Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, the Pension Protection Act of 2006 has been a long time coming. In the Senate, the Health, Education, Labor, and Pensions Committee and the Finance Committee reported pension legislation last year. The full Senate passed pension legislation in November of 2005, The House passed pension legislation in December of 2005. We had to reconcile those bills, which was no small achievement, and then we had to consider the real concerns that some of our colleagues had about the impact of this bill in their States. But we got it done. We had our differences, but ultimately we agreed more than we disagreed. We understood the fundamental problem and sought to solve it through genuine bipartisan negotiations. We saw that our defined benefit pension system was in dire straits. Too many companies had severely underfunded pension plans. Companies had made promises to their employees, promises that those employees were depending on for their retirement. But the companies were falling short on those promises. This was not good for the bottom-line of the Pension Benefit Guaranty Corporation, PBGC, which is now, as the result of several high profile bankruptcies, running at a considerable deficit. This was not good for employees, who in the event of plan termination would receive dimes on the dollar for their pension plans. And ultimately, it was not good for the American people, who might have been stuck holding the bag if the PBGC was unable to meet its obligations. We had to act to fix this. We had to ensure that companies were putting their money where their mouths were. If they made pension promises, they had to keep them, They had to fund their plans. And this bill requires them to do just that. It was not easy. The conference committee assembled to reconcile House and Senate differences was incredibly unwieldy. We had multiple chairmen involved in both the House and the Senate. It was an important enough issue for American workers, American taxpayers, and the American economy that leadership from both the House and the Senate were involved in the negotiations. Not only Republicans and Democrats, but even the House and the Senate, did not see eye to eye on all of the issues. And our decisions would impact the business plans of some of our country's greatest corporations, the future of the defined benefit pension system, and the future retirement of American workers. But we did it. The final result of all these negotiations is a good bill. In short, we are going to require companies to fund 100 percent of their pension liabilities. This makes sense. Under current law, they are only required to fund 90 percent of their liabilities. I think that it makes sense to most Americans that if you make a promise, you should keep that promise, and companies should be funding the plans that they have promised to their employees. At the same time, we recognize that these new obligations could prove a hardship for many. So we have allowed companies with underfunded plans 7 years to make up their pension shortfalls. And for the financially struggling airlines, the opportunity to make up for their pension underfunding will be extended from ten to seventeen years. And we are going to severely curtail the practice of promising new benefits for tomorrow when you cannot even keep the promises you have already made. Employers with pension plans less than 80 percent funded will not be able to promise future additional benefits unless the earlier benefits are paid for. We shore up the multi-employer plans, which have unique funding problems. We provide legal clarity to hybrid ``cash balance'' plans that have elements of both defined benefit and defined contribution plans. Firms that administer 401(k) plans for their employers will be able to provide investment advice to employees, so long as that advice is based on an independently certified and audited computer model. And to encourage personal saving for retirement, this bill will allow companies to automatically enroll workers in 401(k) plans. This bill makes several tax incentives that encourage retirement savings permanent. Most importantly, Americans can remain confident that they will be able to rely on the increased 401(k) and IRA contribution limits established in 2001 and scheduled to expire in 2010. This is not a perfect bill. But it is a real achievement. Not only our pension system, but our entire retirement system, will be better off as a result of it. And I want to congratulate my colleague and fellow conferee, Chairman Enzi, for being able to bring everyone together in the end. I want to thank my colleague and fellow conferee, Chairman Grassley, for his persistence. Our pension system was broken. Critics might complain that nothing gets done in Washington, but our pension system is busted, and tonight, through tough bipartisan and bicameral work, we went a long way towards fixing it. It is late in an election year, and it says a good deal about our country that we could put our differences aside and tackle this important issue. The lives of American retirees, and the health of American industry, will be better as a result. Mr. Akaka. Mr. President, today I will vote not against pension reform but against the unfair tactics being used by the majority leadership in Congress. As a representative of my State of Hawaii, I must ensure that the voices of the people of Hawaii are heard and that their rights are not infringed upon or forgotten. This is an important distinction to make at this time because the vote that I cast today is in support of the rights of every member in Congress and the people they represent. It is my understanding that the House and Senate conferees were close to an agreement on the conference report to H.R. 2830, the Pension Protection Act of 2005, but without notification, the House leadership introduced H.R. 4. While this measure does include many of the decisions made by the conferees, and is in some cases an improvement from the measures passed by the House and Senate, I must vehemently object to the process that the House leadership used. In looking to our future, I must ensure that the process we follow in the Congress does not negate the voices of the minority. When the House leadership introduced H.R. 4 and then called for a vote on the measure, they sent a loud and clear message on how future measures may be considered by Congress. Supporting such a process would allow the majority to believe that they do not have to listen to anyone's concern. Rather than negotiating on legislation with all the conferees in order to amicably resolve any differences, we find ourselves looking from the outside in. This is no way in which to ensure that the ideals and beliefs for all will be given the due process of consideration that everyone deserves. For these reasons, I am voting against H.R. 4, again, not because I am against pension reform and ensuring that working men and women retain their benefits and pensions, but against the majority leadership's efforts to nullify our voices. I believe that the conferees to H.R. 2830 were close to an agreement and should have been allowed to complete action to develop a true compromise piece of legislation.

Mr. HATCH

Mr. HATCH. Mr. President, it is my privilege today to introduce legislation that attempts to right wrongs and help those who have suffered. I can think of few Americans who have suffered more than those brave World War II veterans who were subjected to slave labor conditions by Japanese industries during that difficult conflict. This legislation would provide long overdue compensation to our brave veterans who were forced into slave labor by our enemies. Some might ask: why don't these veterans seek a remedy from the courts? The answer is that they have. Unfortunately, due to decisions that were made during the Cold War, our government relinquished the right of these veterans to successfully seek redress of their grievances on this matter in our nation's courts. Regrettably, the Japanese Government has also declined to provide compensation. Today, many of these American POWs are now in their eighties and nineties. Every day, more and more of these veterans pass away without ever realizing that their country truly cares for them and wants to right the wrongs of the past. If those who remain are to receive compensation, they must receive it now or this injustice will never be righted. Remember, many of these men are the survivors of the Bataan Death March, which occurred in April of 1942 when the 70,000 Allied troops that comprised the defense of Bataan peninsula were ordered to surrender. Corregidor would fall a month later, but for the soldiers of Bataan the infamous Death March from the peninsula to holding camps throughout the Philippines was about to begin. During this march of 85 miles approximately 10,000 Allied forces were killed. American POWs in the Pacific theater are also the survivors of the ``Hell Ships'' where servicemembers were placed in cargo ships destined for Japanese industrial sites. These ships were usually incredibly overcrowded and American POWs were subject to the horrific sanitary and living conditions. After all this, when American servicemembers arrived at their destination, the majority were treated as slave labor, they faced fierce corporal punishment for minor infractions, and unnecessary starvation and cruel work environments. It is important to note that this bill, which I am honored to say is cosponsored by Senator Bingaman and Senator Biden, is not to embarrass or to ridicule the people of Japan; far from it. For over 60 years, Japan has been one of our great allies. As the ranking member on the Senate Intelligence Committee, I well know the invaluable support and assistance that Japan has rendered in the global war on terrorism, including committing hundreds of ground troops to assist in the development of Iraq's infrastructure. I know that all Americans are grateful for this assistance. Mr. President, it is time to do the right thing and provide these veterans with the minimal level of compensation they deserve. I believe that this limited compensation is a debt of honor that we should not withhold.

Mr. HATCH. Mr. President, I rise today to introduce with Senator Leahy the Patent Reform Act of 2006. This bill addresses many of the issues and problems that my colleague, Senator Leahy, and I have identified through a series of hearings and discussions with stakeholders. We also had the benefit of knowing the priorities identified by Chairman Lamar Smith and Ranking Democratic Member Berman, who have introduced an analogous bill in the House. I would like to thank the Senator Leahy for all of his hard work and assistance in developing this bill and for his willingness to reach a compromise on those issues where our policy views conflicted. This bill is not perfect, and is not the bill that either I or my esteemed cosponsor would have introduced independently, but I believe that it fairly reflects a compromise between my priorities and the priorities of Senator Leahy. We have also attempted to achieve some balance between the priorities identified by the various industries and stakeholders that we consulted while formulating our policy views in this area. I am sure that further refinements will be made to this bill during the legislative process, so I would encourage those who are either pleased or displeased by any of the aspects of the bill to continue working with us to resolve any outstanding issues. This bill addresses many of the problems with the substantive, procedural, and administrative aspects of the patent system, which governs how entities here in the United States apply for, receive, and eventually make use of patents covering everything from computer chips to pharmaceuticals to medical devices to--I am told--at least one variety of crustless peanut butter and jelly sandwich. As the Founding Fathers made clear in Article 1, section 8 of the Constitution, Congress is charged with ``promot[ing] the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.'' There is a growing consensus among those who use the patent system that significant reform is needed. While there appears to be a high degree of consensus on some issues relating to patent reform--such as the advisability of creating a new post-grant review process, there are significant disagreements about other changes to the patent system and about how best to streamline patent litigation. By all accounts, patent litigation has become a significant problem in some industries. There are a number of factors in patent law that drive up the cost and uncertainty of litigation in ways that are unjustified. However, some of the principal problems and costs associated with patent litigation are not uniform across industrial sectors. This has led to substantial and sometimes vociferous disagreements about the nature of the underlying problems and, thus, what the appropriate solutions might be. We have done our best to resolve these disagreements based on our judgment about what is likely to preserve a balance between patent holders and alleged infringers in these actions. There is also substantial consensus regarding a number of basic, structural changes to the patent system. The most significant of these involves moving from our current first-to-invent system to something approximating a first-to-file rule in determining which of two conflicting inventors has the right to obtain a patent. While there is general agreement regarding some of the changes necessary to move toward a first-to-file system, there are some disagreements that remain unresolved by the current language of this bill. Although we have done our best to preserve many of the principles defining what constitutes ``prior art'' under current law, patent experts continue to disagree over whether we have achieved this goal. Additionally, shortly before introduction, a concern emerged that we had not adequately preserved the changes enacted by the Cooperative Research and Technology Enhancement Act--CREATE Act, P.L. 108-453-- involving some types of double patenting. Since Senator Leahy and I were original cosponsors of that law, I can assure you that we will be receptive to concerns in this regard and try to fix them. With that preface, I would like to discuss several of the more significant changes made to the current patent system by this bill. Sections 1 and 2 of the bill contain the short title, table of contents, and other similar provisions. Sections 3 and 4 contain amendments to implement the first-to-file rule and other changes to the manner in which patent applications are filed with the Patent and Trademark Office and the process governing the examination of applications. Much of this language is similar to language in previous bills. However, as I have mentioned, several significant issues remain unresolved, and we will continue to work with stakeholders and other members to ensure an appropriate resolution. Section 5 changes the remedies available to plaintiffs in patent infringement suits, as well as the available defenses to patent infringement. The two most substantial changes involve limitations on the availability of enhanced damages upon a showing of ``willful'' infringement by a plaintiff and a parallel limitation on the availability of unenforceability under the doctrine of ``inequitable conduct.'' Willfulness and inequitable conduct were two of the three major subjective elements that were identified in a major report on the current patent system by the National Research Council of the National Academy of Sciences. The report, entitled ``A Patent System for the 21st Century,'' recommended limiting both willfulness and the inequitable conduct defense to streamline patent litigation. We were unable to reach agreement on repealing the ``best mode'' requirement, which was the third subjective element identified both in the report and by various stakeholders, but I am hopeful that we will continue to work toward a mutually-acceptable compromise on that issue. Section 5 also contains a provision expanding ``prior user rights.'' These prior user rights are, in reality, a defense to infringement liability for those making or preparing to make commercial use of an invention prior to a patent being issued. Prior to a patent's issuance, such a user often has no way of knowing that he is--or will be-- infringing a patent. In some cases, the user has independently invented the subject matter in question, in which case it would be inequitable to subject him or her to infringement liability. Currently, the prior user defense is available only with respect to method patents. The bill expands the prior user defense to all categories of patents and makes related changes to this defense. Additionally, Section 5 contains two of the more controversial provisions in the bill. The first is a rough codification of an ``apportionment'' rule for calculation of damages. There is an existing, uncodified rule for such apportionment that exists in case law. However, codifying the rule will increase its clarity and mandate its application in all appropriate cases. The second controversial provision in this section is a mandatory fee shifting provision. The language of this provision requires courts to award attorneys' fees to a prevailing party in cases where the non- prevailing party's legal position was not substantially justified. This language is similar to the test used in the Equal Access to Justice Act. This provision is intended to discourage litigation in those cases where a plaintiff's or defendant's case is so weak as to be objectively unreasonable. Finally, this section also contains a repeal of Section 271(f) of Title 35. Under current law, either a foreign or domestic patent holder may be able to obtain damages based on foreign uses of domestically- manufactured components of an infringing article. In essence, current law provides for the extraterritorial application of domestic law in a manner that benefits foreign manufacturers and patentees in some situations. Section 6 contains procedures for instituting a new type of post- grant review preceding that will allow the validity of a patent to be challenged in an administrative proceeding conducted by the Patent and Trademark Office rather than in court litigation. Under current law, there are narrow reexamination procedures by which the PTO may reconsider a patent's validity at the request of an interested party. However, current reexamination proceedings are very limited and do not allow for a full consideration of a patent's validity. As a result, even when reexamination is available, potential litigants generally wait to challenge a patent's validity until an infringement suit has been brought despite the higher costs and prolonged uncertainty of doing so. I believe that by adopting a more robust post-grant review proceeding we are providing a more efficient means of challenging a patent's validity in an administrative proceeding. This is necessary to address systemic problems in our patent system, making post-grant review an essential component of any meaningful reform legislation. While there appears to be substantial agreement regarding the need for a more meaningful post-issuance review, there are strong disagreements over its specific attributes and scope. During hearings conducted in the Subcommittee on Intellectual Property and during meetings with stakeholders, we encountered widely disparate proposals and suggestions regarding post-grant review from stakeholders, academics, and lawmakers. At one end of the spectrum are proposals that would create a low-cost, streamlined proceeding by simply expanding the current inter partes reexamination. At the other end of the spectrum are those that would like to see the creation of specialized patent courts that would partially supplant Federal court litigation. With this bill, we have introduced a proposal that falls somewhere in between these two extremes. This bill institutes a robust post-grant opposition system. The new procedures for post-grant cancellation proceedings create a new system for challenging the validity of problematic or suspect patents, which will allow those who are concerned about infringing such a patent to test its validity in an administrative proceeding instead of waiting to assert invalidity as a defense in an infringement action. The new procedures are tiered in such a way as to encourage challenges to occur within the first year after a patent's issuance. After the one- year ``first window,'' challenges may still be brought by those who are able to demonstrate a substantial economic stake in the outcome of the proceeding. To deter piecemeal litigation, if a party institutes a proceeding after the first year, any challenge to patentability available to that party with respect to the patent must be either raised or waived. Thus, a challenger who participates in a proceeding outside the first year is estopped from raising any grounds relating to patentability that were or could have been raised in the previous challenge. In addition to the new post-grant review proceedings, language in section 9 of this bill makes substantial improvements to the existing inter partes reexamination proceeding that are based on recommendations from the PTO and stakeholders. The most significant change to the reexamination proceedings is the modification of the estoppel effect of such proceedings. Currently, participants in an inter partes reexamination are barred from subsequently raising any grounds they ``raised or could have raised.'' Thus, parties who wish to challenge a patent more than a year after its issuance will have the option of bringing a narrow challenge that will not subject them to full estoppel as an alternative to bringing a full post-grant opposition proceeding or reserving their arguments for court. This approach provides a range of alternatives to legitimate challengers, while still providing balanced protections against harassing or abusive litigation for the patentee. Section 8 would amend the current statutory provision that determines the appropriate venue for patent litigation. The intent of the venue language is to serve as a starting point for discussions as to what restrictions--if any--are appropriate on the venue in which patent cases may be brought. Section 8 also contains a provision allowing for interlocutory appeals of decisions involving the claim construction of a patent. Again, this language is intended to generate discussion about the current interplay between the Federal district and appellate courts. As both academics and the patent bar have noted, the resolution of the legal questions involving claim construction appear to be taking up a greater and greater portion of the docket of the Federal circuit court of appeals. Given the high percentage of reversals on claims construction issues, some experts believe that an interlocutory appeal of Markman decisions might allow parties to resolve disputes as to claim construction more decisively prior to proceeding to a full trial. Alternatively, other experts believe that a return to the treatment of claims construction as a mixed question of law and fact might induce more deferential review by the appellate court. Still others have suggested that increased expertise among the district court judges trying patent cases might result in a lower reversal rate. In that regard, I should note that Congressman Issa has a bill authorizing a pilot project that appears to be a promising approach to increasing the expertise of Federal judges who handle patent cases, and I am considering introducing a similar bill here in the Senate. While I am not wedded to any particular approach or combination of approaches, I believe this is an issue that should receive serious attention and consideration by Congress. Section 9 of the bill includes additional statutory changes that either implement or complement provisions found elsewhere in the bill. It also includes expanded authority for the PTO to conduct substantive rulemaking, as well as the changes to the inter partes reexamination procedures that I mentioned previously. Section 10 includes a generic effective date provision. Obviously, I will need to modify the effective dates of the various provisions in the bill once we have been able to assess the difficulty of implementing various provisions in this bill. In closing, I would like to thank my cosponsor, the senior Senator from Vermont, for all the work he has put into this bill and to compliment his intellectual property counsel, Susan Davies, for her efforts as well. I am committed to moving this legislation forward and hope that my colleagues will join me in my efforts to refine and enact this important bill.

Mr. HATCH. Mr. President, on behalf of myself and my friend and colleague, Senator Lincoln, I rise today to introduce the S Corporation Reform Act of 2006. The bill we are introducing today is a continuation of a bipartisan effort that began in the Senate over a decade ago when former Senators Pryor and Danforth, me and six other Senators, introduced the S Corporation Reform Act of 1993. We recognized then, as we do today, that S corporations are a vital and growing part of our economy and that our tax law should reflect the importance of these entities and provide tax rules that allow S corporations to grow and compete with a minimum of complexity and a maximum of flexibility. According to the latest figures available from the Small Business Administration, there were approximately 3.1 million S corporations in the United States in 2002 with a total of $3.9 trillion in revenue. There were about a half million S corporations in 1980, so the growth of these entities has been striking. Surprisingly, the growth of S corporations has continued even after the advent of the Limited Liability Company, LLC, which offers many of the same benefits, but more flexibility, as S corporations. In fact, S corporations now outnumber both C corporations and partnerships. These are predominantly small businesses in the retail and service sectors. In my home State of Utah, over half the corporations have elected subchapter S treatment. Subchapter S of the Internal Revenue Code was enacted in 1958 to help remove tax considerations from small business owners' decisions to incorporate. This elective tax treatment has been helpful to millions of small businesses over the years, particularly to those just starting out. Subchapter S provides entrepreneurs the advantage of corporate protection from liability along with the single level of tax enjoyed by partnerships and limited liability companies. However, Subchapter S in its current state contains a variety of limitations, restrictions, and pitfalls for the unwary. Even though some very important improvements have been made over the years, including many first introduced in the 1993 S Corporation Reform Act I mentioned earlier, more needs to be done to bring the tax treatment of these important businesses into the 21st century. The two biggest constraints that small businesses face are difficulties in getting access to capital and the tax burden. The bill we are introducing today addresses both of these vital issues. Small businesses create two-thirds of all new jobs in the economy and account for roughly half of the overall employment in the country. Throughout the 1990s small businesses accounted for sixty to eighty percent of all new jobs. They are especially important in industries where technological innovation is important. According to the Congressional Research Service, small firms account for nearly forty percent of all scientists, engineers, and computer specialists working in the private sector. During the most recent downturn of 2001-2002, when the state of Utah lost jobs, small businesses actually created jobs and helped soften the blow for many Utahns. Today, as our economy is booming, small businesses continue to generate the bulk of new jobs. In rural America, the role of small enterprises is even more important. Small businesses account for 90 percent of all rural establishments. In 1998, small companies employed 60 percent of rural workers and provided half of rural payrolls. Perhaps the biggest challenge facing many American businesses, but especially smaller ones, is attracting adequate capital. Unfortunately, subchapter S is currently a hindrance, rather than a help, for many corporations facing this challenge. For example, current law allows for only one class of stock for S corporations. Further, S corporations are not currently allowed to issue convertible debt, nor are they allowed to have a nonresident alien as a shareholder. Several of the provisions of the S Corporation Reform Act of 2006 are designed to alleviate these restrictions on S corporations and help them attract capital. With these changes, S corporations will be more competitive with other small enterprises doing business as partnerships or limited liability companies that do not face such barriers. Even though electing subchapter S currently offers significant tax relief to a small corporation by eliminating the corporate level of taxation, S corporations still face some significant tax burdens and a myriad of potential pitfalls and tax traps for the unwary. Some of these impediments exist in the requirements of elective S corporation status, and others are in the rules governing the day-to-day operations of the entities. In either case, these provisions can stifle growth and impede job creation. Most of the provisions in our bill aim to eliminate these barriers and make it easier for companies to elect subchapter S and to operate in this status once the election is made. The Small Business Job Protection Act of 1996 made many important changes to subchapter S. One of the most significant was to allow, for the first time, small banks to elect to be S corporations. This opened the door for many small community banks to become more competitive with other financial institutions operating in towns and neighborhoods throughout the country. The availability of Subchapter S has been a positive development in increasing the profitability and competitiveness of many community banks. Some 2,300 banks have chosen to be S corporations, representing 25 percent of all banks. However, some of the operating rules under subchapter S remain unduly inflexible, complex, and harsh on banks. The bill we introduce today attempts to address many of these challenges by clarifying and relaxing some of the operational rules that apply to S corporations. These changes are designed to make it significantly easier for community banks to take advantage of the benefits of subchapter S. In my opinion, businesses should be allowed to focus on meeting their customers' needs and maximizing their shareholders' profits, and not preoccupied with conforming to Byzantine government rules. While the corporate structure of an S corporation would not generally make sense for larger companies, the tax structure applied to S corporations is quite sensible and can serve as a model for other companies. Economists hail the single level of taxation of profits in the S corporation law as a much more efficient approach, and something that would be desirable for all enterprises. The S Corporation Reform Act of 2006 enjoys the support of a broad range of associations and trade groups, many of which have worked with us in crafting the bill. I urge my colleagues to take a close look at this bill, and to support it. Thousands of small and growing businesses in every state will benefit from the improvements included in the bill. Its enactment will lead to an increased ability of these enterprises to attract capital and create new jobs. I ask unanimous consent that the text of the bill and section-by- section explanation of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, it is my privilege today to introduce legislation that attempts to right wrongs and help those who have suffered. I can think of few Americans who have suffered more than those brave World War II veterans who were subjected to slave labor conditions by Japanese industries during that difficult conflict. This legislation would provide long overdue compensation to our brave veterans who were forced into slave labor by our enemies. Some might ask: why don't these veterans seek a remedy from the courts? The answer is that they have. Unfortunately, due to decisions that were made during the Cold War, our government relinquished the right of these veterans to successfully seek redress of their grievances on this matter in our nation's courts. Regrettably, the Japanese Government has also declined to provide compensation. Today, many of these American POWs are now in their eighties and nineties. Every day, more and more of these veterans pass away without ever realizing that their country truly cares for them and wants to right the wrongs of the past. If those who remain are to receive compensation, they must receive it now or this injustice will never be righted. Remember, many of these men are the survivors of the Bataan Death March, which occurred in April of 1942 when the 70,000 Allied troops that comprised the defense of Bataan peninsula were ordered to surrender. Corregidor would fall a month later, but for the soldiers of Bataan the infamous Death March from the peninsula to holding camps throughout the Philippines was about to begin. During this march of 85 miles approximately 10,000 Allied forces were killed. American POWs in the Pacific theater are also the survivors of the ``Hell Ships'' where servicemembers were placed in cargo ships destined for Japanese industrial sites. These ships were usually incredibly overcrowded and American POWs were subject to the horrific sanitary and living conditions. After all this, when American servicemembers arrived at their destination, the majority were treated as slave labor, they faced fierce corporal punishment for minor infractions, and unnecessary starvation and cruel work environments. It is important to note that this bill, which I am honored to say is cosponsored by Senator Bingaman and Senator Biden, is not to embarrass or to ridicule the people of Japan; far from it. For over 60 years, Japan has been one of our great allies. As the ranking member on the Senate Intelligence Committee, I well know the invaluable support and assistance that Japan has rendered in the global war on terrorism, including committing hundreds of ground troops to assist in the development of Iraq's infrastructure. I know that all Americans are grateful for this assistance. Mr. President, it is time to do the right thing and provide these veterans with the minimal level of compensation they deserve. I believe that this limited compensation is a debt of honor that we should not withhold.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce with Senator Leahy the Patent Reform Act of 2006. This bill addresses many of the issues and problems that my colleague, Senator Leahy, and I have identified through a series of hearings and discussions with stakeholders. We also had the benefit of knowing the priorities identified by Chairman Lamar Smith and Ranking Democratic Member Berman, who have introduced an analogous bill in the House. I would like to thank the Senator Leahy for all of his hard work and assistance in developing this bill and for his willingness to reach a compromise on those issues where our policy views conflicted. This bill is not perfect, and is not the bill that either I or my esteemed cosponsor would have introduced independently, but I believe that it fairly reflects a compromise between my priorities and the priorities of Senator Leahy. We have also attempted to achieve some balance between the priorities identified by the various industries and stakeholders that we consulted while formulating our policy views in this area. I am sure that further refinements will be made to this bill during the legislative process, so I would encourage those who are either pleased or displeased by any of the aspects of the bill to continue working with us to resolve any outstanding issues. This bill addresses many of the problems with the substantive, procedural, and administrative aspects of the patent system, which governs how entities here in the United States apply for, receive, and eventually make use of patents covering everything from computer chips to pharmaceuticals to medical devices to--I am told--at least one variety of crustless peanut butter and jelly sandwich. As the Founding Fathers made clear in Article 1, section 8 of the Constitution, Congress is charged with ``promot[ing] the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.'' There is a growing consensus among those who use the patent system that significant reform is needed. While there appears to be a high degree of consensus on some issues relating to patent reform--such as the advisability of creating a new post-grant review process, there are significant disagreements about other changes to the patent system and about how best to streamline patent litigation. By all accounts, patent litigation has become a significant problem in some industries. There are a number of factors in patent law that drive up the cost and uncertainty of litigation in ways that are unjustified. However, some of the principal problems and costs associated with patent litigation are not uniform across industrial sectors. This has led to substantial and sometimes vociferous disagreements about the nature of the underlying problems and, thus, what the appropriate solutions might be. We have done our best to resolve these disagreements based on our judgment about what is likely to preserve a balance between patent holders and alleged infringers in these actions. There is also substantial consensus regarding a number of basic, structural changes to the patent system. The most significant of these involves moving from our current first-to-invent system to something approximating a first-to-file rule in determining which of two conflicting inventors has the right to obtain a patent. While there is general agreement regarding some of the changes necessary to move toward a first-to-file system, there are some disagreements that remain unresolved by the current language of this bill. Although we have done our best to preserve many of the principles defining what constitutes ``prior art'' under current law, patent experts continue to disagree over whether we have achieved this goal. Additionally, shortly before introduction, a concern emerged that we had not adequately preserved the changes enacted by the Cooperative Research and Technology Enhancement Act--CREATE Act, P.L. 108-453-- involving some types of double patenting. Since Senator Leahy and I were original cosponsors of that law, I can assure you that we will be receptive to concerns in this regard and try to fix them. With that preface, I would like to discuss several of the more significant changes made to the current patent system by this bill. Sections 1 and 2 of the bill contain the short title, table of contents, and other similar provisions. Sections 3 and 4 contain amendments to implement the first-to-file rule and other changes to the manner in which patent applications are filed with the Patent and Trademark Office and the process governing the examination of applications. Much of this language is similar to language in previous bills. However, as I have mentioned, several significant issues remain unresolved, and we will continue to work with stakeholders and other members to ensure an appropriate resolution. Section 5 changes the remedies available to plaintiffs in patent infringement suits, as well as the available defenses to patent infringement. The two most substantial changes involve limitations on the availability of enhanced damages upon a showing of ``willful'' infringement by a plaintiff and a parallel limitation on the availability of unenforceability under the doctrine of ``inequitable conduct.'' Willfulness and inequitable conduct were two of the three major subjective elements that were identified in a major report on the current patent system by the National Research Council of the National Academy of Sciences. The report, entitled ``A Patent System for the 21st Century,'' recommended limiting both willfulness and the inequitable conduct defense to streamline patent litigation. We were unable to reach agreement on repealing the ``best mode'' requirement, which was the third subjective element identified both in the report and by various stakeholders, but I am hopeful that we will continue to work toward a mutually-acceptable compromise on that issue. Section 5 also contains a provision expanding ``prior user rights.'' These prior user rights are, in reality, a defense to infringement liability for those making or preparing to make commercial use of an invention prior to a patent being issued. Prior to a patent's issuance, such a user often has no way of knowing that he is--or will be-- infringing a patent. In some cases, the user has independently invented the subject matter in question, in which case it would be inequitable to subject him or her to infringement liability. Currently, the prior user defense is available only with respect to method patents. The bill expands the prior user defense to all categories of patents and makes related changes to this defense. Additionally, Section 5 contains two of the more controversial provisions in the bill. The first is a rough codification of an ``apportionment'' rule for calculation of damages. There is an existing, uncodified rule for such apportionment that exists in case law. However, codifying the rule will increase its clarity and mandate its application in all appropriate cases. The second controversial provision in this section is a mandatory fee shifting provision. The language of this provision requires courts to award attorneys' fees to a prevailing party in cases where the non- prevailing party's legal position was not substantially justified. This language is similar to the test used in the Equal Access to Justice Act. This provision is intended to discourage litigation in those cases where a plaintiff's or defendant's case is so weak as to be objectively unreasonable. Finally, this section also contains a repeal of Section 271(f) of Title 35. Under current law, either a foreign or domestic patent holder may be able to obtain damages based on foreign uses of domestically- manufactured components of an infringing article. In essence, current law provides for the extraterritorial application of domestic law in a manner that benefits foreign manufacturers and patentees in some situations. Section 6 contains procedures for instituting a new type of post- grant review preceding that will allow the validity of a patent to be challenged in an administrative proceeding conducted by the Patent and Trademark Office rather than in court litigation. Under current law, there are narrow reexamination procedures by which the PTO may reconsider a patent's validity at the request of an interested party. However, current reexamination proceedings are very limited and do not allow for a full consideration of a patent's validity. As a result, even when reexamination is available, potential litigants generally wait to challenge a patent's validity until an infringement suit has been brought despite the higher costs and prolonged uncertainty of doing so. I believe that by adopting a more robust post-grant review proceeding we are providing a more efficient means of challenging a patent's validity in an administrative proceeding. This is necessary to address systemic problems in our patent system, making post-grant review an essential component of any meaningful reform legislation. While there appears to be substantial agreement regarding the need for a more meaningful post-issuance review, there are strong disagreements over its specific attributes and scope. During hearings conducted in the Subcommittee on Intellectual Property and during meetings with stakeholders, we encountered widely disparate proposals and suggestions regarding post-grant review from stakeholders, academics, and lawmakers. At one end of the spectrum are proposals that would create a low-cost, streamlined proceeding by simply expanding the current inter partes reexamination. At the other end of the spectrum are those that would like to see the creation of specialized patent courts that would partially supplant Federal court litigation. With this bill, we have introduced a proposal that falls somewhere in between these two extremes. This bill institutes a robust post-grant opposition system. The new procedures for post-grant cancellation proceedings create a new system for challenging the validity of problematic or suspect patents, which will allow those who are concerned about infringing such a patent to test its validity in an administrative proceeding instead of waiting to assert invalidity as a defense in an infringement action. The new procedures are tiered in such a way as to encourage challenges to occur within the first year after a patent's issuance. After the one- year ``first window,'' challenges may still be brought by those who are able to demonstrate a substantial economic stake in the outcome of the proceeding. To deter piecemeal litigation, if a party institutes a proceeding after the first year, any challenge to patentability available to that party with respect to the patent must be either raised or waived. Thus, a challenger who participates in a proceeding outside the first year is estopped from raising any grounds relating to patentability that were or could have been raised in the previous challenge. In addition to the new post-grant review proceedings, language in section 9 of this bill makes substantial improvements to the existing inter partes reexamination proceeding that are based on recommendations from the PTO and stakeholders. The most significant change to the reexamination proceedings is the modification of the estoppel effect of such proceedings. Currently, participants in an inter partes reexamination are barred from subsequently raising any grounds they ``raised or could have raised.'' Thus, parties who wish to challenge a patent more than a year after its issuance will have the option of bringing a narrow challenge that will not subject them to full estoppel as an alternative to bringing a full post-grant opposition proceeding or reserving their arguments for court. This approach provides a range of alternatives to legitimate challengers, while still providing balanced protections against harassing or abusive litigation for the patentee. Section 8 would amend the current statutory provision that determines the appropriate venue for patent litigation. The intent of the venue language is to serve as a starting point for discussions as to what restrictions--if any--are appropriate on the venue in which patent cases may be brought. Section 8 also contains a provision allowing for interlocutory appeals of decisions involving the claim construction of a patent. Again, this language is intended to generate discussion about the current interplay between the Federal district and appellate courts. As both academics and the patent bar have noted, the resolution of the legal questions involving claim construction appear to be taking up a greater and greater portion of the docket of the Federal circuit court of appeals. Given the high percentage of reversals on claims construction issues, some experts believe that an interlocutory appeal of Markman decisions might allow parties to resolve disputes as to claim construction more decisively prior to proceeding to a full trial. Alternatively, other experts believe that a return to the treatment of claims construction as a mixed question of law and fact might induce more deferential review by the appellate court. Still others have suggested that increased expertise among the district court judges trying patent cases might result in a lower reversal rate. In that regard, I should note that Congressman Issa has a bill authorizing a pilot project that appears to be a promising approach to increasing the expertise of Federal judges who handle patent cases, and I am considering introducing a similar bill here in the Senate. While I am not wedded to any particular approach or combination of approaches, I believe this is an issue that should receive serious attention and consideration by Congress. Section 9 of the bill includes additional statutory changes that either implement or complement provisions found elsewhere in the bill. It also includes expanded authority for the PTO to conduct substantive rulemaking, as well as the changes to the inter partes reexamination procedures that I mentioned previously. Section 10 includes a generic effective date provision. Obviously, I will need to modify the effective dates of the various provisions in the bill once we have been able to assess the difficulty of implementing various provisions in this bill. In closing, I would like to thank my cosponsor, the senior Senator from Vermont, for all the work he has put into this bill and to compliment his intellectual property counsel, Susan Davies, for her efforts as well. I am committed to moving this legislation forward and hope that my colleagues will join me in my efforts to refine and enact this important bill.

Mr. HATCH

Mr. HATCH. Mr. President, on behalf of myself and my friend and colleague, Senator Lincoln, I rise today to introduce the S Corporation Reform Act of 2006. The bill we are introducing today is a continuation of a bipartisan effort that began in the Senate over a decade ago when former Senators Pryor and Danforth, me and six other Senators, introduced the S Corporation Reform Act of 1993. We recognized then, as we do today, that S corporations are a vital and growing part of our economy and that our tax law should reflect the importance of these entities and provide tax rules that allow S corporations to grow and compete with a minimum of complexity and a maximum of flexibility. According to the latest figures available from the Small Business Administration, there were approximately 3.1 million S corporations in the United States in 2002 with a total of $3.9 trillion in revenue. There were about a half million S corporations in 1980, so the growth of these entities has been striking. Surprisingly, the growth of S corporations has continued even after the advent of the Limited Liability Company, LLC, which offers many of the same benefits, but more flexibility, as S corporations. In fact, S corporations now outnumber both C corporations and partnerships. These are predominantly small businesses in the retail and service sectors. In my home State of Utah, over half the corporations have elected subchapter S treatment. Subchapter S of the Internal Revenue Code was enacted in 1958 to help remove tax considerations from small business owners' decisions to incorporate. This elective tax treatment has been helpful to millions of small businesses over the years, particularly to those just starting out. Subchapter S provides entrepreneurs the advantage of corporate protection from liability along with the single level of tax enjoyed by partnerships and limited liability companies. However, Subchapter S in its current state contains a variety of limitations, restrictions, and pitfalls for the unwary. Even though some very important improvements have been made over the years, including many first introduced in the 1993 S Corporation Reform Act I mentioned earlier, more needs to be done to bring the tax treatment of these important businesses into the 21st century. The two biggest constraints that small businesses face are difficulties in getting access to capital and the tax burden. The bill we are introducing today addresses both of these vital issues. Small businesses create two-thirds of all new jobs in the economy and account for roughly half of the overall employment in the country. Throughout the 1990s small businesses accounted for sixty to eighty percent of all new jobs. They are especially important in industries where technological innovation is important. According to the Congressional Research Service, small firms account for nearly forty percent of all scientists, engineers, and computer specialists working in the private sector. During the most recent downturn of 2001-2002, when the state of Utah lost jobs, small businesses actually created jobs and helped soften the blow for many Utahns. Today, as our economy is booming, small businesses continue to generate the bulk of new jobs. In rural America, the role of small enterprises is even more important. Small businesses account for 90 percent of all rural establishments. In 1998, small companies employed 60 percent of rural workers and provided half of rural payrolls. Perhaps the biggest challenge facing many American businesses, but especially smaller ones, is attracting adequate capital. Unfortunately, subchapter S is currently a hindrance, rather than a help, for many corporations facing this challenge. For example, current law allows for only one class of stock for S corporations. Further, S corporations are not currently allowed to issue convertible debt, nor are they allowed to have a nonresident alien as a shareholder. Several of the provisions of the S Corporation Reform Act of 2006 are designed to alleviate these restrictions on S corporations and help them attract capital. With these changes, S corporations will be more competitive with other small enterprises doing business as partnerships or limited liability companies that do not face such barriers. Even though electing subchapter S currently offers significant tax relief to a small corporation by eliminating the corporate level of taxation, S corporations still face some significant tax burdens and a myriad of potential pitfalls and tax traps for the unwary. Some of these impediments exist in the requirements of elective S corporation status, and others are in the rules governing the day-to-day operations of the entities. In either case, these provisions can stifle growth and impede job creation. Most of the provisions in our bill aim to eliminate these barriers and make it easier for companies to elect subchapter S and to operate in this status once the election is made. The Small Business Job Protection Act of 1996 made many important changes to subchapter S. One of the most significant was to allow, for the first time, small banks to elect to be S corporations. This opened the door for many small community banks to become more competitive with other financial institutions operating in towns and neighborhoods throughout the country. The availability of Subchapter S has been a positive development in increasing the profitability and competitiveness of many community banks. Some 2,300 banks have chosen to be S corporations, representing 25 percent of all banks. However, some of the operating rules under subchapter S remain unduly inflexible, complex, and harsh on banks. The bill we introduce today attempts to address many of these challenges by clarifying and relaxing some of the operational rules that apply to S corporations. These changes are designed to make it significantly easier for community banks to take advantage of the benefits of subchapter S. In my opinion, businesses should be allowed to focus on meeting their customers' needs and maximizing their shareholders' profits, and not preoccupied with conforming to Byzantine government rules. While the corporate structure of an S corporation would not generally make sense for larger companies, the tax structure applied to S corporations is quite sensible and can serve as a model for other companies. Economists hail the single level of taxation of profits in the S corporation law as a much more efficient approach, and something that would be desirable for all enterprises. The S Corporation Reform Act of 2006 enjoys the support of a broad range of associations and trade groups, many of which have worked with us in crafting the bill. I urge my colleagues to take a close look at this bill, and to support it. Thousands of small and growing businesses in every state will benefit from the improvements included in the bill. Its enactment will lead to an increased ability of these enterprises to attract capital and create new jobs. I ask unanimous consent that the text of the bill and section-by- section explanation of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I understand that Senator Schumer is supposed to go next. So I ask unanimous consent that I may be recognized following Senator Schumer or, if the other side would like me to go first, I would go first. But it is my understanding the time should be charged to the other side.

Mr. HATCH. I suggest the absence of a quorum.

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

Mr. HATCH. Mr. President, I ask unanimous consent that the distinguished Senator Schumer immediately follow me on the floor.

Mr. HATCH. Mr. President, I rise today to express my very strong support for S. 3711, the Gulf of Mexico Energy Security Act of 2006, sponsored by our very able chairman of the Senate Committee on Energy and Natural Resources, Senator Domenici. I was pleased to cosponsor S. 2253 with the chairman, which was an earlier version of this bill. We must all recognize that the global oil market has changed dramatically, and we must pursue an energy-security strategy that takes into account a new set of realities. We are now faced with the prospect of a long-term oil shortage conjoined with a serious lack of spare capacity among even the world's most reliable suppliers. As OPEC's ability to respond to growing global demand for crude has slackened, so, too, has OPEC's ability to maintain a price band and the resulting political and price stability on which our Nation--more than any other--has been dependent. It is imperative we face the fact that even exhaustive efforts to conserve and increase renewable fuel production will still fall far short of bridging the gap between global supply and our world's swelling demand for liquid fuels. Oil and natural gas have production. limits. We do not manufacture oil. In order to produce oil and natural gas we must go through a lengthy process of exploration and extraction. Increasingly our search for replacement light sweet crude has been coming up short. Just as it is important to recognize the magnitude of our global energy shortage, it is equally important to recognize that North America has solutions that are being ignored. The passage of S. 3711 would allow us to benefit from one of the best solutions available. Within our reach, in the Gulf of Mexico, we have an abundance of new sources of oil and gas. It is time we develop these new sources in order to help American families as they struggle against the rising cost of energy. Mr. President, increasing our domestic supply of oil and gas will have a positive impact on every American and every American business. Unfortunately, Canada, one of our major natural gas suppliers, has struggled to increase production and deliver it to the United States. As a result, gas imports from Canada have dropped in recent years. I don't see how this Congress can turn away an opportunity to gain access to the 5.8 trillion cubic feet of natural gas that this legislation would make available. This is enough natural gas to heat and cool nearly six million homes for 15 years. And how can we ignore 1.26 billion barrels of oil which would become available through this proposal? I understand there may be members of this body who will oppose this measure but I wonder why. But if the Senate is to get serious about reducing our dependence on foreign oil, we must pass this legislation. Reducing our foreign dependence by means of conservation, alone, will not work. Conservation is a part of the solution, but it is only a small part. The fact is, if we do not actually increase our domestic supply of oil and natural gas in a significant way, as soon as possible, our Nation will pay a very heavy price. I have been a strong advocate of conservation and increasing efficiency. Seven years ago, I recognized that about two-thirds of all our oil consumption is taken up by the transportation sector, and I began to draft the Clean Efficient Automobiles Resulting from Advanced Car Technologies Act, or CLEAR ACT. The CLEAR ACT was made law as part of the Energy Policy Act of 2005, and it is now providing strong tax incentives for the purchase of alternative fuel and hybrid-electric vehicles, for the installation of new alternative fueling stations, and for the use of alternative fuels in vehicles. We have had an explosion on the development of hybrid vehicles and alternative fules. The CLEAR Act had a lot to do with it. It took me and my cosponsors substantial effort and political capital to pass the CLEAR Act, but we did it because we knew it was important to increase the efficiency of our transportation sector. But I have never lost sight of the fact that our Nation absolutely must increase our domestic oil and gas production if we hope to continue to prosper and remain competitive. Also, there are several longer term solutions to our Nation's energy needs, such as our vast resources of unconventional oil, that need to be implemented. The U.S. Department of Energy estimates that recoverable oil shale in the western United States is somewhere between 800 billion and 1 trillion barrels of oil, but it is not counted among world reserves because it is not yet commercially developed. I should point out that the world's oil reserves stand at just about 1.6 trillion barrels. That means, at a minimum, the U.S. can increase the world's oil reserves by 50 percent by implementing an aggressive policy to recover our own oil shale. We in the west understand that in Colorado, Utah, and Wyoming, that tri-State area, is an estimated 1 trillion barrels of recoverable oil from tar sands and oil shale. Chairman Domenici and Senator Allard worked with me to ensure that the Energy Policy Act included strong provisions to promote the development of these unconventional resources. However, even if the development of oil shale and tar sands is a success, as I believe it will be, it would not occur in time to save us from our current supply shortage. S. 3711 is one of the few opportunities we have to improve our Nation's energy situation in the near term. I believe it represents an excellent compromise among the various interests involved, and I applaud the parties involved for bringing us to this point. I hope this body will not throw this opportunity away. This is a way of helping our country, helping our citizens. This is a way of stabilizing the price of oil and of natural gas. I urge my colleagues to support S. 3711, the Gulf of Mexico Energy Security Act. I suggest the absence of a quorum and ask unanimous consent that the time be equally divided.

Mr. HATCH

Mr. HATCH. Mr. President, today I am introducing the Health Centers Renewal Act with my colleagues, Senators Kennedy, DeWine, Dodd, Burr, Harkin, Bond, Mikulski, Snowe, Jeffords, Talent, Bingaman, Collins, Murray, Chafee, Reed, Smith, and Clinton. The health centers program was established more than 40 years ago and it has been successful in providing access to quality, comprehensive primary health care services throughout the country to a large number of uninsured or underinsured people, including children, parents and the elderly. Health centers are located at sites within medically underserved areas and provide care to those who have limited or no access to health insurance. Health centers are a critical component of our Nation's health care safety net, providing quality health care to over 15 million underserved individuals in the United States. These health centers include community health centers which are local, not-for profit 501(c) (3) corporations that provide community- oriented primary and preventive health care and are governed by boards of directors that are composed of at least 51 percent health centers users, to ensure that the patients and the community are represented. In my home State of Utah, community health centers serve 84,578 patients and provided almost 305,000 patient visits in 2005. As I travel throughout Utah, I hear nothing but positive remarks about the vital work of community health centers. I would like to share some of the comments that I have received from Utahns with my colleagues. Midtown Community Health Center in Ogden, UT just opened a very impressive new center which will enable patients in that community to receive the latest care for a range of illnesses such as diabetes, hypertension and asthma. These illnesses are costly and often require monthly visits, laboratory tests and expensive medication. One of the patients at Midtown who has diabetes and hypertension, stated that she would not have anywhere to go to monitor her diabetes if Midtown didn't exist. She describes Midtown as a ``Godsend'' and said that without her health care provided by Dr. Gregoire, she would be in serious financial debt and would have to choose between housing and food or health care. ' Another Utah health center has a family that comes into the clinic with a son who is bipolar. The boy's mother called very distraught because they were having problems affording his medicines and his illness had created other concerns within their family. The woman's new husband thought discipline was the solution to the child's mood swings. The community health center referred the boy to its mental health worker, who in addition to providing counseling, was able to get his medication for him at a reduced price. The mother thanked the mental health worker and she said just having someone to talk to who understood the boy's condition was helpful to her and her family. Bottom line, community centers have made a tremendous difference for Utah's residents with limited or no health insurance. And these examples are not unique to Utah--patients across the country have had similar experiences with community health centers. Due to the difference that health centers have made in so many lives, Congress has consistently increased funding for them since 2001 in order to meet President Bush's goal to have 1,200 new or expanded centers and an additional 6.1 million patients served by 2006. Currently, the additional funding has provided service to 4 million additional patients and has added new or expanded facilities in well over 750 communities nationwide. By reauthorizing this program, we will allow health centers to provide lowcost health care to many more uninsured and underinsured individuals. The legislation that we are introducing today will reauthorize the health center program for 5 more years at the fiscal year 2007 funding level of $1.963 billion, which is the administration's fiscal year 2007 budget request for the health centers program. Utah health centers have made a tremendous difference in the lives of many--66 percent of patients come from Utah's urban areas and 27 percent are from the rural regions in Utah. Ninety-six percent of Utah's health center patients lived below 200 percent of the Federal poverty level and health centers have made a tremendous difference in their lives. In fact, for most, these health centers serve as a vital component of the health care safety net for the medically underserved and uninsured. In rural areas, health centers are often the only health care provider for many miles. Midtown Community Health Center coordinates a free comprehensive screening clinic for women on an annual basis. In 2006, over 250 women received pap smears, breast examinations, diabetes screening, cholesterol screening and depression screening. Many of the low-income, uninsured women served had not received preventive care in many years. One woman who attended the event had experienced irregular vaginal bleeding for several months. She had tried to find a medical provider but was unsuccessful due to a lack of health insurance and financial concerns. She came to Midtown Community Health Center with an enlarged uterus, a uterine mass and anemia. A Midtown medical provider arranged for an emergency ultrasound and removal of the tumor within 3 weeks. The patient is improving and being treated by Midtown for anemia and irregular menstrual periods. A 40-year-old man was working as a contractor when his boss noticed he was losing weight and took him to the hospital. He was diagnosed with tuberculosis and hepatitis C. He did not have health insurance and became homeless. The hospital referred him to Wasatch Homeless Health Care, Inc. where he entered the tuberculosis housing and treatment program. The Johnsons manage their own business in a small rural Utah town, but somehow health insurance coverage has always been difficult for them to purchase. Without the Wayne Community Health Center in Bicknell, the family could only seek medical care for emergencies. These stories are just some of real life experiences which illustrate how community health centers make a difference. They save lives. They provide preventive health care. They keep people out of hospitals. Community health centers are worth every cent that the Federal Government invests in them. I am pleased and proud to support them by introducing this legislation today. I urge my colleagues to support this important legislation which not only provides individuals with important health care services but also ensures that the health centers providing these services will have the necessary support to continue providing health services.

Mr. HATCH

Mr. HATCH. Mr. President, today I am introducing the Health Centers Renewal Act with my colleagues, Senators Kennedy, DeWine, Dodd, Burr, Harkin, Bond, Mikulski, Snowe, Jeffords, Talent, Bingaman, Collins, Murray, Chafee, Reed, Smith, and Clinton. The health centers program was established more than 40 years ago and it has been successful in providing access to quality, comprehensive primary health care services throughout the country to a large number of uninsured or underinsured people, including children, parents and the elderly. Health centers are located at sites within medically underserved areas and provide care to those who have limited or no access to health insurance. Health centers are a critical component of our Nation's health care safety net, providing quality health care to over 15 million underserved individuals in the United States. These health centers include community health centers which are local, not-for profit 501(c) (3) corporations that provide community- oriented primary and preventive health care and are governed by boards of directors that are composed of at least 51 percent health centers users, to ensure that the patients and the community are represented. In my home State of Utah, community health centers serve 84,578 patients and provided almost 305,000 patient visits in 2005. As I travel throughout Utah, I hear nothing but positive remarks about the vital work of community health centers. I would like to share some of the comments that I have received from Utahns with my colleagues. Midtown Community Health Center in Ogden, UT just opened a very impressive new center which will enable patients in that community to receive the latest care for a range of illnesses such as diabetes, hypertension and asthma. These illnesses are costly and often require monthly visits, laboratory tests and expensive medication. One of the patients at Midtown who has diabetes and hypertension, stated that she would not have anywhere to go to monitor her diabetes if Midtown didn't exist. She describes Midtown as a ``Godsend'' and said that without her health care provided by Dr. Gregoire, she would be in serious financial debt and would have to choose between housing and food or health care. ' Another Utah health center has a family that comes into the clinic with a son who is bipolar. The boy's mother called very distraught because they were having problems affording his medicines and his illness had created other concerns within their family. The woman's new husband thought discipline was the solution to the child's mood swings. The community health center referred the boy to its mental health worker, who in addition to providing counseling, was able to get his medication for him at a reduced price. The mother thanked the mental health worker and she said just having someone to talk to who understood the boy's condition was helpful to her and her family. Bottom line, community centers have made a tremendous difference for Utah's residents with limited or no health insurance. And these examples are not unique to Utah--patients across the country have had similar experiences with community health centers. Due to the difference that health centers have made in so many lives, Congress has consistently increased funding for them since 2001 in order to meet President Bush's goal to have 1,200 new or expanded centers and an additional 6.1 million patients served by 2006. Currently, the additional funding has provided service to 4 million additional patients and has added new or expanded facilities in well over 750 communities nationwide. By reauthorizing this program, we will allow health centers to provide lowcost health care to many more uninsured and underinsured individuals. The legislation that we are introducing today will reauthorize the health center program for 5 more years at the fiscal year 2007 funding level of $1.963 billion, which is the administration's fiscal year 2007 budget request for the health centers program. Utah health centers have made a tremendous difference in the lives of many--66 percent of patients come from Utah's urban areas and 27 percent are from the rural regions in Utah. Ninety-six percent of Utah's health center patients lived below 200 percent of the Federal poverty level and health centers have made a tremendous difference in their lives. In fact, for most, these health centers serve as a vital component of the health care safety net for the medically underserved and uninsured. In rural areas, health centers are often the only health care provider for many miles. Midtown Community Health Center coordinates a free comprehensive screening clinic for women on an annual basis. In 2006, over 250 women received pap smears, breast examinations, diabetes screening, cholesterol screening and depression screening. Many of the low-income, uninsured women served had not received preventive care in many years. One woman who attended the event had experienced irregular vaginal bleeding for several months. She had tried to find a medical provider but was unsuccessful due to a lack of health insurance and financial concerns. She came to Midtown Community Health Center with an enlarged uterus, a uterine mass and anemia. A Midtown medical provider arranged for an emergency ultrasound and removal of the tumor within 3 weeks. The patient is improving and being treated by Midtown for anemia and irregular menstrual periods. A 40-year-old man was working as a contractor when his boss noticed he was losing weight and took him to the hospital. He was diagnosed with tuberculosis and hepatitis C. He did not have health insurance and became homeless. The hospital referred him to Wasatch Homeless Health Care, Inc. where he entered the tuberculosis housing and treatment program. The Johnsons manage their own business in a small rural Utah town, but somehow health insurance coverage has always been difficult for them to purchase. Without the Wayne Community Health Center in Bicknell, the family could only seek medical care for emergencies. These stories are just some of real life experiences which illustrate how community health centers make a difference. They save lives. They provide preventive health care. They keep people out of hospitals. Community health centers are worth every cent that the Federal Government invests in them. I am pleased and proud to support them by introducing this legislation today. I urge my colleagues to support this important legislation which not only provides individuals with important health care services but also ensures that the health centers providing these services will have the necessary support to continue providing health services.

Mr. HATCH

Mr. HATCH. Mr. President, as a member of the Senate Health, Education, Labor, and Pensions--HELP--Committee, I rise to express my support for the Services for Ending Long-Term Homelessness Act, S. 709, as introduced by Senator Mike DeWine. Many low-income housing advocates in Utah have asked me to cosponsor this important legislation because it establishes a grant program, run by the Substance Abuse and Mental Health Services Administration, SAMHSA, for services to end chronic homelessness. In Utah alone, there are approximately 1,900 chronically homeless individuals whose lives are in a constant state of peril because they are repeatedly homeless for long periods of time. They usually have one or more disabilities, and often cycle between homeless shelters, the streets, mental health facilities, emergency rooms, hospitals, and jails. The public cost for their continued care is extremely high, and their medical outcomes are generally very poor. I believe that ending chronic homelessness requires housing with supportive services, and policies which prevent high-risk individuals from returning to the streets. Based on several estimates, including an estimate published in the President's New Freedom Commission on Mental Health Report, it will take approximately 150,000 units of supportive housing and over 10 years to end long-term homelessness. S. 709 would authorize funding for a flexible array of services in permanent supportive housing, focused on helping people move toward recovery and self sufficiency. Although I support the bill and its intent, I am very concerned about its cost. Throughout my Senate career, I have fought hard for fiscal discipline. Although the cost of the bill has not been estimated by the Congressional Budget Office, everyone agrees that the issues and associated costs are complex. S. 709 provides accountability, has mechanisms for controlling costs, and mechanisms for maximizing cost savings. For example, the bill prioritizes accountability and cost control through a required competitive process. In an effort to save on overall public spending, the bill gives priority to applicants who serve individuals who have proven to be more expensive to the public health system and to law enforcement. Additionally, S. 709 requires that the grantee match the Federal funds received, and the match requirement increases over time. It is important to note that the amount of funding an applicant receives cannot rise above the rate of inflation. Finally, the bill ensures accountability by requiring grantees to report on their performance. This effort is to ensure that chronic homelessness is being reduced, thus reducing costly mental health and substance abuse problems, and increasing education and employment. Mr. President, I support strongly the goals of this bill and I believe our continued economic expansion and improving Federal budget will enable us to fully implement the objectives of this bill and end homelessness in this country forever.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the Multidistrict Litigation Restoration Act of 2006. The word ``Lexecon'' is well known in the Federal judiciary. It refers to the 1998 Supreme Court decision holding that statutory authority does not exist for transferee courts handling cases centralized by the Multidistrict Litigation Panel, or the MDL Panel, to retain these cases for trial. For approximately 30 years, courts receiving cases for pretrial proceedings from the MDL Panel invoked the general venue statute to transfer cases to themselves for trial. The process worked well because the court that had handled the pretrial phase was well-versed in the case's facts and was in the best position to encourage all parties to reach a settlement, or--barring settlement--make a final determination by adjudicating the dispute. But with the Lexecon decision that practice ended, and ever since we have been left with a multidistrict, multiparty, multiforum system that is costly, time-consuming, repetitive, inefficient, and often inconsistent. As many of my colleagues know, the MDL Panel is an entity comprising seven judges, authorized to transfer civil actions pending in more than one district and involving one or more common questions of fact to any district court for coordinated pretrial proceedings. The MDL Panel authorizes the transfer upon determining that it will be for the convenience of the parties and witnesses, and promote the just and efficient conduct of such actions. Congress established this centralization mechanism in 1968 to avoid duplication of discovery, prevent inconsistent rulings, and conserve the resources of the parties, their counsel, and the judiciary. Typically, cases centralized by the MDL Panel are numerous and complex. About 150,000 cases with millions of claims have been resolved through the process since its creation. They have included such matters as mass torts, antitrust price fixing, securities fraud, and unfair employment practices. The transferee judge becomes highly knowledgeable about the litigation during his or her consideration of voluminous pretrial proceedings. When all of the cases are remanded to the various transferor courts following completion of pretrial proceedings, those courts know little or nothing about the litigation. Even when all the parties agree to keep the matter that has been transferred in the court it was transferred to, it cannot be done under the current law. In some instances, judges have followed cases to courts outside their judicial circuit to conduct trial, at considerable inconvenience and expense, in order to spare other judges from the nightmare of having such mammoth cases so suddenly thrust upon them. Let me give you an example of what this means in real terms. In my own State of Utah, there have been nearly 1,000 cases that have been transferred either in or out of Utah's judicial district by the MDL Panel since 1968. In fiscal year 2005, there were nearly 50 cases transferred out of Utah through the MDL process. That is 50 cases that could be dumped back onto our judges in Utah without any warning or preparation. At the same time, there were six MDL cases pending in Utah at the end of 2005. Under the post-Lexecon system, one or more of our judges could be required to follow these cases to other districts throughout the United States for trial. Both of these scenarios would prove to be a serious burden for a small judicial district like Utah, and could hamper or delay justice for the people of my State. This is the same challenge our courts face nationwide as a result of the Lexecon decision. Congress is the only entity that can solve these problems. Writing for the Court in Lexecon, Justice Souter stated that ``the proper venue for resolving the issue remains the floor of Congress.'' That is why I am introducing the Multidistrict Litigation Restoration Act of 2006 today, to give the Federal judiciary the necessary statutory authority to transfer multidistrict litigation cases for the purposes of trial. This legislation will return the law to what was in effect for almost three decades prior to the Lexecon decision. It will provide the MDL Panel with the most efficient option for resolving complex issues, the best means to encourage universal settlements, and the most consistent approach for rendering decisions. This legislation is supported by the Judicial Conference of the United States, the policy arm of the Federal judicial branch, as well as the U.S. Department of Justice. The legislation is also supported by the U.S. Chamber of Commerce Institute for Legal Reform. Moreover, this is not a partisan effort. Proposals to reform multidistrict, multiparty litigation were first advanced by the Carter administration. I introduced similar legislation in the 106th Congress with Senators Leahy, Kohl, and Schumer. That bill passed the Senate by unanimous consent. This legislation is long overdue. Lexecon was decided 8 years ago. The House has passed a Lexecon fix four times since 1999. In a letter to the chairman of the MDL Panel, Judge Thomas W. Thrash, a Federal district court judge for the Northern District of Georgia, reporting on the disposition of a multidistrict litigation case that he was required to try in Texas because he could not transfer the case to Georgia, summed up the situation well. Judge Thrash wrote, ``Needless to say, resolution of this case has been prolonged and involved greater expense to the judiciary . . . because of my inability to transfer the Northern District of Texas case to myself for trial here in the Northern District of Georgia. On the other hand, it would have been almost criminal to dump this case on a new Northern District of Texas judge for trial. . . . I hope that this problem will be fixed by Congress soon.'' Mr. President, I share that hope. I urge all of my colleagues to support the Multidistrict Litigation Restoration Act of 2006 and I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the Multidistrict Litigation Restoration Act of 2006. The word ``Lexecon'' is well known in the Federal judiciary. It refers to the 1998 Supreme Court decision holding that statutory authority does not exist for transferee courts handling cases centralized by the Multidistrict Litigation Panel, or the MDL Panel, to retain these cases for trial. For approximately 30 years, courts receiving cases for pretrial proceedings from the MDL Panel invoked the general venue statute to transfer cases to themselves for trial. The process worked well because the court that had handled the pretrial phase was well-versed in the case's facts and was in the best position to encourage all parties to reach a settlement, or--barring settlement--make a final determination by adjudicating the dispute. But with the Lexecon decision that practice ended, and ever since we have been left with a multidistrict, multiparty, multiforum system that is costly, time-consuming, repetitive, inefficient, and often inconsistent. As many of my colleagues know, the MDL Panel is an entity comprising seven judges, authorized to transfer civil actions pending in more than one district and involving one or more common questions of fact to any district court for coordinated pretrial proceedings. The MDL Panel authorizes the transfer upon determining that it will be for the convenience of the parties and witnesses, and promote the just and efficient conduct of such actions. Congress established this centralization mechanism in 1968 to avoid duplication of discovery, prevent inconsistent rulings, and conserve the resources of the parties, their counsel, and the judiciary. Typically, cases centralized by the MDL Panel are numerous and complex. About 150,000 cases with millions of claims have been resolved through the process since its creation. They have included such matters as mass torts, antitrust price fixing, securities fraud, and unfair employment practices. The transferee judge becomes highly knowledgeable about the litigation during his or her consideration of voluminous pretrial proceedings. When all of the cases are remanded to the various transferor courts following completion of pretrial proceedings, those courts know little or nothing about the litigation. Even when all the parties agree to keep the matter that has been transferred in the court it was transferred to, it cannot be done under the current law. In some instances, judges have followed cases to courts outside their judicial circuit to conduct trial, at considerable inconvenience and expense, in order to spare other judges from the nightmare of having such mammoth cases so suddenly thrust upon them. Let me give you an example of what this means in real terms. In my own State of Utah, there have been nearly 1,000 cases that have been transferred either in or out of Utah's judicial district by the MDL Panel since 1968. In fiscal year 2005, there were nearly 50 cases transferred out of Utah through the MDL process. That is 50 cases that could be dumped back onto our judges in Utah without any warning or preparation. At the same time, there were six MDL cases pending in Utah at the end of 2005. Under the post-Lexecon system, one or more of our judges could be required to follow these cases to other districts throughout the United States for trial. Both of these scenarios would prove to be a serious burden for a small judicial district like Utah, and could hamper or delay justice for the people of my State. This is the same challenge our courts face nationwide as a result of the Lexecon decision. Congress is the only entity that can solve these problems. Writing for the Court in Lexecon, Justice Souter stated that ``the proper venue for resolving the issue remains the floor of Congress.'' That is why I am introducing the Multidistrict Litigation Restoration Act of 2006 today, to give the Federal judiciary the necessary statutory authority to transfer multidistrict litigation cases for the purposes of trial. This legislation will return the law to what was in effect for almost three decades prior to the Lexecon decision. It will provide the MDL Panel with the most efficient option for resolving complex issues, the best means to encourage universal settlements, and the most consistent approach for rendering decisions. This legislation is supported by the Judicial Conference of the United States, the policy arm of the Federal judicial branch, as well as the U.S. Department of Justice. The legislation is also supported by the U.S. Chamber of Commerce Institute for Legal Reform. Moreover, this is not a partisan effort. Proposals to reform multidistrict, multiparty litigation were first advanced by the Carter administration. I introduced similar legislation in the 106th Congress with Senators Leahy, Kohl, and Schumer. That bill passed the Senate by unanimous consent. This legislation is long overdue. Lexecon was decided 8 years ago. The House has passed a Lexecon fix four times since 1999. In a letter to the chairman of the MDL Panel, Judge Thomas W. Thrash, a Federal district court judge for the Northern District of Georgia, reporting on the disposition of a multidistrict litigation case that he was required to try in Texas because he could not transfer the case to Georgia, summed up the situation well. Judge Thrash wrote, ``Needless to say, resolution of this case has been prolonged and involved greater expense to the judiciary . . . because of my inability to transfer the Northern District of Texas case to myself for trial here in the Northern District of Georgia. On the other hand, it would have been almost criminal to dump this case on a new Northern District of Texas judge for trial. . . . I hope that this problem will be fixed by Congress soon.'' Mr. President, I share that hope. I urge all of my colleagues to support the Multidistrict Litigation Restoration Act of 2006 and I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I thank my colleague and I appreciate his leadership on the floor. This is an exceptional nominee for the court. I rise to voice my strong support for the nomination of Jerome A. Holmes of Oklahoma to be a judge on the U.S. Court of Appeals for the Tenth Circuit. With this nomination, we see an all-too-familiar pattern. Mr. Holmes is a highly qualified nominee, a man of integrity and character who knows the proper role of a judge, someone who is praised by those who know him and attacked by some who do not. Let me review each element of this familiar pattern in turn. First, Mr. Holmes is a highly qualified nominee. After receiving his law degree from Georgetown University in 1988, where he was editor in chief of the Georgetown Immigration Law Journal, Mr. Holmes returned to Oklahoma and began an impressive legal career. He clerked first for U.S. District Judge Wayne Alley of the Western District of Oklahoma, and then for U.S. Circuit Judge William Holloway of the Tenth Circuit. Both judges have since taken senior status, and I can only imagine how proud they must be to see their former clerk now nominated to the Federal bench himself. And in the case of Judge Holloway, I truly hope that Mr. Holmes will soon have the privilege of calling his former boss a colleague. After 3 years of private practice with the highly regarded law firm of Steptoe & Johnson, Mr. Holmes entered public service. While an Assistant United States Attorney serving the Western District of Oklahoma, Mr. Holmes prosecuted a wide range of cases and was that office's anti-terrorism coordinator. No doubt among his most vivid memories from that time was his experience on the prosecution team regarding the Oklahoma City bombing. Somehow, Mr. Holmes also completed a master's degree in public administration from Harvard University's Kennedy School of Government. Currently, after more than a decade as a prosecutor, Mr. Holmes is back in private practice as a director of Crowe & Dunlevy, a prominent law firm in Oklahoma City, where he chairs the firm's diversity. committee. He has also served as Vice President of the Oklahoma Bar Association. This is an exceptional man. Second, Mr. Holmes is a man of integrity and character. We hear now and then about the need for judges who are well-rounded individuals, who are good people as well a good lawyers. Well, during his years in private practice and public service, Mr. Holmes has also served his community. In addition to chairing the Oklahoma City Rescue Mission, Mr. Holmes has been a director of the Oklahoma Medical Research Foundation and a trustee of the Oklahoma City National Memorial Foundation. Third, Mr. Holmes understands the proper role of judge in our system of Government. He has testified under oath that he knows judges must separate their personal views from what the law requires. He has repeatedly affirmed his commitment to follow applicable Supreme Court precedent in cases that will come before him. This means, as he put it in answers to questions following his hearing, an even-handed application of legal principles in all areas. Fourth, Mr. Holmes is praised and supported by those who know him. This includes Democrats in Oklahoma. Daniel Webber, appointed by President Bill Clinton to be U.S. Attorney in Oklahoma, has written the Judiciary Committee in support of Mr. Holmes' nomination. He has known this nominee for more than a decade and urged confirmation based on Mr. Holmes' intellect, experience, and character. Reaffirming that the nominee before us today knows the proper role of a judge, Mr. Webber wrote us that Mr. Holmes is ``respectful of the role of the courts. . . . When Jerome states under oath that he will put his personal views aside and follow the law, I believe he will do just that.'' Oklahoma Governor Brad Henry, a Democrat, also wrote the Judiciary Committee to support this nomination. Governor Henry said that Mr. Holmes is ``a highly qualified candidate, a superb lawyer, with a reputation for fairness, ethics and integrity. In short, I do not think you could have a candidate more highly qualified and regarded than Jerome Holmes.'' A superb lawyer with a reputation for fairness, ethics, and integrity. It seems to me that is exactly the formula we should consistently be looking for in nominees to the Federal bench. So far, so good. The fifth element of this familiar pattern, however, is that Mr. Holmes is being attacked and opposed by some who do not know him. Mind you, they have not suggested that Mr. Holmes is not qualified to sit on the Federal appellate bench. They have not disputed his character or integrity. Nor have they offered anything to cast doubt on what seems to be universal acclaim from those who know Mr. Holmes and have worked with him. In yet another familiar element of this pattern, Mr. Holmes' critics find fault not with his experience, his qualifications, his integrity, or his character, but his politics. In particular, the critics take issue with Mr. Holmes' opposition to Government-imposed racial preference policies. Let me emphasize what I mentioned a few minutes ago, that Mr. Holmes helped create and chairs his law firm's diversity committee. In the private arena, he works to recruit and retain qualified lawyers of various racial and ethnic backgrounds. He also believes that race-based policies were once necessary to address the effects of past discrimination. Mr. Holmes would be the first African-American judge on the Tenth Circuit. At the same time, like two-thirds of Americans, Mr. Holmes opposes current programs that condition admission to public universities on race, not to address past discrimination but to create future diversity. My liberal friends can, of course, disagree with Mr. Holmes on this issue. But by suggesting that his opinion on this issue somehow disqualifies him from serving on the Federal bench, they are treading on very dangerous ground. Mr. Holmes is hardly the first judicial nominee to have taken a clearly defined stand on a controversial issue. I could chronicle some of the more prominent examples, judges overwhelmingly confirmed by this body. Are my liberal friends saying that we should instead be looking to be judicial nominees individuals who have no opinions on issues of the day, who have done nothing, said nothing, and thought nothing? Or are they suggesting that if nominees have thought about and have opinions on controversial issues, only liberal opinions are acceptable? The issue is not whether a nominee is liberal or conservative, Democrat or Republican, but whether he is committed to basing his judicial decisions on the law. The evidence from him and those who know him is that Mr. Holmes will do just that, and there is not a shred of evidence to the contrary. Not only that, but Mr. Holmes' supporters--again, those who know him best--also stress his willingness to listen and to respect those with differing views. Oklahoma County Commissioner Jim Roth, another Democrat, wrote the Judiciary Committee calling Mr. Holmes ``a principled leader who demonstrates mutual respect for all people. In particular, he is respectful of views that differ from his own and he enjoys tremendous bipartisan support and respect.'' That is from a Democrat. How can you ask for a better statement from anybody? Specifically on the issue that has so captivated Mr. Holmes' critics, Pastor George Young, Sr., who supports affirmative action, writes that ``Mr. Holmes has displayed a level of integrity in all his dealings that I have been aware and has shown in out personal conversation willingness to listen and respect differing views.'' Perhaps my liberal friends are taking out their litmus paper to judge Mr. Holmes' personal views because they believe that is precisely what should drive judicial decisions. Mr. President, I reject that notion out of hand and I invite those who take such an ideological, politicized view of what judges do to try and sell that to the American people. Mr. President, personal views or political positions are the wrong standard for evaluating judicial nominees. It distorts the fundamental difference between advocates and judges, between opinion and law. And it misleads the American people about what judges do and the important place they occupy in our system of Government. I am convinced that Mr. Holmes understands far better than his critics that judges must be neutral arbiters, that they must follow the law, that they must set aside personal views or opinions. I am convinced that Mr. Holmes will do just that on the Tenth Circuit. Mr. President, we have been here before. Nominees of obvious qualification and experience, unquestioned integrity and character, and solid bipartisan support, are nonetheless attacked and maligned because of their personal views or political opinions. It has happened before and, sadly, I expect it will happen in the future. The proper standard, however, looks at qualifications, integrity, and commitment to the proper role of judges in our system of Government. Judged by this proper standard, Mr. Holmes will be a fine member of the court he once served as a law clerk. Let me close with the words of one of the judges Mr. Holmes served as a law clerk. Judge William Holloway was appointed to the Tenth Circuit in 1968 by President Lyndon Johnson. He wrote the Judiciary Committee that Mr. Holmes ``performed his work for our court as my clerk with complete impartiality and compassion for the people whose cases were before the court. I am convinced he will give extraordinarily fine service as a fair minded and industrious judge.'' Excellence, fairness, integrity, impartiality, compassion, and a willingness to listen. That is what the evidence shows, Mr. President. Jerome Holmes is a fine lawyer and a good man. He will make a great judge. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, this morning we are continuing our discussion of the Child Custody Protection Act, S. 403. This is an appropriate debate, and it comes at an appropriate time. Last week, the Senate passed the Adam Walsh Child Protection and Safety Act. That important bipartisan bill, which the President is expected to sign this week, will empower the Federal Government to step up the fight against sexual predators of children. The bill we passed last Thursday is a serious bipartisan achievement, and for good reason. Republicans and Democrats alike can agree on the need to protect minors from abuse. That same purpose, the desire to protect children, is what motivates the Child Custody Protection Act, and my hope is that we can come together on this bill as well, Republicans and Democrats, and pass this legislation. The American people have spoken. Our States have spoken. Though the media might not always hear the message, Americans are quite unified, and have been for a long time, on the issue of abortion. Supermajorities of the American people think that some regulation of abortion is appropriate. Nowhere is this more obvious than on the issue of parental consent and notification laws. Most Americans understand that a parent or a guardian should be involved in this decision. The Child Custody Protection Act will give Federal support to State laws requiring this involvement, laws that are too often circumvented when young girls are taken across State lines to obtain an abortion, often with the assistance of the predatory men responsible for their pregnancies. These actions are terrible for families and young women. They are a danger to a young woman's health and to her spirit. And, indeed, the involvement of a parent or guardian is critical when a young woman is making a choice of this magnitude, and we should do our part to support these parental involvement laws. This bill does so by making it a Federal crime to transport a minor across a State line to obtain an abortion that would not be permitted absent parental involvement in the State where the minor resides. This is a limited and a reasonable bill. It specifies that neither the minor nor a parent can be prosecuted or sued for violation of the act. It also provides defendants in a prosecution or civil action an affirmative defense if they believed the required parental notice or involvement took place. Finally, it creates a private right of action for the parent or guardian whose rights are violated by a person who violates the act. This is a balanced bill. And my hope is that my colleagues will support it. Forty-four States have enacted laws that require some level of parental involvement in a minor's decision to obtain an abortion. Parental involvement laws are not a divisive issue. They are reasonable regulations. At many middle schools and high schools, you cannot get an aspirin from the school nurse without permission from your parents. Would it really make sense to allow a young girl, perhaps only 14 years old, to obtain an abortion without her parents' involvement? The liberal pro-abortion interest groups routinely tell us that women must have completely unfettered access to abortion throughout their pregnancies. And they typically give two reasons. First, this is a private, medical decision between a woman and her doctor. And second, this is a moral choice that the woman should be able to make without any interference at all. These principles are taken to extremes by these groups. They lead to opposition of almost any regulation of abortion, including informed-consent laws, and even partial-birth abortion. Parental involvement regulations are commonsense and widely supported by the American people. But the reasoning of these interest groups leads them to a position of abortion absolutism--there can be no interference at any time with the decision to undergo this medical procedure. I disagree with these arguments. Even so, taking these groups on their own terms leads me to believe that they should actually support parental involvement laws. After all, if abortion is a medical procedure, do we really want minors electing invasive medical procedures without a parent or guardian knowing about it? And if the decision to have an abortion is a profound moral choice, do we really want a child to make that choice without consulting with the parents who are responsible for teaching and raising that child? Of course not. And so the American people have reasonably, and responsibly, endorsed with considerable bipartisan support, the parental involvement laws that exist in 44 States. Recently, my home State of Utah passed its own law. It is a good law. And it is a careful law. My State requires that before a minor obtains an abortion there must be notification of, and consent by, a parent or guardian. Our parental consent requirement prohibits a doctor from performing an abortion without first obtaining the written consent of a parent or guardian. And consistent with the Supreme Court's requirement that some judicial bypass be included in a parental consent statute, Utah allows a minor to obtain an abortion without the consent of a parent or guardian if a court finds by the preponderance of the evidence that the minor has given informed consent and is mature enough to be capable of giving her informed consent or that the abortion would be in the minor's best interest. That is a reasonable balance. The interest groups that oppose any and every restriction on abortion always tell us that this is an important choice. Well, if it is an important choice, I believe we should require that a minor's choice be an informed one. Utah law also requires that a doctor, prior to performing an abortion, notify a parent or guardian. Again, this is reasonable. Why would we allow a young woman to undergo a medical procedure without first notifying those charged with her well-being? We would not allow it for a routine checkup, much less any other invasive surgical procedure. And Utah's legislators were careful in the way they went about this. They knew that in certain circumstances, a young woman might not want to notify her parents. For that reason, there are generous exceptions to this notice requirement. If a medical emergency exists, the notice requirement is waived. If the physician reports to the proper State agency that the pregnancy occurred through incest, or if the child is a victim of abuse, the parent responsible for the physical or sexual abuse need not be notified. And if the legal parent or guardian has not assumed responsibility for the young girl's upbringing, that parent or guardian need not be notified. Utah's citizens are not unique. As the citizens in most other States have, Utahns have determined that some level of parental involvement in this process is an important one. The interest groups disagree. And as a result, there is some opposition to this commonsense bill. Here is the bottom-line. Forty-four States have parental involvement laws. In my opinion, some of those State parental involvement laws are ineffectual, but in 26, parents are effectively guaranteed the right to parental notification or consent. Yet with minor children, too often they are being taken across State lines, to a State with a more liberal abortion policy, to obtain an abortion without their parents' involvement. Taking a minor across State lines without her parents' knowledge? Most people would call this kidnapping. And in many cases, the actions come close. I want to thank my colleague from Alabama, Senator Sessions, for chairing a hearing in the Judiciary Committee on this subject in the 108th Congress. The hearing was very informative. This is what we learned from the testimony presented there: The American Academy of Pediatrics Committee on Adolescence has found that ``[a]lmost two thirds of adolescent mothers have partners older than 20 years of age.'' The National Center for Health Statistics concluded that ``among girls 14 or younger when they first had sex, a majority of these first . . . experiences were nonvoluntary. Evidence also indicates that among unmarried teenage mothers, two-thirds of the fathers are age 20 or older, suggesting that differences in power and status exist between many sexual partners.'' In a study of over 46,000 pregnancies by school-age girls in California, researchers found that ``71%, or over 33,000, were fathered by adult post-high-school men whose mean age was 22.6 years, an average of five years older than the mothers . . . Even among junior high school mothers aged 15 or younger, most births are fathered by adult men 6 to 7 years their senior. Men aged 25 or older father more births among California school-age girls than do boys under age 18.'' I could go on, and I want to thank Professor Teresa Collett of the University of St. Thomas School of Law for putting these statistics together in her testimony. They are important. They remain uncontroverted by those opposed to this bill. And they tell an important story. Many thousands of teenage pregnancies are caused by predatory males, many years the girl's senior, who should be prosecuted for statutory rape. Let's be clear. Many thousands of teenage pregnancies are caused by felonious activity--scared and pregnant young girls; wounded and abused by these sexual predators. And parental involvement laws go a long way toward making sure that people become aware of this abuse. Yet currently, it is too easy for these predators to circumvent these laws. We have heard of older men, or their mothers, or their friends, who take these vulnerable young girls across State lines to get an abortion, and get rid of the evidence of the crime. And then when these girls are dumped back at home, those who care for them and love them are oblivious to what they have been through. This is not only physically dangerous. It is a threat to the spirit of a wounded and confused young woman. This is not some hypothetical situation. In the Senate Judiciary Committee, we heard from Joyce Farley of Dushore, PA. In 1995 her daughter, Crystal, was raped and impregnated by a 19-year-old man whose mother then took Crystal for an abortion into the State of New York. This was not a decision for this man, or his mother to make. These people were not interested in making the right decision for Crystal. They were making a decision that was in the best interests of the man who raped this child. The Child Custody Protection Act would protect these young women. It would protect the rights of parents. The decision to obtain an abortion is an important one. It is a medical decision, but it is also so much more. It is a decision that will impact a woman for the rest of her life. And it is a decision that a minor should, in most cases, make with the involvement of a parent or a legal guardian. This important bill that my colleague from Nevada, Senator Ensign, has introduced will go a long way toward discouraging the abuse that often leads to teenage pregnancy, toward protecting minors from predatory males, and toward protecting the constitutionally recognized right of States to involve parents in these important decisions. I look forward to this debate. There should be some bipartisan consensus on this issue, and my hope is that we will reach one. This is a bill that is worthy of our support. It protects the rights of parents that have been recognized by the States that we represent. We should do our best to support those rights. I encourage my colleagues to support this bill.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that we go back and forth so long as we have people on both sides. So the distinguished Senator from North Dakota will be allowed to speak next and then the distinguished Senator from Virginia.

Mr. HATCH. Mr. President, I ask unanimous consent that 3 minutes be yielded to the Senator from Georgia, and then we go back to the Senator from North Dakota, and then to Senator Allen, and that would be it for now.

Mr. HATCH. Mr. President, I thank my colleagues for granting unanimous consent to pass the most comprehensive child crimes and protection bill in our Nation's history--H.R. 4472, the Adam Walsh Child Protection and Safety Act of 2006. This bill started in the House of Representatives by a courageous and ambitious Congressman from Florida, Mark Foley. Mark is with us in the Senate Chamber today, and I want to thank him, again, for getting this ball rolling and for fighting like a champion on behalf of our children. I appreciate his tenacity and enthusiasm--we would not be here without his devotion and hard work. I also thank Senator Biden, who joined me in sponsoring the original Senate version of this bill. Senator Biden and I have worked together on so many bills, none more important than what we are accomplishing today for our children. Senators Frist, Specter, and Reid thank you for making this bill priority and for getting this bill through. The bill we are about to pass, the Adam Walsh Child Safety and Protection Act, represents a collaboration between the House and Senate to include the strong provisions of S. 1086, the Sex Offender Registration and Notification Act, and H.R. 4472, The Child Safety Act. It creates a National Sex Offender Registry with uniform standards for the registration of sex offenders, including a lifetime registration requirement for the most serious offenders. This is critical to sew together the patch-work quilt of 50 different State attempts to identity and keep track of sex offenders. The Adam Walsh Act establishes strong Federal penalties for sex offenders who fail to register, or fail to update their information, including up to 10 years in prison for non-compliance. The Adam Walsh Act imposes tough penalties for the most serious crimes against children, including a 30 year mandatory penalty for raping a child and no less than 10 years in prison for a sex trafficking offense. In fact, this bill creates a series of assured penalties for crimes of violence against children, including penalties for murder, kidnapping, maiming, and using a dangerous weapon against a child. And the bill allows for the death penalty in the most serious cases of child abuse, including the murder of a child in sexual exploitation and kidnapping offenses. The bottom line here is that sex offenders have run rampant in this country and now Congress and the people are ready to respond with legislation that will curtail the ability of sex offenders to operate freely. It is our hope that programs like NBC Dateline's ``To Catch a Predator'' series will no longer have enough material to fill an hour or even a minute. Now, it seems, they can go to any city in this country and catch dozens of predators willing to go on-line to hunt children. Laws regarding registration for sex offenders have not been consistent from State to State now all States will lock arms and present a unified front in the battle to protect children. Web sites that have been weak in the past, due to weak laws and haphazard updating and based on inaccurate information, will now be accurate, updated and useful for finding sex offenders. There are more than a half-million registered sex offenders in the United States. Those are the ones we know. Undoubtedly there are more. That number is going to go up. Over 100,000 of those sex offenders are registered but missing. That number is going to go down. We are going to get tough on these people. Some estimate it is as high as 150,000 sex offenders who are not complying. That is killing our children. Another important part of this bill will help prevent the sexual exploitation of children through the production of sexually explicit material. Every day we hear new stories about how pornographers and predators take advantage of new technology to exploit children in new ways. It is very difficult for legislatures even to keep up, and when we do pass new legislation, it is often stymied in the courts. Federal law requires producers of some sexually explicit material to keep records regarding the identity and age of performers and to make those records available for inspection. The current statute, however, was enacted before the Internet existed and covers only some sexually explicit material. The provisions in the act before us brings key definitions in the law up to date, extends the record keeping requirement to more sexually explicit material, and makes refusal to permit inspection of these records a crime. I want to thank John Walsh, host of ``America's Most Wanted,'' and his wife, Reve--who have waited nearly 25 years for this day. Next Thursday, July 27, 2006, marks 25 years since the abduction and subsequent murder of their son Adam--for whom this bill is named. And on that 25th anniversary the President will sign into law legislation that will help law enforcement do what John has been doing all along-- hunt down predators and criminals. I want to thank the National Center for Missing and Exploited Children for their tireless work and for their assistance with crafting this legislation. This is smart legislation and I am very proud of the Adam Walsh Act. I am determined that Congress will play its part in protecting the children of my home state of Utah and America. I have never been more excited to see a bill signed into law.

Mr. HATCH. Mr. President, I ask unanimous consent that the distinguished Senator from Virginia speak next, but also after him, the distinguished Senator from Texas and then the distinguished Senator from Washington, Ms. Cantwell.

Mr. HATCH

Mr. HATCH. I ask unanimous consent that the privilege of the floor be granted today and tomorrow for Dr. Vance Randall, a legislative fellow for education policy serving on my staff.

Mr. HATCH

Mr. HATCH. Mr. President, as one of the strong supporters of the Voting Rights Act, having supported it before in my Senate service, I have been very interested and, frankly, pleased with the comments that have been made. Let me add to what Senator Kyl said. Moreover, even if we are wrong about how George v. Ashcroft would have been interpreted and applied in the future, in any event, today's bill clearly ends any risk that section 5 of the Voting Rights Act will be applied as a one-way ratchet favoring Democrats or Republicans at the expense of one or the other. As the House committee report makes clear, the bill ``rejects'' the Supreme Court's interpretation of section 5 in George v. Ashcroft and establishes that the purpose of section 5's protection of minority voters is, in the words of the bill's new subsection (d), to ``protect the ability of such citizens to elect their preferred candidates of choice.'' It is important to emphasize this language does not protect just any district with a representative who gets elected with some minority votes. Rather, it protects only a district in which ``such citizens''-- minority citizens--are the ones selecting their ``preferred candidate of choice'' with their own voting power. I emphasize the words ``such citizens'' and ``preferred'' because they are key to this part of the bill and keep it consistent with the language abrogating Bossier Parish. Both parts have a limited but important purpose: protecting naturally occurring majority-minority districts. The new subsection guarantees that districters will not discriminate against creating such districts. And this new subsection (d) ensures they will not break up such districts, at least not when neutral districting principles continue to commend the creation of such a district. I note in passing that forcing the preservation of a noncompact majority-minority district likely would run afoul of the Supreme Court's ruling against racial gerrymanders in Shaw v. Reno. And, like subsection (c), all that subsection (d) does is protect naturally occurring majority-minority districts. By limiting non-retrogression requirements to districts in which ``such minority citizens'' are able with their own vote power to elect ``preferred candidates of choice''-- not just a candidate of choice settled for when forced to compromise with other groups--the bill limits section 5 to protecting those naturally occurring, compact majority-minority districts with which section 5 was originally concerned.