Washington for her comments, because she has been central to this effort, especially with regard to plug-in hybrid vehicles. Now, those are a still a distance away yet, but, nevertheless, we can do it. That effort may not completely solve our energy problem, but it certainly would alleviate some of it. In addition, a number of other measures I put through are the investment tax credits to spur the development of solar, geothermal, wind, and other renewable forms of electricity. No question about it. But that alone still not going to solve our problem, especially not with liquid fuels. We had testimony yesterday from oil company executives who said if we do everything in our power on alternative fuels by 2025, or around that time, we might be able to get 20 percent of our energy needs. But in the meantime, what are our cars, trucks, trains, and planes going to run on? They have to run on oil. And we have the oil within the confines of the United States, on land and offshore, to resolve a lot of these difficulties. But it will take years even to do that, if we can get past the environmental extremists to be able to do this. In the meantime, we are losing jobs, we are losing our economy, and we are losing with respect to a lot of other problems. In the end, we are going to have to resolve it by drilling for American oil, both conventional and unconventional oil, and we have the ability to do it, and to do it in ways that make sense, that are environmentally sound, and are economical. Some of my colleagues on the other side object to Canadian oil because Canada is putting up a million barrels a day out of their tar sands, and they do not like the fact the tar sands have some carbon in them. But the fact is, Canada is going to go to 3 million barrels a day. So what do we do if we don't take Canadian oil when they are happy to sell it to us? We are going to have to go to Venezuela, Russia, the Middle East, and other places to get our oil, and many of those countries are antithetical to what we believe in and are not particularly happy about United States power in this world. Now, Mr. Pickens also predicted it is only going to be a matter of time until we are going to be called in and these oil barons from these other foreign lands, who aren't particularly enamored of the United States--in fact, if anything, they are jealous of the United States-- are going to say: You have been consuming 25 percent of the world's oil, but you only have 6 percent of the world's population. We are going to have to cut you back, especially now that they can sell all they want to China, India, and other countries that are voracious in their demands for oil. We have to wake up and realize we can't sit back and hope ethanol is going to solve this problem. We can produce about 5 billion barrels of ethanol, which is the equivalent to about 3\1/2\ billion gallons of oil. However, we consume 3\1/2\ billion gallons of gas. If we do everything in our power to do ethanol, we are not going to be able to resolve our energy problem without increasing our oil supply, too. I might add that I see some very important work being done on renewables. I talked to my friend Vinod Khosla. Vinod is building a solar thermal plant, 200 megawatts, in California that should be finished by 2010. He believes we can do that all over the place. Boone Pickens has decided that in the wind corridor from Canada right down through Texas, he could build windmills all up and down that corridor that would provide over one thousand megawatts of power, which would be very beneficial to our country, but that's electricity, not liquid fuel. We know we can find more and more natural gas on our Federal lands if we want to do it. We know how to do natural gas-driven vehicles right now. We actually have natural gas stations in Utah and we have natural gas drivers, but they are the exception to the rule. We know how to build hydrogen cars that have absolutely zero emissions, but we only have 9 million tons of hydrogen in this country. You would have to have at least 150 million tons of hydrogen to make a dent, and the only feasible way to get that much hydrogen is probably through nuclear. We are about the only major nation in the world that isn't going ahead with nuclear as we should. We know it is one of the cleanest sources of energy in the world. I personally believe we will find methodologies and ways of neutralizing nuclear waste. We can no longer afford to sit back and believe ethanol is going to solve all our problems, or wind power is going to solve all our problems, or solar power is going to solve all our problems, or that geothermal is going to solve all our problems. We have to distinguish between electricity and liquid fuels. Because of the work I have done to promote geothermal, I went out to Utah 2 weeks ago and helped dedicate the ground for the first geothermal power plant in over 20 years. This company, which is a very rare company, is going to build these all up and down Utah, where we have all kinds of geothermal prospects. It's wonderful, but it doesn't solve our liquid fuel problem. It will not get us to where we can continue to keep our economy alive in America. A lot of this has stopped because of environmental extremism. We all want clean air and clean water, and I don't think any environmentalist should start chewing me up when I am the one who helped put these bills through that have spurred on alternative energy and hybrid technologies, and I will do everything in my power to continue spurring it on. But let us make no mistakes about it, we have to have oil over the next 20, 25 years and beyond that in order to keep America strong. And to blame the big oil companies--we hear: Big oil companies--one of the Senators yesterday said: How could you do this to America? Now, let's get the facts. The big oil companies are only 6 percent of the world's deliverers of oil. The vast majority of oil that is delivered is by government- owned entities. Not ours, but foreign government-owned entities. We have made it all but impossible to drill for oil within the continental United States, especially on Federal grounds. And again, it is environmental extremism that is stopping that. I want people to have jobs. I also want to go full bore in all of these other alternative forms of energy that hopefully will alleviate some of this dependency we have, but we can alleviate a lot of our dependency by doing the oil shale work in Colorado, Wyoming, and in my home State of Utah. That needs to be done. It takes one acre to produce 5 barrels of ethanol. I'm a big fan of ethanol incentives, as I've said. However, Mr. President, do you realize how much oil can be achieved from 1 acre in oil shale in those tri-State areas? It is between 100,000 and 1 million barrels of oil. And we are just letting it sit there because we can't get the leases and my friends on the other side of the aisle are specifically blocking it. Because of liberal, excessive environmental restraints, we can't get American oil to save America. We can't drill in American waters. China is. They are coming right over to our waters and drilling for oil that we can't drill for because of these extremists. And they blame 6 percent of the world's oil-producing companies and say they are the cause of all these problems? Give me a break. It is about time we wake up. Sure, politically it sounds good, but practically and scientifically it is total bull corn, I think may be my best way of describing it. I am for all these environmental things too, but I want it to work. I don't want it to be a political exercise so one side can win over the other.

Mr. HATCH

Mr. HATCH. Now, Madam President, I want to change the subject for a minute. I need to make a few remarks on the ongoing effort to conduct something that resembles a fair and productive judicial confirmation process, which is something that is bothering me here today as well. As you can see, I am not in a good mood. It looks obvious that the commitment by leaders on the other side of the aisle to confirm three more appeals court nominees by the Memorial Day recess is not going to be met. Failure was not inevitable. There was a clear path to keep that commitment with nominees who had long ago been fully vetted, nominees who have been pending for up to 2 years, highly qualified nominees with the highest ratings from the American Bar Association and who have the support of their home State Senators. My friends on the other side of the aisle knew how to keep their commitment, but instead they chose the path of greatest resistance, the path with the greatest chance of failure. And failure is exactly what is happening. These days, we often make comparisons between how President Bush's nominees are being treated today and how President Clinton's nominees were treated. Now here is one more comparison to consider. In November 1999, Majority Leader Trent Lott promised to hold a vote by May 15, 2000 on two of President Clinton's most controversial judicial nominees, with my consent as the Judiciary Committee chairman, Richard Paez and Marsha Berzon to the Ninth Circuit, two very liberal nominees. These nominees were opposed by hundreds of grassroots groups. Their records caused a great deal of angst among many Senators on this side of the aisle. The majority leader did not make his commitment in vague, fuzzy terms. He named names, picked dates, and stated objectives. He made a commitment and he kept it, and they both sit on the Ninth Circuit Court of Appeals to this day. They were both competent. Would I have nominated them? No. Would a Republican President have nominated them? No. But they were competent, they did have the approval of the ABA, and they deserved a vote up or down and they got it. We took a cloture vote to ensure there would be no filibuster, and confirmed those controversial nominees on March 8, 2000, a week earlier than promised. It is a very different situation today. I wish to address some other issues that highlight the current state of the judicial confirmation process. Talking about numbers, percentages, and comparisons makes some people's eyes glaze over, while others have trouble sorting out the dueling figures. If enough confusion exists, the American people might not fully appreciate what is going on. But as our former colleague from New York, the late Senator Daniel Patrick Moynihan once said--a friend of mine--``You are entitled to your own opinion but not to your own set of facts.'' I believe facts matter. I believe the truth matters. Some have claimed the Senate has confirmed 86 percent of President Bush's judicial nominees compared to only 75 percent of President Clinton's. This claim is either true or false. If you believe, as I do, that the truth matters, then it is important to know the answer. What is true? The most recent figures from the Congressional Research Service show the Senate has confirmed 85 percent of President Bush's appeals court nominees compared to 84 percent of President Clinton's nominees. That is about as nonpartisan and objective a source as you can find. It turns out the Senate confirmed, not 75 percent of President Clinton's judicial nominees but 84 percent. No matter how you slice, dice or spin it, this claim is not true. Another claim often repeated on the Senate floor by Democrats is that when I chaired the Judiciary Committee, I blocked more than 60 of President Clinton's judicial nominees by denying them a hearing. Some claims, apparently, need not be true as long as they are useful. In this one, the judicial confirmation version of the urban myth seems useful indeed, based on the number of times it is repeated in various versions and permutations. This claim is no more true than the first one I mentioned. Some Clinton nominees were not confirmed. Some nominees of every President are not confirmed. In 1992, George Herbert Walker Bush left office, the Senate was controlled by the same party as today, the Democratic Party, and returned more than 50 unconfirmed judicial nominees to President Bush. I don't recall that we stood and moaned and groaned like is going on today, at this time. We didn't. The fact is, that is what happens at the end of a Presidential term. The claim being made today, however, is all those unconfirmed Clinton nominees could have been confirmed but were not, solely because I, as chairman, refused to give them hearings. This is one of those claims that some apparently hope no one will bother to unpack and sort out. But consider this. A dozen of those nominees were not confirmed because President Clinton withdrew them. He actually withdrew them. That was not my prerogative as chairman. That was his prerogative as President. It continues to baffle me how the Judiciary Committee chairman can be blamed because nominees who no longer exist were not confirmed. Many of those unconfirmed nominees did not have the support of their home State Senators. Judiciary Committee chairmen of both parties, before me and after me, including the current chairman, do not give hearings to nominees without the support of their home State Senators. That is a matter of fact. We also hear the claim that in Presidential election years, the judicial confirmation process is, to quote the current Judiciary Committee chairman, ``far less productive.'' Once again, this claim is not true. The average number of appeals court nominees given hearings and the number of judicial nominees confirmed goes up, not down, in Presidential election years. Finally, we hear the astounding claim that Republicans are supposedly obstructing the nomination of Judge Helene White to the Sixth Circuit because we have asked her questions about her record, her qualifications, and her judicial philosophy. Judge White was nominated less than 2 months ago, and the Judiciary Committee was given just 22 days from her nomination until her hearing--a period far shorter, even, than noncontroversial nominees over the years. We had 70 days before Seventh Circuit Court nominee John Tinder's hearing, for example, and 120 days before Second Circuit nominee Debra Livingston received a hearing. We had only 22 days this time and the chairman close to waive his own rule and hold a hearing without an evaluation from the American Bar Association, something we still do not have today for Judge White. That is a party that insisted we always have the ABA evaluation in-- for Republican nominees. So written questions following the hearing were entirely in order. The number of questions asked of Judge White pales in comparison to the number of questions my friends on the other side have asked of President Bush's judicial nominees who had been pending far longer and for whom we had received an ABA--American Bar Association--evaluation. We had 112 days before Fifth Circuit nominee Jennifer Elrod's hearing, for example, more than five times longer than we had with Judge White. Yet my Democratic friends gave Judge Elrod 108 questions, far more than Judge White has received. After all that, the Senate confirmed Judge Elrod by voice vote. I might add, to mention a nonjudicial nominee, Grace Becker, who was nominated 189 days ago to head the Civil Rights Division. She has received 250 questions from my Democratic friends. I hear they are not done yet. It is as though no Republican should have the job of heading the Civil Rights Division. Grace is a former counsel on the Judiciary Committee and is well known to all of us as a woman of intellect, character, and compassion. She is a Eurasian woman with whom I think nobody can find one iota of fault. A few days ago, the current Judiciary Committee chairman said the judicial confirmation process reminded him of the fairytale, ``Goldilocks and the Three Bears.'' Sometimes it reminds me, instead, of the episode of the sitcom ``Seinfeld'' about ``Bizarro World.'' That is the world where everything up is down, left is right, and everything is not as it seems. In the ``Bizarro World'' of today's judicial confirmation process, a plan almost certain to fail is called a commitment; 84 is called 75; a senatorial courtesy see is called a pocket filibuster; being more productive is being called being less productive; and due diligence is being called obstruction. I believe the facts and the truth matter, even in the judicial confirmation process, in spite of some of this rhetoric.

Mr. HATCH

Mr. HATCH. Madam President, In February I addressed the Senate about our progress in Iraq. I categorized the results of General Petraeus' comprehensive counterinsurgency strategy as being remarkable. When General Petraeus first began to implement his strategy 16 months ago, I was optimistic. However, I must admit that I did not expect to see the level of success that has been accomplished in such a short period of time. What are those accomplishments? Al-Qaida has largely been removed from its sanctuaries in Ramadi, Fallujah, Baghdad and much of the Diyala province. I went there when all those were seemingly under Al-Qaida control. I also went back and walked the streets of Ramadi after the surge. That was the second trip. Make no mistake, these are major victories. However, what has largely gone unnoticed by the media, is that even in the less than 2 months since General Petraeus and Ambassador Crocker came before Congress, these successes have continued and expanded. Which leads me to ask the obvious question? Why, with all of these accomplishments that were attained through the blood, sweat and tears of our service members and their families, do the members on the other side of the aisle insist upon throwing it all away by setting arbitrary deadlines for the removal of the bulk of our forces from Iraq? The only logical answer is that instead of attempting to devise a cohesive strategy that achieves victory, the Democrats are more interested in pandering to the appeasement wing of their party in a misguided attempt to curry political favor. This is a strategy for defeat and national shame. I repudiate such an approach. My colleague, Senator McCain repudiates such an approach. And I believe the American people will repudiate this approach once they have all of the facts that somehow continue to escape widespread coverage by our media. Why don't they tell the truth? Why don't they tell about the successes? But before I discuss the most recent accomplishments of U.S. and Iraqi forces, I believe it is important for the American people to understand one of the elements behind our recent success. General Petraeus' strategy is based upon the classic counterinsurgency tactic of providing security to the local population, thereby enabling the government to restore services to its people. This, in turn, creates in the population a vested interest in the success of government institutions. One of the ways this is accomplished is through the use of Joint Security Stations. Under this tactic, a portion of a city, such as a neighborhood, is cordoned off then searched for insurgents. Previously, once this was accomplished, our forces would return to large forward- operating bases, usually on the periphery of that city. The result was easy to predict, the insurgents would return once the sweep had concluded. Under General Petraeus' strategy, our forces remain in the neighborhood and build Joint Security Stations, which then become home to a company-sized unit of American service members, as well as Iraqi army and police units. They live together. These facilities not only help secure the surrounding area, but simultaneously enable our forces to train and evaluate Iraqi forces. Much like the police officer walking a beat in a major city, our forces use the Joint Security Station to learn about the locale where they are assigned and can quickly adapt to meet the unique security needs of the individual community. This, in turn, permits the creation of vital infrastructure projects that provide power, clean water and schools to these newly secured areas. This instills within the people in the area a desire for the security and civil services to continue; which, in turn, strengthens the population's support for an effective government to maintain these improvements. The success of these Joint Security Stations can be seen in their creation throughout Iraq, with more than 50 of them in Baghdad alone. But, as I previously stated, since General Petraeus' testimony in February, the Coalition has only added to the accomplishments of al Anbar, Baghdad, and Diyala. At the time of General Petraeus' testimony, many lauded these successes. But many also pointed to three major challenges that continued to face the Coalition. The first major challenge was in this northern city of Mosul. Despite the fact that al-Qaida has largely been thrown out of its former sanctuaries in central Iraq, the terrorists have retreated to and are regrouping their forces in this northern city. It should also be noted that al-Qaida has used Mosul as a key logistics, transportation and financial center. In fact, Reuters has quoted U.S. military officials as saying that Mosul is al-Qaida's last major urban stronghold in Iraq. Second, the Iraqi government did not have control of the vital southern city of Basra, which was dominated by a number of Shiite factions. As my colleagues well know, Basra is home to Iraq's only seaport and the area surrounding the city is the location of much of the nation's oil wealth. Third, the Iraqi Government did not have control of a neighborhood in eastern Baghdad known as Sadr City, a predominately Shiite district that is a center of support for Moktada al-Sadr. However, since General Petraeus' testimony there have been remarkable changes in Mosul, Basra, and Sadr City. First, I must say that I am increasingly confident about the Coalition's chances for making positive advances in Mosul. Remember, shortly after the fall of Saddam Hussein's government, General Petraeus, then a major general in command of the 101st Airborne Division, was responsible for restoring order in Mosul. It was here that General Petraeus was first able to implement and refine his theories on counterinsurgency warfare and was largely successful in securing the city. Unfortunately, with the 101st's departure and the sharp reduction in the number of Coalition forces in Mosul--to as few as one American battalion--the city and surrounding area became a haven for al-Qaida. However, in mid-2007 the Coalition forces began to achieve some success. This occurred in no small part because of the increased effectiveness of the 2nd and 3rd Iraqi divisions that were assigned to the city and surrounding areas. According to the Institute for the Study of War, in May and June positive results quickly became apparent with the capture or killing of 13 al-Qaida leaders, including 6 emirs and 4 terrorist cell leaders. Yet, as al-Qaida members were being pushed out of Baghdad and al Anbar Province, the number of terrorists in Mosul was increasing. However, our forces, led by the 3rd Armored Cavalry Regiment, which replaced the 4th Brigade of the 1st Cavalry Division in December, and the Iraqi security forces have kept the pressure on. In mid-December, al-Qaida's security emir for northern Iraq was captured along with al- Qaida's security emir for Mosul. This was followed by the capture of al-Qaida's deputy emir for all of Mosul. Our successes also have been strengthened with the reinforcement of our forces by additional U.S. and Iraqi forces. This has enabled Coalition and Iraqi forces to implement the counterinsurgency strategy of utilizing Joint Security Stations in the eastern and western portions of Mosul, much like those that were so successful in Baghdad. The Iraqi Army units in Ninawa Province, of which Mosul is a major city, also have a new commander, LTG Riyadh Jalal Tawfiq. This is an important development since Lieutenant General Tawfiq played a vital role in securing Baghdad. Despite these promising developments, much remains to be accomplished. On May 10, the Coalition launched Operation Mother of Two Springs. Though it is too early to tell if this operation will have the same successes that our forces are experiencing in Baghdad, MG Mark Hertling, the commander of Multi-National Forces--North stated yesterday that daily attacks are down 85 percent since the operation began. The General also noted that the Coalition has detained more than 1,200 individuals many of whom are self-proclaimed al-Qaida members who describe themselves as ``battalion commanders . . . suicide bomb makers, foreign fighter facilitators, financiers and emirs.'' Moreover, a number of arms caches have been discovered. However, the desperation of al-Qaida appears to have increased due to Saturday's attack by two female suicide bombers. Mr. President, the battle for Mosul is being fought right now. The final outcome has yet to be decided. However, initial indications point to a successful conclusion because of the implementation of a proven counterinsurgency strategy, improvements in the Iraqi security forces and the bravery and dedication of our fighting men and women. The second major area of consternation was Basra. Until recently, Shiite groups such as the Mahdi militia--which is associated with Moktada al-Sadr--ruled the streets. In order to counter this lawlessness, Prime Minister al-Maliki launched Operation Charge of the Knights. This was a bold initiative. First, Prime Minister al-Maliki showed that he is a leader who is willing to make difficult political decisions to secure a better future for his people by traveling to Basra and taking personal charge of this operation. Second, this was a large-scale operation led and planned by Iraqi security forces to restore central government control in Basra. At first, poor planning seemed to have doomed this operation. Even General Petraeus initially stated, ``The fact is that the Iraqi operations in Basra were not properly planned . . . in the wake of recent operations, there were units and leaders found wanting in some cases . . .'' However, it appears that we all judged this operation too quickly. According to a recent article in the New York Times, ``the oil- saturated city of Basra has been transformed by its own [Iraqi security forces] surge.'' Iraqi forces ``have largely quieted the city, to the initial surprise and growing delight of many inhabitants who only a month ago shuddered under deadly clashes between Iraqi troops and Shiite militias . . . government forces have taken over Islamic militant's headquarters and halted the death squads and vice enforcers.'' It should also be noted that according to the highly respected Jane's Defence Weekly ``in areas occupied by Iraqi army forces, the government has begun a wide ranging set of operations to solidify its long-term presence.'' In fact, due in large part to the success of Operation Charge of the Knights, Jane's Defence Weekly made the following observation: ``Operation Charge of the Knights provides further evidence that the Iraqi army can fight effectively and lead operations when supported by coalition enablers such as air support, logistics, and intelligence. The Basra security operation follows other successful Iraqi army performances in the south, notably the January 2007 defeat of the Jund al-Samaa sect in pitched battles outside Karbala and the January 2008 simultaneous takedown of a dozen cultist cells from the same organization spread across Basra and Nasiriyah.'' Finally, examples of the major strides the Iraqi forces are making can be seen in the operations that were launched this week in Sadr City. Yesterday, the New York Times reported that six battalions of, ``Iraqi troops pushed deep into Sadr City. . . as the Iraqi government sought to establish control over the densely populated Shiite enclave in the Iraqi capital. The long awaited military operation, which took place without the involvement of American ground forces, was the first determined effort by the government of Prime Minister al-Maliki to assert control over the sprawling Baghdad neighborhood, which has been a bastion of support for Moktada al-Sadr. The operation comes in the wake of the government's offensive in Basra, which for the time being seems to have pacified the southern Iraqi city and restored government control.'' The New York Times goes on to report about the Sadr City operation, ``the Iraqi forces quickly assumed positions at a main thoroughfare and near major hospitals and police stations. Two companies ventured even further north to secure the Iman Ali Hospital. . . No American ground forces accompanied the Iraqi troops, not even military advisers. But the Americans shared intelligence, coached the Iraqis during the planning and provided overhead reconnaissance throughout the operation. Still, the operation was very much an Iraqi plan.'' Madam President, I believe that Ambassador Crocker summed up the situation best when he stated in his testimony: ``Al-Qaida is in retreat in Iraq, but it is not yet defeated. Al-Qaida's leaders are looking for every opportunity they can to hang on. Osama bin Ladin has called Iraq `the perfect base,' and it reminds us that a fundamental aim of al-Qaida is to establish itself in the Arab world. It almost succeeded in Iraq; we cannot allow it a second chance. . .'' The choice is clear. The men and women of our armed forces have made real and sustained progress over the past 16 months. The list of their accomplishments and the accomplishments of the Iraqi security forces grows longer every day. The balance is changing. Now, more then ever, is the time to stand behind our forces to ensure they achieve the victory of which they so deserve. I yield the floor and suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, today I rise to congratulate Senator Webb on the passage of S.22 the Post 9/11 Veterans Educational Assistance Act. This is an important piece of legislation worthy of serious consideration. However, despite its noble intent, I voted against the measure for two reasons. First, Senator Webb's legislation was attached to a massive spending amendment which, coupled with the rest of the wartime supplemental bill, exceeds the $108.1 billion expenditure limit set by the President. Therefore, for this reason, and others, I believe that the President will veto this legislation. The second reason is that I believe that Senators Graham, Burr, and McCain have offered a superior piece of legislation, S.2938 the Enhancement of Recruitment, Retention and Readjustment through Education Act. S.2938 will assist our nation's veterans by significantly improving education benefits for both those who have left the services and those who decided to make the military their career. Specifically, S.2938 will permit Guard and Reservists to more easily qualify for benefits; eliminate the $1,200 fee that servicemembers are currently required to pay in order to qualify for education benefits; and increase the annual stipend for books to $1,000. Most importantly, the Graham, Burr and McCain legislation will increase the level of monthly payments for a college education from $1,100 to $1,500. I view this as a much simpler and fairer compensation package than S.22. S.22 would provide tuition assistance equal to the sum charged by the program in which the veteran is enrolled. However, this assistance is capped at the amount of in-state tuition imposed by the most expensive public college in the same state as the school where the veteran is enrolled. Obviously, this is a very complicated funding mechanism which I fear will unnecessarily complicate the future education plans of many servicemembers. I am also concerned that such a funding scheme will adversely affect those veterans who wish to pursue educational opportunities at private and parochial colleges and universities. However, S.22 is not without its advantages, since it provides a basic housing allowance. But, the Graham, Burr and McCain bill also supports military families by enabling servicemembers and veterans the option of transferring some of those benefits to a spouse or child. This is a provision that S.22 does not contain. In final analysis these are two serious pieces of legislation that merit close scrutiny. However, in my final analysis, I believe that the Graham, Burr and McCain bill is the superior bill and I look forward to debating that measure and voting for it once the Senate returns from the Memorial Day recess. Mr. President, I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce with my good friend from Minnesota, Senator Amy Klobuchar, S. Res. 576, which would designate August 2008 as Digital Television Transition Awareness Month. Pursuant to the Digital Television Transmission and Public Safety Act of 2005, starting on February 17, 2009, full-power television stations will shut down their traditional analog signals and will broadcast in digital only. Concentrating efforts to educate consumers well in advance about both the upcoming transition and their options will ensure as smooth a transition as possible. That is why Senator Klobuchar and I, along with dozens of original cosponsors, have introduced this resolution today. I believe that the month of August is a perfect time to highlight the ongoing educational efforts about the transition to digital television next year. After all, we want to encourage those who will need to take some action to do so now, rather than wait until the last moment. Several studies indicate that many consumers who will be left without any television service after February 17, 2009, may be unaware of the transition and the Government coupon program created to defray the cost of converter boxes. While 64 percent of consumers know about the transition to digital television, 74 percent of that group has major misconceptions about the impact of the transition on their television services. The transition to digital television is especially significant to vulnerable populations such as senior citizen, low- income, and minority households. I note that television markets in the West and Midwest have the highest percentage of consumers who rely on over-the-air television signals. In Utah alone, Salt Lake City has the highest percentage of homes in a major metropolitan area, with almost one in four relying on free analog television signals. The Federal Communications Commission, FCC, recently adopted a proposal to educate consumers about the impending transition. In addition, there are many sources of information on the transition, coupon program and consumer options available on the Internet. These Web sites are comprehensive and provide links to the Government coupon program site where consumers must register to receive the coupons. However, these sites do not reach certain populations, those most likely to be affected by the transition, as effectively. Congress can and should do more, not only to educate consumers, but also to foster local outreach programs to assist these consumers as they obtain coupons or choose and install converter boxes. Designating August 2008 as Digital Television Transition Awareness Month, timed specifically to take advantage of the congressional recess, will place particular emphasis on educating consumers well in advance of the transition, and will be an integral part of the overall educational program endorsed by the FCC. I hope that this resolution will be passed and my colleagues will join me in doing all they can to make the transition from analog to digital television easier for those most affected across our Nation.