Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the Health Savings Accounts Improvement and Expansion Act of 2006. This bill will make it easier for businesses to provide the option of an HSA to their employees and for Americans to elect these plans. In short, this bill will make it more likely that Americans will have an HSA plan available when they are making their health care choices. This would be a good development for the individual consumer and the for nation's health care system as a whole. There is one thing on which we can all agree: our current health care system is broken. Health care expenses are far outpacing inflation. These escalating costs are pricing more and more Americans and small businesses out of the health insurance market. Unless we act, our health care costs are on pace to bankrupt the Federal Treasury. We need to do something. The American people want us to do something. Some favor an option that would give the Federal Government more control of the health care system. In my opinion, that doesn't really fix the problem, it only makes the problem worse--leading to higher costs, higher taxes, and decreased quality and availability. I believe the answer lies in bringing down costs by helping Americans to take control of their health care. Recognizing that a federally controlled universal system is a nonstarter, the House of Representatives has aggressively pursued the expansion and development of Health Savings Accounts. In particular, Congressmen Eric Cantor and Bill Shuster have taken laudable steps toward making these plans more readily available for American workers. Congressman Bill Thomas, chairman of the Ways and Means Committee, is demonstrating his and the House's commitment to these plans by holding a hearing tomorrow to discuss the development of health savings accounts. I am also proud to see that several of our Senate colleagues have introduced legislation that would expand consumer driven health care. Senators Santorum, Allen, DeMint, Ensign, and Coburn have introduced legislation to fuel the growth of health savings accounts. My bill complements these plans by encouraging employers to offer HSA accounts and by making it easier for workers to use them. Since Congress established HSAs in 2004, American workers have turned to them as an affordable health care alternative. Already, more than three million people have enrolled in HSAs. Without any changes to the law, it is estimated that by 2008 there will be six million HSA owners with almost $5 billion in assets. HSAs are popular. And they are popular because they work. HSAs are a different type of health insurance. They are more like car insurance than traditional health insurance: You pay for the dents and dings yourself, and your insurance only kicks in for major events. This makes sense. Think of how expensive your car insurance would be if every scratch on every bumper had to be paid for by insurance companies with no owner contribution. Yet critics allege that promoting this type of insurance unfairly burdens older Americans and the chronically ill--those with the most health care needs. I would note that the premise of this argument is off the mark. For many Americans and businesses, the cost of health insurance premiums are rising so astronomically that the choice is not between traditional first-dollar coverage or an HSA plan, but between an HSA plan and no insurance at all. As the Galen Institute--a research institute that has done excellent work reviewing the development of consumer-driven health care--has shown, HSAs are not only for the young and the healthy, but also for all health consumers along the age and income spectrum. In a survey by eHealthInsurance--an on-line health insurance broker representing more than 140 major health insurance companies--40 percent of HSA-eligible plan purchasers made less than $50,000. Forty-five percent of purchasers are over age 40 and 19 percent are 50 or older. Some argue that the healthy will migrate from traditional plans, leaving only the chronically ill in full coverage plans and driving up costs by shrinking the insurance pool. This argument ignores a critical fact. Younger workers aged 25-34 are currently the largest segment of the uninsured, in large part because insurance coverage is so expensive. They represent 23 percent of the total uninsured population. By bringing them into HSA plans, they will only bring premium costs down further for the chronically ill who establish an HSA. According to America's health insurance plans, AHIP, 37 percent of those purchasing plans were previously uninsured. Twenty-seven percent of policies sold in the small group market were sold to employers who did not previously offer coverage. According to Assurant Health, the leading health insurer for individuals and small groups, 40 percent of those purchasing HSAs were previously uninsured. Finally, it seems that American workers, and the chronically ill, are responding to the incentives provided by these consumer-driven plans. McKinsey & Company conducted an extensive survey of these plans. They held focus groups, performed one-on-one interviews, and produced an in- depth study of more than 2,500 Americans regarding their health insurance arrangements. They concluded that these plans have a lot of potential. In fact, some of their conclusions were remarkable. Fifty percent were more likely to ask about costs and three times more likely to choose a less extensive and expensive treatment option. HSA owners are also more likely to visit an urgent care center for treatment rather than a hospital emergency room. In addition, HSA consumers were more likely to be attentive to their health. Twenty-five percent were more likely to engage in healthy behavior and 30 percent were more likely to get an annual physical. These educated consumers understand that prevention will save them money in the long run. They were more likely to identify treatment options and they were 20 percent more likely to comply with treatment for chronic conditions. It is no surprise that people are enjoying their HSA plans. According to a survey by eHealthInsurance, premiums for HSA-eligible insurance actually dropped between the introduction of these plans in 2004 and the first half of 2005. Nearly two-thirds of HSA purchasers paid $100 a month or less for their plans. And these plans are comprehensive. Most cover 100 percent of the costs of hospitalization, lab tests, emergency room visits, prescription drugs and doctors' visits after the deductible is met. The continued expansion of HSAs will have a twofold effect. For those with insurance, the high deductible encourages more responsible, and less wasteful, health care decisions. For those without insurance, the wider availability and lower premiums makes it more affordable for individuals to purchase these plans in the nongroup market and for companies to provide insurance for their employees. The bottom line is that the expansion of these plans will create downward pressure on escalating health care costs. My proposal aims to make HSAs more attractive to employees, more attractive to employers, and more attractive to older workers. And the bill provides innovative ways for younger workers to contribute seed money to fund an account for their family. For employees, the primary benefits are increased contribution limits, and the ability to pay their health insurance premiums from the HSA--with pre-tax dollars. Presently, the portion of premiums paid out- of-pocket is paid with after-tax dollars. This feature will make HSAs affordable for more low and moderate income individuals. For employers, the bill provides incentives to move into low-cost premium arrangements. The health care costs of self-employed individuals and small employers who purchase plans in the non-group market should go down for those who avail themselves of these improved HSAs. For older Americans, this bill will permit contributions to an HSA as long as they continue to work. Today, more and more Americans are working past the age of 65. This is a trend we should encourage, because the labor force of the future will need more of these experienced workers. Senior citizens contribute a great deal to the workplace and our economy. I know that they are in Utah. Yet I hear from many of our older workers that because they are eligible for Medicare, they are ineligible for HSAs. Expanding contributions to a population that generally has more medical expenses makes sense. The cornerstone of my bill is a provision that allows HSAs to be funded with tax-free transfers of balances from other health or retirement plans. Participation in certain employer-sponsored health plans makes it impossible for employees to contribute to an HSA. For example, health reimbursement arrangements--HRAs--are plans that allow employers to reimburse substantiated employee medical expenses up to a maximum amount. Under current law, participation in an HRA disqualifies an individual from contributing to an HSA and remaining balances are subject to forfeiture. I believe that employers that have adopted HRAs would be more likely to offer HSAs if they are allowed a one-time opportunity to transfer individual HRA balances into HSAs. Allowing a one-time conversion opportunity would be very valuable for employees because the balances currently in HRAs would become employee-owned. Not only will this encourage responsible spending on health care, but it will also help to make health insurance more portable, a goal that discourages job lock and creates more freedom and opportunity for American workers. The bill provides for a tax-free transfer of IRA funds, originally allocated for retirement, to an HSA, with the money reallocated for health care expenses. This will be particularly helpful for those in need of initial seed money to open an HSA and for those who anticipate high medical expenses for which they are currently unable to tap IRA funds without penalty. My proposal will make it easier for veterans to participate in an HSA. According to Treasury Department guidance, a veteran may not contribute to an HSA if he or she has actually received medical benefits from the VA at any time during the previous 3 months. This bill would allow a veteran who receives VA medical benefits for a service-connected disability to be eligible for an HSA. I am pleased to tell my colleagues that the changes proposed by the Health Savings Accounts Improvement and Expansion Act of 2006 have been endorsed by a broad cross-section of major health care organizations. I am proud that the National Association of Health Underwriters, the American Benefits Council, the Council of Insurance Agents and Brokers, Assurant Health, the Chamber of Commerce, the National Business Group on Health, the Business Roundtable, and the Financial Services Roundtable have all endorsed my attempt to expand the availability of Health Savings Accounts. These groups know how important HSAs are in giving employees and employers the flexibility to meet their health care needs. Mr. President, I expect the popularity of HSAs will one day elevate the acronym to the level of IRAs, where no further clarification is required. Today, I ask my colleagues to join me in a bipartisan effort to accelerate that process by enacting this important legislation. I ask unanimous consent that a section-by-section description of the bill be printed in the Record.

Mr. HATCH. Mr. President, I rise today to introduce a bill that will eliminate the current limit on the amount individuals can place into a trust to provide for funeral expenses. Given the rising costs of funeral expenses, this change would have a positive impact on the lives of older Americans and on their families. In addition, according to the Joint Committee on Taxation, it would have a slight, but positive, impact on the Federal Treasury. Current law limits a funeral trust to $8,500, but this is generally no longer sufficient to cover a family's funeral expenses. In Utah, the average cost of a full funeral and burial is $12,685. I am sure that in many other States it is even higher. Because of this contribution limit, even those who preplan their own funerals too often leave their heirs with substantial expenses. Even those who attempt to cover the entire expense may not have enough to cover all costs after administrative fees and taxes are deducted. This proposal would make qualified funeral trusts more effective. The principal reason individuals set up qualified funeral trust plans is to lift a financial burden from their children. I recall the case of one constituent who wrote to me about this 3 years ago. He was suffering from Parkinson's disease began preplanning his own funeral so these decisions and this burden would be lifted from his children. Because of the ``QFT Cap'' which at the time was $7,800, this Utahn was not able to preplan completely the funeral services he desired. It became necessary to have one of his sons complete this preplanning for him by opening up his own trust that would help to cover all expenses. It seems silly to make families go to these extra steps when they are attempting to make responsible decisions, well in advance of need, for themselves and their families. For older Americans, the primary benefits of this legislation are the ability to have all the money they have saved in the trust to be applied to final expenses, instead of taxes, and the incentive to increase the amount of their contribution. Sixty percent of prefunded funerals were funded by trusts and elimination of the cap should raise this percentage. For funeral directors, this change would eliminate the burden and expense of issuing information documents to report income earned from the trust. I think we can all agree that we should make it easier for those who are willing to provide for these necessary expenses in advance. Today, I ask my colleagues to join me in an effort to enact this important measure. 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 Health Savings Accounts Improvement and Expansion Act of 2006. This bill will make it easier for businesses to provide the option of an HSA to their employees and for Americans to elect these plans. In short, this bill will make it more likely that Americans will have an HSA plan available when they are making their health care choices. This would be a good development for the individual consumer and the for nation's health care system as a whole. There is one thing on which we can all agree: our current health care system is broken. Health care expenses are far outpacing inflation. These escalating costs are pricing more and more Americans and small businesses out of the health insurance market. Unless we act, our health care costs are on pace to bankrupt the Federal Treasury. We need to do something. The American people want us to do something. Some favor an option that would give the Federal Government more control of the health care system. In my opinion, that doesn't really fix the problem, it only makes the problem worse--leading to higher costs, higher taxes, and decreased quality and availability. I believe the answer lies in bringing down costs by helping Americans to take control of their health care. Recognizing that a federally controlled universal system is a nonstarter, the House of Representatives has aggressively pursued the expansion and development of Health Savings Accounts. In particular, Congressmen Eric Cantor and Bill Shuster have taken laudable steps toward making these plans more readily available for American workers. Congressman Bill Thomas, chairman of the Ways and Means Committee, is demonstrating his and the House's commitment to these plans by holding a hearing tomorrow to discuss the development of health savings accounts. I am also proud to see that several of our Senate colleagues have introduced legislation that would expand consumer driven health care. Senators Santorum, Allen, DeMint, Ensign, and Coburn have introduced legislation to fuel the growth of health savings accounts. My bill complements these plans by encouraging employers to offer HSA accounts and by making it easier for workers to use them. Since Congress established HSAs in 2004, American workers have turned to them as an affordable health care alternative. Already, more than three million people have enrolled in HSAs. Without any changes to the law, it is estimated that by 2008 there will be six million HSA owners with almost $5 billion in assets. HSAs are popular. And they are popular because they work. HSAs are a different type of health insurance. They are more like car insurance than traditional health insurance: You pay for the dents and dings yourself, and your insurance only kicks in for major events. This makes sense. Think of how expensive your car insurance would be if every scratch on every bumper had to be paid for by insurance companies with no owner contribution. Yet critics allege that promoting this type of insurance unfairly burdens older Americans and the chronically ill--those with the most health care needs. I would note that the premise of this argument is off the mark. For many Americans and businesses, the cost of health insurance premiums are rising so astronomically that the choice is not between traditional first-dollar coverage or an HSA plan, but between an HSA plan and no insurance at all. As the Galen Institute--a research institute that has done excellent work reviewing the development of consumer-driven health care--has shown, HSAs are not only for the young and the healthy, but also for all health consumers along the age and income spectrum. In a survey by eHealthInsurance--an on-line health insurance broker representing more than 140 major health insurance companies--40 percent of HSA-eligible plan purchasers made less than $50,000. Forty-five percent of purchasers are over age 40 and 19 percent are 50 or older. Some argue that the healthy will migrate from traditional plans, leaving only the chronically ill in full coverage plans and driving up costs by shrinking the insurance pool. This argument ignores a critical fact. Younger workers aged 25-34 are currently the largest segment of the uninsured, in large part because insurance coverage is so expensive. They represent 23 percent of the total uninsured population. By bringing them into HSA plans, they will only bring premium costs down further for the chronically ill who establish an HSA. According to America's health insurance plans, AHIP, 37 percent of those purchasing plans were previously uninsured. Twenty-seven percent of policies sold in the small group market were sold to employers who did not previously offer coverage. According to Assurant Health, the leading health insurer for individuals and small groups, 40 percent of those purchasing HSAs were previously uninsured. Finally, it seems that American workers, and the chronically ill, are responding to the incentives provided by these consumer-driven plans. McKinsey & Company conducted an extensive survey of these plans. They held focus groups, performed one-on-one interviews, and produced an in- depth study of more than 2,500 Americans regarding their health insurance arrangements. They concluded that these plans have a lot of potential. In fact, some of their conclusions were remarkable. Fifty percent were more likely to ask about costs and three times more likely to choose a less extensive and expensive treatment option. HSA owners are also more likely to visit an urgent care center for treatment rather than a hospital emergency room. In addition, HSA consumers were more likely to be attentive to their health. Twenty-five percent were more likely to engage in healthy behavior and 30 percent were more likely to get an annual physical. These educated consumers understand that prevention will save them money in the long run. They were more likely to identify treatment options and they were 20 percent more likely to comply with treatment for chronic conditions. It is no surprise that people are enjoying their HSA plans. According to a survey by eHealthInsurance, premiums for HSA-eligible insurance actually dropped between the introduction of these plans in 2004 and the first half of 2005. Nearly two-thirds of HSA purchasers paid $100 a month or less for their plans. And these plans are comprehensive. Most cover 100 percent of the costs of hospitalization, lab tests, emergency room visits, prescription drugs and doctors' visits after the deductible is met. The continued expansion of HSAs will have a twofold effect. For those with insurance, the high deductible encourages more responsible, and less wasteful, health care decisions. For those without insurance, the wider availability and lower premiums makes it more affordable for individuals to purchase these plans in the nongroup market and for companies to provide insurance for their employees. The bottom line is that the expansion of these plans will create downward pressure on escalating health care costs. My proposal aims to make HSAs more attractive to employees, more attractive to employers, and more attractive to older workers. And the bill provides innovative ways for younger workers to contribute seed money to fund an account for their family. For employees, the primary benefits are increased contribution limits, and the ability to pay their health insurance premiums from the HSA--with pre-tax dollars. Presently, the portion of premiums paid out- of-pocket is paid with after-tax dollars. This feature will make HSAs affordable for more low and moderate income individuals. For employers, the bill provides incentives to move into low-cost premium arrangements. The health care costs of self-employed individuals and small employers who purchase plans in the non-group market should go down for those who avail themselves of these improved HSAs. For older Americans, this bill will permit contributions to an HSA as long as they continue to work. Today, more and more Americans are working past the age of 65. This is a trend we should encourage, because the labor force of the future will need more of these experienced workers. Senior citizens contribute a great deal to the workplace and our economy. I know that they are in Utah. Yet I hear from many of our older workers that because they are eligible for Medicare, they are ineligible for HSAs. Expanding contributions to a population that generally has more medical expenses makes sense. The cornerstone of my bill is a provision that allows HSAs to be funded with tax-free transfers of balances from other health or retirement plans. Participation in certain employer-sponsored health plans makes it impossible for employees to contribute to an HSA. For example, health reimbursement arrangements--HRAs--are plans that allow employers to reimburse substantiated employee medical expenses up to a maximum amount. Under current law, participation in an HRA disqualifies an individual from contributing to an HSA and remaining balances are subject to forfeiture. I believe that employers that have adopted HRAs would be more likely to offer HSAs if they are allowed a one-time opportunity to transfer individual HRA balances into HSAs. Allowing a one-time conversion opportunity would be very valuable for employees because the balances currently in HRAs would become employee-owned. Not only will this encourage responsible spending on health care, but it will also help to make health insurance more portable, a goal that discourages job lock and creates more freedom and opportunity for American workers. The bill provides for a tax-free transfer of IRA funds, originally allocated for retirement, to an HSA, with the money reallocated for health care expenses. This will be particularly helpful for those in need of initial seed money to open an HSA and for those who anticipate high medical expenses for which they are currently unable to tap IRA funds without penalty. My proposal will make it easier for veterans to participate in an HSA. According to Treasury Department guidance, a veteran may not contribute to an HSA if he or she has actually received medical benefits from the VA at any time during the previous 3 months. This bill would allow a veteran who receives VA medical benefits for a service-connected disability to be eligible for an HSA. I am pleased to tell my colleagues that the changes proposed by the Health Savings Accounts Improvement and Expansion Act of 2006 have been endorsed by a broad cross-section of major health care organizations. I am proud that the National Association of Health Underwriters, the American Benefits Council, the Council of Insurance Agents and Brokers, Assurant Health, the Chamber of Commerce, the National Business Group on Health, the Business Roundtable, and the Financial Services Roundtable have all endorsed my attempt to expand the availability of Health Savings Accounts. These groups know how important HSAs are in giving employees and employers the flexibility to meet their health care needs. Mr. President, I expect the popularity of HSAs will one day elevate the acronym to the level of IRAs, where no further clarification is required. Today, I ask my colleagues to join me in a bipartisan effort to accelerate that process by enacting this important legislation. I ask unanimous consent that a section-by-section description of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce a bill that will eliminate the current limit on the amount individuals can place into a trust to provide for funeral expenses. Given the rising costs of funeral expenses, this change would have a positive impact on the lives of older Americans and on their families. In addition, according to the Joint Committee on Taxation, it would have a slight, but positive, impact on the Federal Treasury. Current law limits a funeral trust to $8,500, but this is generally no longer sufficient to cover a family's funeral expenses. In Utah, the average cost of a full funeral and burial is $12,685. I am sure that in many other States it is even higher. Because of this contribution limit, even those who preplan their own funerals too often leave their heirs with substantial expenses. Even those who attempt to cover the entire expense may not have enough to cover all costs after administrative fees and taxes are deducted. This proposal would make qualified funeral trusts more effective. The principal reason individuals set up qualified funeral trust plans is to lift a financial burden from their children. I recall the case of one constituent who wrote to me about this 3 years ago. He was suffering from Parkinson's disease began preplanning his own funeral so these decisions and this burden would be lifted from his children. Because of the ``QFT Cap'' which at the time was $7,800, this Utahn was not able to preplan completely the funeral services he desired. It became necessary to have one of his sons complete this preplanning for him by opening up his own trust that would help to cover all expenses. It seems silly to make families go to these extra steps when they are attempting to make responsible decisions, well in advance of need, for themselves and their families. For older Americans, the primary benefits of this legislation are the ability to have all the money they have saved in the trust to be applied to final expenses, instead of taxes, and the incentive to increase the amount of their contribution. Sixty percent of prefunded funerals were funded by trusts and elimination of the cap should raise this percentage. For funeral directors, this change would eliminate the burden and expense of issuing information documents to report income earned from the trust. I think we can all agree that we should make it easier for those who are willing to provide for these necessary expenses in advance. Today, I ask my colleagues to join me in an effort to enact this important measure. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I will respond, but first I ask unanimous consent to allow the distinguished Senator from Alabama to speak, and then allow me to go next.

Mr. HATCH. Thank you, Mr. President. Mr. President, this amendment is a bipartisan amendment. It is overwhelmingly bipartisan. We have always gotten over 60 votes. The House of Representatives passes it overwhelmingly and gets the requisite two-thirds vote every time. It has always been stopped here in the Senate. Bringing it up at this time is certainly not an election-year ploy, as we have Democrats and Republicans who feel very deeply about this issue. It is bipartisan. The last time we brought it up was in the year 2000. If I had my way, we would have brought it up every one of those intervening years so the American people could really realize what is involved here. So today we begin the debate on the flag protection amendment. This is an important debate. This is a constitutional amendment. It ought to be difficult to pass any constitutional amendment, and they truly make it difficult, requiring a two-thirds vote of both bodies. Assuming we get those votes and it passes both bodies, it has to be submitted to the States, and 38 States would have to ratify it, at least 38, in other words, three-quarters of the States. I thank my colleagues on both sides of the aisle for supporting this effort. I especially thank my colleague, the chairman of the Judiciary Committee, Senator Specter, for working so hard to see this amendment through the committee. I thank my dear friend from Alabama who just spoke because, in his own cogent, very clear spoken way, he has made it very clear this is not some inconsequential, inconsiderate, partisan thing that is going on here. I also thank the majority leader, Senator Frist, for bringing it to the floor. Like I say, this is an important debate. A lot depends on this debate. In fact, I would say it is a critical debate. Should this amendment pass, we will restore--that is a very important word--the power of the people over their own Constitution. We will make it clear that in America it is the people, not the judges, who are sovereign. This is a debate worth having. There has been a lot of misunderstanding about this amendment. I believe even the distinguished ranking member on the committee has misconstrued this amendment in his remarks here today. This is what the amendment says. It is simple. It has nothing to do with free speech. The amendment says: The Congress shall have power to prohibit the physical desecration of the flag of the United States. Let's read that again. It does not ban anything. It says: The Congress shall have power to prohibit the physical desecration of the flag of the United States. This body and the other body will have the power. The other body has already voted it out of that body by a two-thirds vote. Some say we are only one vote short of having 67 votes. Some want to make this a partisan debate. It is not. Some want to make it an election-year debate. It is not. This is a bipartisan debate over whether we are going to stand up and restore the Constitution to what it was before five unelected Justices on the U.S. Supreme Court--to four who totally disagreed with them--decided to change the Constitution. Those who argue that this is a change of the Bill of Rights have failed to recognize there are millions in this country--the vast majority--who differ with those five unelected Justices. And there were four with an opinion, written by arguably one of the most liberal Justices on the court, Justice Stevens, saying that desecrating the flag is not free speech but offensive conduct. But even if you want to make that argument, it does not belong here in the context of this debate because what we are arguing is whether we can restore the Constitution to what it was before five unelected jurists, Justices, on the Supreme Court changed it. The Congress shall have power to prohibit the physical desecration of the flag of the United States. I have heard Senators on this floor criticize the administration and other administrations on both sides of the aisle saying that they have usurped the powers of the Congress of the United States. Yet some of them who are voting against this amendment turn around and fail to stop the usurpation of powers by the Supreme Court of the United States in a 5 to 4 decision. Well, don't miss the point here. The Congress shall have power to prohibit the physical desecration of the flag of the United States. That is what this amendment says. It is a simple statement of the power of the people and of their Representatives in Congress. So all the high-flown talk about the Bill of Rights and this is going to be the first time the Bill of Rights will be overturned--come on, the Bill of Rights was overturned when five unelected jurists changed it and changed the Constitution. Now we will get it back to the people. This amendment does not ban anything. It does not amend the first amendment. It does not prohibit speech. What it does is simple. It restores the power of the people's Representatives to protect the flag from acts of physical desecration. That is it. That is it. It is that simple. The Congress shall have power to prohibit the physical desecration of the flag of the United States. In the United States, we have government by the people. The Declaration of Independence makes it clear that in this country--for that matter, in any just political community--the people are sovereign. Sometimes we need to be reminded of this powerful truth. This is how Thomas Jefferson explained what he called ``the common sense of the matter.'' We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness--That to secure these Rights, Governments are instituted among Men-- Now, get this last part: deriving their just Powers from the Consent of the Governed. It is the first principle of the American founding, and it is one that the American people still hold true today. Government exists because of the people, and it only exists with their consent, meaning our consent. The Constitution affirmed this when it began with ``We the People.'' The people wrote the Constitution at the Convention. The people created the Congress and the courts. The people ratified the Constitution. They gave it life. And the people ratified the first amendment. Yet, for too long, some unelected judges have mistakenly concluded that it is the courts that have exclusive dominion over the Constitution. This is a chance for us to say to the Supreme Court: We are not going to let you intermeddle in the affairs of the people themselves with regard to the flag of the United States. For too long, some unelected judges have mistakenly concluded that it is the courts that have exclusive dominion over the Constitution. The Constitution began with ``We the People.'' The people wrote the Constitution at the Constitutional Convention. The people created the Congress and the courts. The people ratified the Constitution and gave it life. And the people ratified the first amendment. Yet the courts seem to say they are the only ones who have authority over the Constitution. This was certainly the case in 1989, when a severely divided Court reversed 200 years of American jurisprudence and overturned the considered judgment of the American people in almost every State. For generations, the American people provided protections for their beloved symbol, the flag. On June 20, 1989, 48 States and the District of Columbia had statutes that protected the flag from physical desecration. On June 21, 1989, all of those statutes suddenly became unconstitutional--all of the people's statutes, all of that work by all of these legislatures and the District of Columbia. All of them were ruled unconstitutional by five unelected Justices who were contested by four Justices on the Court. Now, how did this come to pass? One vote on the Supreme Court switched, one vote. That is it. One vote and the will of the people in virtually every State in the Union was overturned--in nearly every State. One vote, one person--five people. For many years, the Court well understood the obvious and compelling interest of political communities in protecting the American flag from desecration. In 1907, Justice Harlan wrote for the Supreme Court in Halter v. Nebraska. That decision reviewed a Nebraskan statute protecting the flag from physical misuse. This was Justice Harlan's--one of the all-time greatest Justices on the Supreme Court--conclusion: It is not remarkable that the American people, acting through the legislative branch of the Government, early in their history, prescribed a flag as symbolical of the existence and sovereignty of the Nation . . . [L]ove both of the common country and of the state will diminish in proportion as respect for the flag is weakened. Therefore, a state will be wanting in care for the well-being of its people if it ignores the fact that they regard the flag as a symbol of their country's power and prestige, and will be impatient if any disrespect is shown towards it. In short, there was a clear interest in providing protection for the American flag, recognized by one of the greatest Justices in the history of the Supreme Court. Now, following this holding in the Court, the National Conference of Commissioners on Uniform State Laws approved the Uniform Flag Act in 1917. Section 3 of that act provided that: No person shall publicly mutilate, deface, defile, trample upon, or by any word or act cast contempt upon any such flag, standard, color, ensign, or shield. Now, many States used this Federal statute as a model for their State statutes or to supplement existing statutes. There is no doubt that desecrating a flag is meant to express something. But as the late Chief Justice Rehnquist understood, that expression is more akin to an ``inarticulate grunt'' than a serious public statement when they desecrate the flag. The States concurred when they did their own balancing of the interests of the political community in protecting the flag with the interest of the individual in expressing himself. The Court agreed that not all expressive conduct could simply be labeled speech and given full first amendment protection. As the Supreme Court explained in United States v. O'Brien: [W]e cannot accept the view that an apparently limitless variety of conduct can be labeled ``speech'' whenever the person engaging in the conduct intends to express an idea. In instances where expressive conduct, not speech, is at issue, the Court must balance the interests of the community in prohibiting this conduct with the interests of the person who wishes to express himself or herself. With regard to flag burning, the Court's approach was measured. In Smith v. Goguen, the Court overturned a flag desecration conviction in Massachusetts, concluding that the statute which punished words and acts of desecration was void for vagrants. The Court added, however, that: nothing prevents a legislature from defining with substantial specificity what constitutes forbidden treatment of United States flags. This is the Supreme Court. The Court pointed to the Federal flag protection statute, one which prohibited only physical desecration rather than words, as an example of a constitutionally permissible statute. And so it was, until five unelected Jurists changed it-- actually, until one vote changed it, one vote combined with the four who had always voted against the flag. The Court and the people were in agreement. Not all expressive conduct can receive first amendment protection. The Government's interest in protecting the American flag from physical desecration was a real one. But be that as it may, we could argue right now about whether this is conduct or whether it is speech. The fact is, we are not talking about free speech. We are talking about restoring the Constitution to what it was before five unelected judges or Justices on the Supreme Court changed it. And it really came down to one changed vote on the Court because the Court had always upheld amendments that protected the flag from acts of physical desecration. The flag is a unique symbol of our nationhood that demands protection. The American people do not share a common religion or common political beliefs. We do not share a common ethnic heritage. But there are a few public symbols we do share as people. The American flag is a unique representation of our remarkable union. Its 13 stripes represent our origins as a nation, and its 50 stars, separate but unified on a field of blue, represent what we have become. From a small outpost of the Colonies fighting for freedom, we have become a beacon of liberty to the whole world. For years, interest in protecting this symbol was deemed strong and real enough to rebut serious constitutional challenges. What changed? Why do the American people no longer have the right to protect the flag from acts of physical desecration? Why can't the Congress do that? One vote switched and went with the other four, and all of these rights were gone. So to those who say this is a denigration of the first amendment, the first amendment was denigrated when five unelected Justices took the power away from the people. Prior to 1989, 48 States protected the flag, and the other two basically stood for protecting the flag, and the District of Columbia. I am not making this up. On June 20, 1989, nearly every State had laws protecting the flag from physical desecration. All those States rights, all the people's rights, were wiped out when one person changed his vote on the Supreme Court. One day later, after June 20, 1989, all of these State laws were unconstitutional. All that changed is the Supreme Court determined that it would disregard the beliefs of the American people and their representatives in Congress and in the States. When the Supreme Court had the opportunity to execute its balancing test in Texas v. Johnson, balancing the interests of the people and prohibiting certain conduct with the individual's interest in expressing himself in a particular manner, the Justices put their finger on the scale. They rejected as insufficient the States' interests, all of these States and their interests, one supported by the people in protecting the flag. They did not do so through a unanimous opinion. The Justices were severely divided, issuing a 5-to-4 decision. The dissent of Justice John Paul Stevens, arguably one of the most liberal Justices in history, was compelling. He dissented from that five-person majority case. He spoke for the opinion that the Court had arbitrarily abandoned. Here is what Justice Stevens said: The Court . . . is quite wrong in blandly asserting that respondent ``was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values.'' Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies. Had he chosen to spray-paint--or perhaps convey with a motion picture projector--his message of dissatisfaction on the facade of the Lincoln Memorial, there would be no question about the power of the Government to prohibit his means of expression. The prohibition would be supported by the legitimate interest in preserving the quality of an important national asset. Though the asset at stake in this case is intangible, given its unique value, the same interest supports a prohibition on the desecration of the American flag. That is Justice Stevens, who wrote the opinion for the Court and who many would arguably say may be the most liberal Justice on the Court. The American people agreed: the Court got this one wrong. They got it very wrong. So Congress acted immediately. We believed that Congress did have the power to protect the flag. For well over 100 years, the Court had upheld State and Federal protection measures. On July 18, 1989, two separate measures were introduced in the Senate. Former Senators Robert Dole, Alan Dixon, Strom Thurmond, and Howell Heflin introduced S.J. Res. 180, which would restore the power to protect the flag to the States and affirm the existing power of Congress to do so. On the same day, Senators Joseph Biden, William Roth, and William Cohen introduced the Flag Protection Act. While the amendment would have merely restored and confirmed the power of the people's representatives to protect the flag, as this resolution does, this statute which was filed by Senators Biden, Roth, and Cohen would have actually codified that legal protection. Ultimately, the Senate acted on the bill authored by my colleague from Delaware, Senator Biden. As chairman of the Judiciary Committee, he was committed to resolving this issue. He held four hearings with 20 hours of testimony and 26 witnesses. I was there. After consulting with many experts, he was convinced that his bill would pass constitutional muster. It was a great bill, consistent with the desires of the American people. It provided extremely broad protection for our American flag. This is what became law. This is Senator Biden's language and others of us who supported it: [W]hoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground or tramples upon any flag of the United States shall be fined under this Title or imprisoned for not more than one year, or both. This bill passed by an overwhelmingly bipartisan vote. There are not many things which go through the Senate on a vote of 91 to 9, but the determination to pass a constitutional statute to protect the flag from physical desecration was one of them. Going back and looking at that rollcall vote, we should be proud of our actions. Current Senators, including my colleagues on the Judiciary Committee, Senators Biden and Herb Kohl, supported the bill. So too did my colleague from Kentucky, Senator McConnell, who has since been elected majority whip. A number of other Senators who are no longer here supported this as well, including former Democratic leader Tom Daschle. It was a good bill. But the Supreme Court had other ideas. On June 11, 1990, the Supreme Court struck down this overwhelmingly congressionally approved statute in United States v. Eichman. Again, this Court was severely divided along familiar lines. So what now? What course of action is available to Congress? They have made it clear you can't do this by statute. They made it abundantly clear. The Court had given us its opinion. It said that statutory protection of the American flag was not content-neutral and therefore violated core constitutional rights to expressive conduct. An amendment really is the only way we can solve this problem. So Congress began to focus its attention on a constitutional amendment that would restore the power of the people to protect the flag from acts of physical desecration. Those who supported this amendment believed that the Court got this one wrong, badly wrong, and it was up to the people to correct these decisions. A constitutional amendment is really the only way to do it. I am not the only one who has thought so. Some of the most compelling statements on behalf of an amendment have come from my colleague from North Dakota, Senator Conrad. In the past, he argued forcefully for an amendment to fix this problem: Because I believe that the flag should have legal protection, I supported statutes last year and today to protect the American flag. But these attempts have failed. And now we are left with no other choice if we believe that the flag deserves protection. Senator Conrad went on to say: We should let the States decide this matter. If we fail to adopt an amendment today, we will deny the States the right to express their views on this matter. That was a statement made in 1990. By approving the constitutional amendment before us, we will foster a healthy debate in this country about the Bill of Rights, the freedoms we enjoy, our constitutional guarantees, and how we can legally and legitimately protect the flag. It is for these reasons that I will support a constitutional amendment in this body and let the people decide this important matter. I agree with that. That statement was made on June 26, 1990. He was right. This is the way to create a debate all over the country that would be a debate on virtue and values. I couldn't have said it better myself than the way Senator Conrad said it in 1990. An amendment really is the only way. In a recent letter on this subject, Stephen Presser, professor of legal history at Northwestern University School of Law, explained that an amendment was and remains our only option. He said: We were told by proponents of a statute to correct the Court's error in 1989 that they could draft one that would survive Constitutional challenge. I testified at a hearing before the Judiciary Committee at that time that it could not be done, and, sure enough, in 1990, the Supreme Court ruled in U.S. v. Eichman that the statute (which scholars such as Larry Tribe, for example, told us would be deemed constitutional) was unconstitutional. It is significant that Professor Tribe, along with his Harvard colleague Richard Parker have now clearly taken the position that no flag protection statute can pass Constitutional muster. They are correct: any statute would be deemed by the Court to be the government's unconstitutional favoring of one form of speech over another, and would thus be deemed to be unconstitutional content, discrimination with regard to speech. A constitutional amendment is the only way. The alternative is to do nothing. Congress believed that it had the power to protect the flag; the Court disagreed. I listen to many of my colleagues routinely complain that other branches are usurping the powers of Congress. I have heard that through my whole 30 years in the Congress. They are always complaining about the executive branch usurping the powers of Congress. The judicial branch is usurping the powers of Congress. Here we have a chance to restore those powers: The Congress shall have the power to prohibit the physical desecration of the flag of the United States. What does that ban? It doesn't ban a thing. All it says is that we are going to restore the power the Congress had before five unelected Jurists said we didn't have the power. When we passed the Flag Protection Act in 1989, we believed we had the power to pass that bill. The Court had different ideas. They overturned this overwhelmingly bipartisan legislation. We have an overwhelmingly bipartisan constitutional amendment here. It isn't partisan. It is bipartisan. We will have people come on the Senate floor and try to make this a partisan issue, which is all too frequent around here, and ignore the fact that a lot of colleagues on both sides of the floor, an overwhelming number, are in favor of this amendment. If we want a statute to do this, we need to restore our constitutional authority to pass it--the alternative to our constitutional amendment, a simple amendment, restoring the power to the Congress. That is all it does. If you listen to the media, they act like it is going to be a ban. It would not be a ban. If we can pass this amendment and have it ratified by 38 States, I have no doubt there will be a constitutional debate on the floor as to what language will protect our beloved flag. It would take at least 60 votes on the floor of the Senate to pass any language because of our filibuster rule, so it is going to take a supermajority no matter what. We are not about that right now. That has nothing to do with this amendment, except it would be inevitable. What has to do with it is restoring the power to the Congress which was taken by five unelected Justices on the Supreme Court. If we want this type of statute, it is important to restore our constitutional authority to pass it. As I said, the alternative to this amendment is to do absolutely nothing and acquiesce in the usurpation of our institutional power by another branch of Government. By doing nothing, we accede, through our inaction, to a decision by five unelected Justices who took the power from an American people over an important cultural issue. Abraham Lincoln addressed this issue before becoming President. What do you do when the Supreme Court gets it wrong? This is what Lincoln taught us: The candidate citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Well, that is what Lincoln had to say. Are we going to just continue to allow five unelected Jurists to determine what the vast majority of the American people believe is right or are we going to continue to determine that they are taking away the power that the Congress has always had? We should restore that power? That is what this amendment does. The answer in a democracy is that you let the people decide, especially on these sensitive, tough issues. I routinely hear some of my liberal colleagues who have recently re-minted themselves as progressives, complain that we don't listen to the people enough. They encourage direct democracy. They speak at blogging conventions. Let's see them put their money where their mouth is. There is nothing more discouraging to a democracy than a divided court abandoning its past precedent, overturning laws in 48 States, and overturning a duly passed Federal statute. The reasonable reaction of many Americans might be: why bother? Why bother to write and e-mail and petition Congress? Why advocate on behalf of legislation? When it is all said and done, the Supreme Court will appear deus ex machina and declare those laws unconstitutional, even absent any real precedent, text, or tradition to support its decision. Fortunately, that hasn't been the reaction among our Nation's civic groups. Everybody from the American Legion, to the Fraternal Order of Police, to the Knights of Columbus has urged Congress to support this amendment. They have been tireless in their efforts. They see this constitutional amendment for what it is. All this constitutional amendment does is restore power to the people's representatives in Congress. Read it again: The Congress shall have power to prohibit the physical desecration of the flag of the United States. All it does is restore it to where it was. It was the Court that changed the Constitution. It is not us changing it. We are trying to restore it to where it was and send a message to the Supreme Court that on these great social issues you have to let the elected representatives of the people make these decisions for the people, and you should quit playing around with issues for which you should not have responsibility but the people should. This is not a perennial partisan issue. This has not just been brought up because we are in an election year. I would bring it up every year if we could. The last time it came up was in 2000. This is overwhelmingly bipartisan. Republicans and Democrats, liberals, moderates, and conservatives all support our efforts. In fact, it makes you wonder who would not support it in the Congress because all we are trying to do is give the power back to the Congress. Quite the contrary. It is broadly supported on both sides of the aisle, and the groups supporting it are distinctly nonpartisan. At the Judiciary Committee markup of this resolution a few weeks ago, Senator Feinstein spoke eloquently on its behalf. She has been one of the amendment's strongest supporters. Last week, this is what she had to say in an editorial in USA Today: Throughout our Nation's history, the flag has been protected by law. In 1989, 48 of our 50 States had statutes restricting flag desecration. . . .But its protection ended in 1989, when the U.S. Supreme Court struck down a Texas law prohibiting flag desecration. Congress responded by passing the Flag Protection Act of 1989, but the Supreme Court struck down that law as well. The only way to restore protection to the flag is to amend the Constitution. Otherwise, any legislation passed by Congress would be struck down. The flag Protection Amendment would not prohibit flag burning. Rather, the amendment would simply return to Congress the ability to protect the flag as it has been protected throughout most of this Nation's history. That is what she said. This is not a partisan issue. I am confident that all of this constitutional amendment's supporters would prefer to see it off the agenda. We want it passed and sent to the American people for ratification. We are getting very close. We have voted on this amendment in the Senate only twice before. The last time we voted on it was in 2000. Right now, we have 60 upfront cosponsors. Three of my colleagues who are not cosponsors voted for the amendment as Senators in 2000. Another three voted for it while members of the House of Representatives. These are people who are not among the 60. In the case of Senator Menendez, he is going to have the opportunity to vote for it twice in the same Congress--once as a Member of the House, where he did, and now as a Senator. That is pretty unique. I have no doubt that if Members voted their consciences, we would be well above the required 67 votes. Unfortunately, radical special interest groups are strongly opposed to this amendment. It appears from some press accounts that they are prepared to bring down the hammer, unless some Members pull back their support with inspired and last- minute changes of heart. I know many newspaper editorial boards oppose this amendment. They still think it is a banning amendment. They think we are banning flag desecration. No, we are not. Right now, this amendment says the Congress will have the power to prohibit the physical desecration of the flag of the United States. It doesn't ban anything. Many law professors--or some at least--oppose this amendment. The ACLU opposes this amendment. But the people support it. It is insulting to them to suggest that they want to amend the first amendment, as the talking points opposed to our effort put it. This proposal does not amend the first amendment; it restores the power of the people to the people. Do over 60 colleagues oppose the first amendment? Bipartisan colleagues. Do the majority of Americans in every State oppose the first amendment? Do some of our Nation's finest civic organizations oppose the first amendment? Do four Justices on the Supreme Court of the United States oppose the first amendment? Of course not. But they do think the Court got these decisions badly wrong. They think the people have the right to protect the flag, consistent with the first amendment. They think the opinion of five unelected Judges should not forever bind the American people. We need to send this amendment to the States and let them determine whether they are going to ratify it. I guarantee you that it will create a debate on virtue, which has kept this country the greatest country in the world, and values, which our young people need to see more of. We will debate it in every State if we can pass this by 67 votes. It is beyond time. I do not know what so many of my colleagues fear. They say this is not a major issue. Who is kidding whom? This is the American flag. This is our national symbol. They say that flag burning is a rare occurrence. That is not that rare. As this chart indicates--and I will put it up here--flag desecration is an ongoing offense against common decency. These are recent incidents of flag desecration: Montpelier, VT, June 19, 2004; Littleton, NH, September 9, 2004; Las Vegas, NV, September 11, 2004; Sarasota, FL, December 20, 2005; St. Clair Shores, MI, August 27, 2005; Beaumont, TX; Hurricane, UT, July 4, 2005, right on Independence Day; Maryville, TN, July 4, 2005; Murrieta, CA, July 2, 2005; Sarasota, FL, June 28, 2005. There are many more listed here; that is just mentioning some of these. We know there are a lot more than that, I am sure. Look at this article that just happened a few days ago. A reward was offered Friday for information leading to the arrest of whoever burned seven American flags in the Marine Park section of Brooklyn this week. This is dated June 23, by the way, 2006, last week: The flags, including one that was hung by a couple after their son was killed in the September 11, 2001, terrorist attacks. They were burned in what police said was a case of criminal mischief. Residents of seven homes woke up Thursday morning to find their flags torched, police said. Investigators said they believe the flag burning occurred some time overnight. ``As we approach the celebration of our Nation's independence, this July 4, some vandal has defined our freedoms, rights, and liberties by setting fire to the American flag,'' said State Senator Martin Golden who offered a $1,000 reward. ``Flag burning is something we will not tolerate in our neighborhood''. Regina Coyle said: I can't believe someone would actually invade our personal space. We lost so much. It is the flag. Other residents said they found the vandalism equally upsetting. All I can say is that you can go back in time and find hundreds, maybe even thousands of these incidents. We are not even talking about those we don't know about. For the American people, and for me, even one instance of flag burning is one too many. My brother died in the Second World War fighting for us. Another brother-in-law died in Vietnam. We buried our top sergeant marine brother-in-law in Arlington a year or so ago. I feel deeply about this. The first amendment guarantees another right besides the freedom of speech. It gives the American people the right ``to petition the Government for a redress of grievances.'' I have to tell you, the American people are aggrieved, sick and tired of unelected judges taking the most important issues out of the hands of the people and their representatives and acting like junior legislators who will draft our social policies for us. This is bad for democracy, and it is inconsistent with the American Constitution. The American people have spoken in a historic event. All 50 States--every one of them--have petitioned the Congress to protect the American flag, every one of them. So if you hear some who are opposed to this constitutional amendment come on the Senate floor and say ``this is political, this is an election year,'' think about that. All 50 States have petitioned us to do what this amendment will do: restore the Constitution to what it was before these five unelected Justices changed it. As I said before, if we are to be responsive to our constituents, we only have one option: We must pass this amendment and send it to the States for ratification. I understand some of my colleagues have some reservations about the amendment. Some are very sincere--not all but some are. I urge them to trust the people, to trust their instincts. This amendment is not going away so long as I serve in the Senate. I will certainly fight for it. Should we pass this amendment, I think we would see perhaps the greatest public debate that we have witnessed in our lifetime. The debate over ratification in every State will be an ongoing history lesson for younger Americans. It will bring them in contact with our veterans to whom we owe our freedom, and it will introduce them to the civic organizations that are the soul and spirit of our democracy. Yes, there are some very fine people and noted people who don't think we should do this, but if you look at their comments, they are not that they don't think we should restore to the Congress that which the Congress should have. They are actually treating this amendment as if it is an absolute ban of free speech when, in fact, it has nothing to do with that. I have to admit, if we pass this amendment and it is ratified, I am sure there will be a debate over what form of language should we have to protect our beloved flag. What is important is to have our young people come in contact with the veterans and others to whom we owe our freedoms. The Constitution begins with ``We the people,'' and in the end it is still we the people, it is the people's Constitution. We should send this constitutional amendment to the States. I want everybody to think about this. As we hear them talk about: Oh, we must protect our rights of free speech, and so forth, this doesn't have anything to do with free speech. Read the words. Indirectly, I guess you could say it does in the sense that undoubtedly there will be a debate if this is passed and ratified, but it would still take a supermajority of the Senate to pass any form of statute afterwards. There would be plenty of protections for those who would disagree with our position. But for those who argued against this amendment, many of whom are constantly arguing about the usurpation of congressional powers by the Executive, especially when the Executive is not of their own party, this is a chance to restore the power back to the Congress that should never have been taken by five unelected Jurists to begin with. We should send this amendment to the States. We should let the people decide because, after all, that is all we would be doing. If we pass this constitutional amendment, we will be turning it over to the people themselves. Whatever people want to debate they can, and it would take an overwhelming 38 States, or three-quarters of the States, to ratify this amendment so that it would become the 28th amendment to the Constitution. I can't think of a more complete declaration of the rights of the people than this particular very simple amendment that ``Congress shall have power to prohibit the physical desecration of the flag of the United States.'' Mr. President, I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, I am disappointed that we are considering legislation that would force the United States to withdraw our troops before we have finished the job in Iraq. It is ironic. Some of my friends on the other side of the aisle fight over judicial nominations, they fight the President while he is trying to protect our country, and they fight each other. Just about the only thing they are unwilling to fight is an actual war. Let me be clear: We got into the war committed to success, and I am never going to allow us to cut and run. Let me remind everyone that bin Laden inspired his followers with his view that America was easy to defeat. Let's not do anything to confirm his skewed vision. When we leave Iraq, let's make sure it is stable and secure enough to defend itself. Last Thursday, we had our first vote on pulling out the troops. We voted on a proposal by the distinguished Senator from Massachusetts who seeks to require the President to set a date for withdrawal by December 31, 2006. Wisely, my colleagues voted down the proposal by a 93 to 6 vote. Now that is a pretty telling vote in today's partisan atmosphere. The minority is now seeking a scheduled phaseout withdrawal, which would set an artificial deadline that would only encourage and embolden our Nation's enemies. I am sure this will get more votes than the previous proposal, but it clearly doesn't have the votes to pass, and it shouldn't. The enemy will use this estimate and tell the Iraqi population that the United States is leaving. This could have tremendously harmful repercussions. The United States clearly has a strategy for meeting this difficult challenge in Iraq. Some of those on the other side insist on focusing on the difficulties, while asserting that we have no strategy. Our goal is to stay in Iraq as long as necessary, but not one day longer. Our strategy is to ensure that the Iraqi people have developed a secure constitutional government that embodies a national compact between all Iraqi groups. And it is training their forces to provide for their own security. We have made significant progress. The Iraqis have formed a national government, and they are taking more and more responsibility for their security. In fact, Iraq has nearly 265,000 trained security forces now-- including 115,000 for defense--and that is building daily. Our troops are serving with Iraqi units and running joint combat operations. We also have--in conjunction with Iraqis--put Al-Qaida, the Saddamites and the Sunni insurgents on the defensive. They spend more time running from us than they do attacking us, although we all agree they are still lethal. I think it is shameful that we are even considering proposals to withdraw our troops before the job is done in Iraq. We have seen the cost of U.S. withdrawal before, and we should learn from our past history. If our Nation sets an artificial deadline for the removal of our forces, all our adversaries need to do is husband their resources until we leave and then emerge, possibly destroying all of the accomplishments to date. That is not a plan for success--that is a plan for failure.

Mr. HATCH. Mr. President, I thank my colleague from Georgia and my colleague from Arizona. What is the bottom line here? Simply put, Senator Chambliss has offered an amendment that is supported by the ministration that will enable the Air Force to buy 20 F-22s Raptors a year for the next 3 years. By entering into this multiple year contract, the independent Institute for Defense Analysis believes that the American taxpayer will save at least $225 million. Why are we buying the F-22? Because it is a war-winner. This fighter, which is also a very capable bomber, is now operational with the 1st Fighter Wing. The Raptor is stealthier than the famous F-117 Nighthawk, which dropped the first bombs during the first gulf war. But unlike the Nighthawk, that must fly at night in order to survive in a combat environment, the F-22 brings stealth capability out of the night, enabling operations in high threat areas 24 hours a day 7 days a week. I have been to the Air Force base where I have talked with the pilots and have seen this plane and have seen it fly. It is a marvel. The Raptor is the world's most lethal and maneuverable fighter aircraft. This is accomplished in no small part by its supercruise engines. Supercruise engines do not need to go to after-burner in order to achieve supersonic flight. This provides the F-22 with a strategic advantage by enabling supersonic speeds to be maintained for a far greater length of time. By comparison, all other fighters require their engines to go to after-burner to achieve supersonic speeds. This consumes a tremendous amount of fuel and greatly limits an aircraft's range. Another legitimate question is why not just rely on the aircraft we have today? Over the past 30 years, the United States has been able to maintain air superiority in every conflict largely due to the F-15C. However, with the great advancements in technology over the past several years, the F-15 has struggled to keep pace. For example, the F- 15 is not a stealth aircraft and its computer systems are based on obsolete technology. My colleagues should remember that the F-15 first flew in the early 1970s. During the ensuing years, nations have been consistently developing new aircraft and missile systems to defeat this fighter. Obviously, we need the F-22 and we have identified a means to save money while we are buying it.

Mr. HATCH. Mr. President, today I rise as an ardent supporter of the F-22A Raptor. I am very pleased that the Armed Services Committee has modified the Department of Defense's budget request and authorized the procurement of 20 F-22s during the next fiscal year. That being said, I must express my disappointment that the committee did not include in this legislation language authorizing the Secretary of the Air Force to enter into a multiyear procurement contract to purchase 20 Raptors a year for the next 3 years. Under such a contract, the Institute for Defense Analyses estimates that we will save the taxpayer at least $225 million. Therefore, I am proud to join Senator Chambliss and cosponsor this important amendment along with Senators Inhofe, Lieberman, Bingaman, Cornyn, Thune, Bennett, Isakson, Domenici, Baucus, Dodd, Hutchison, Collins, Ben Nelson, Feinstein and Stevens. Our amendment only strengthens the procurement plan for this vital aircraft. I am also troubled that this bill does not increase above the 183 currently planned the number of F-22s that the Air Force is authorized to procure. My trepidation that our Nation will not build a sufficient number of aircraft is based on careful study of our Nation's needs and on the advice and counsel of senior Air Force officers who have been unanimous in their expert opinion that if the Air Force is to meet its responsibilities under the National Military Strategy, the Nation requires 381 Raptors. I have seen first-hand the capabilities of this extraordinary aircraft, first at Tyndall Air Force Base, FL, where our pilots are learning to fly the Raptor, and second at Langley Air Force, VA, where the first operational F-22s are based. As a result of these meetings with pilots and ground personnel and several other briefings on our future preparations, I have come to the conclusion that purchasing sufficient numbers of Raptors is absolutely vital to our national security. Over the past 30 years, the United States has been able to maintain air superiority in every conflict largely due to the F-15C. However, with the great advancements in technology over the past several years, the F-15 has struggled to keep pace. For example, the F-15 is not a stealth aircraft and its computer systems are based on obsolete technology. My colleagues should remember that the F-15 first flew in the early 1970s. During the ensuing years, nations have been consistently developing new aircraft and missile systems to defeat this fighter. Realizing that the F-15 would need a replacement, the Air Force developed the F-22. The F-22's combination of stealth, supersonic cruise, advanced maneuverability, and sensor-fused avionics makes this aircraft a powerful deterrent to countries contemplating a challenge to U.S. interests, and defines the essence of a true fifth generation fighter. So far during the current exercise Northern Edge in Alaska, the F-22A has achieved a kill ratio of 144:0. Not one F-22 has been simulated ``shot down'' while 14 legacy F-15s and F-18s in the exercise have been simulated ``shot down.'' One-hundred-and-forty-four to zero, that is the way American forces should go to war. The F-22 has the greatest stealth capabilities of any aircraft currently flying or under design. This is a powerful attribute when one remembers that it was the F-117 Nighthawk's stealth characteristics that enabled that aircraft to penetrate the integrated air defenses of Baghdad during the first night of the 1991 gulf war. The F-22 brings stealth capability out of the night, enabling operations in high threat areas at the place and time chosen by combatant commanders, 24 hours a day seven days a week. The Raptor is also equipped with supercruise engines. These engines do not need to go to after-burner in order to achieve supersonic flight. This provides the F-22 with a strategic advantage by enabling supersonic speeds to be maintained for a far greater length of time. By comparison, all other fighters require their engines to go to after- burner to achieve supersonic speeds. This consumes a tremendous amount of fuel and greatly limits an aircraft's range. The F-22 is also the most maneuverable fighter flying today. This is of particular importance when encountering newer Russian-made aircraft and surface-to-air missile systems, both of which boast advanced, highly impressive capabilities against our legacy F-15, F-18, and F-16 aircraft. Yet, a further advantage resides in the F-22's radar and avionics. When entering hostile airspace, the sensor-fused avionics of the F-22 can detect and engage enemy aircraft and surface threats far before an enemy can hope to engage the F-22. At the same time its advanced sensors enable the F-22 to be a forward surveillance platform gathering crucial intelligence on the enemy. However, one of the most important capabilities of the Raptor is often the most misunderstood. Many critics of the program state that, since much of the design work for this aircraft was performed during the Cold War, it does not meet the requirements of the future. I believe this criticism is misplaced. The F-22 is more than just a fighter--it is also a bomber. In its existing configuration it is able to carry two 1,000 pound GPS-guided JDAM bombs and will undergo an upgrade to carry eight small diameter bombs in the near future. In 2008, the F-22's radar system will be enhanced with advanced air-to- ground modes, enabling the Raptor to hunt independently and destroy targets on the ground. All of these capabilities are necessary to fight what is quickly emerging as the threat of the future--the anti-access integrated air defense system. Integrated air defenses include both surface-to-air missiles and fighters deployed in such a fashion as to leverage the strengths of both systems. Such a system could pose a very real possibility of denying U.S. aircraft access to strategically important regions during future conflicts. It should also be noted that--for a comparably cheap price--an adversary can purchase the Russian SA-20, surface-to-air missile. This system has an effective range of approximately 120 nautical miles and can engage targets at greater then 100,000 feet, much higher than the service ceiling of any existing American fighter or bomber. Surface-to- air missiles, with similar capabilities, have been sold to Iran. The Russians have also developed a family of highly maneuverable fighters, the SU-30 and 35s, which have been sold to such nations as China. Of further import, 59 other nations have fourth generation fighters. It has also been widely reported in the aviation media that the F- 15C, our current air superiority fighter, is not as maneuverable as newer Russian aircraft, especially the SU-35. However, the F-22 is designed to defeat an integrated air defense system. By utilizing its stealth capability, the F-22 can penetrate an enemy's airspace undetected and, when modified, independently hunt for mobile surface to air missile systems. Once detected, the F-22 would then be able to drop bombs on those targets. Some correctly state that the B-2 bomber and the F-117 could handle these assignments during night only operations. However, the F-22 offers the additional capability of being able to engage an enemy's air superiority fighters, such as the widely proficient SU-35. Therefore, the Raptor will be able to defeat, almost simultaneously, two very different threats, 24 hours a day, that until now have been handled by two different types of aircraft. I should like to point out that these potential threats are not just future concerns, but they are here today. For example, over the last 2 years, the Air Force has conducted exercises with the Indian Air Force as part of our effort to strengthen relations with that nation. The Indian Air Force has a number of SU-30 MKKs, an aircraft which is very similar to a version of aircraft sold in large quantities to the People's Republic of China. During these exercises, it has been widely reported in the aviation and defense media that the Indian Air Force's SU-30s won a number of engagements when training against our Air Force's F-15s. So let me be clear on this point: a developing nation's air force was able to defeat the F-15. This was a stunning event and one that requires our immediate attention. Now that this fact has been established, the question that we must ask ourselves is: How do we remedy this national security concern? The F-22 provides the answer. Though the F-22 may be the solution to these problems, if the Nation does not purchase a sufficient number of these aircraft our service members could face unnecessary dangers and risks. Many others and I have come to this conclusion after closely listening to our service members when they have outlined their equipment requirements based upon the national security goals our Government has outlined. What is their professional opinion? That if the Air Force is to succeed in the tasks outlined in our National Defense Strategy, our airmen and women require 381 F-22s, far more then the 184 aircraft currently planned. However, another important consideration is cost. In a period of runaway procurement costs, we are not only concerned about the effort to procure the correct number of F-22s but to procure them at a reasonable price. That is exactly what this amendment achieves. It authorizes a multiyear procurement plan for the Raptor, in which 20 aircraft a year over 3 years will be purchased. This will result in the taxpayer saving approximately $225 million under the existing plan to purchase 184 aircraft. Introducing innovative plans to save funds is nothing new to the F-22 program. In fact, since production first began on this aircraft, the ``fly-away'' cost has been reduced by 35 percent. However, we must take advantage of any opportunity that will result in additional savings while increasing our military capabilities. A multiyear F-22 procurement plan achieves that goal. If this amendment is adopted, the Air Force will be permitted to enter into a multiyear procurement contract. However, some of our colleagues argue that the F-22 does not meet the six-point requirements for multiyear procurement under existing law. I, on the other hand, believe these criteria have been met and the amendment before us should be seen as reinforcing that fact. Specifically, the first requirement to authorize a multiyear contract under the existing statute is the determination that substantial savings will result from the contract. The Institute for Defense Analysis estimates that a multiyear contract will result in at least $225 million in savings. The second criterion states there must be a ``minimum need'' for the aircraft. I believe that my address today has shown the urgent need to deploy the Raptor in order to counter the deployment of fourth generation fighters and new antiaccess systems. As far as a minimum need is concerned, as a result of the Joint Air Dominance Study the Secretary of Defense stated that a minimum requirement for 183 Raptors existed. Under the administration's proposal, which this amendment is based upon, the production rate, procurement rate and the total quantities of the Raptor purchased will be substantially unchanged during the contract period. Remember, the contract calls for the purchase of 20 Raptors a year over the next 3 years. The third requirement insists that the Raptor be a program with stable funding. The Armed Services Committee has added additional funds for this year and the Department of Defense's future budgets will also contain funding requests since the purchase of F-22s under a multiyear procurement contract was called for in the Quadrennial Defense Review. Fourth, the aircraft's design must be stable. This is probably the most controversial requirement. Yes, the F-22 has had its problems during the development and production process, but I challenge anyone to identify another strike aircraft that hasn't. Remember, the F-22 is now operational. That means the Raptor will deploy in support of our service members and it has satisfactorily completed the engineering and manufacturing development phase as well as its follow-on operational test and evaluation. It is important to note that any upgrades to the Raptor will not result in significant structural changes. Some might argue, correctly, that a potential problem with the forward boom frame heat-treating has been identified on up to 91 aircraft. It is important to note that this was not an aircraft design problem, but an issue of a manufacturer not following the prescribed manufacturing process. In reality, testing has so far shown that 92 percent of the suspect frames tested did in fact undergo an adequate manufacturing process. I have been advised that neither a redesign nor a refit are planned or expected. Regardless, the manufacturer has been replaced and all aircraft procured under a multiyear agreement will not have this problem. Fifth, a program must show that its cost estimates are realistic. The Air Force has gone above and beyond the call of duty in providing the Congress with independent cost analysis. The Institute for Defense Analysis provided an Independent Cost Estimate in 2005 and with a multiyear procurement business case analysis in May of this year. Finally, the last requirement of a multiyear procurement plan is the determination that the program is important to the national security of the United States. I believe that we have already established conclusively that the Raptor is the answer to the present and future threats posed by antiaccess systems. Therefore, I believe that the Raptor qualifies for a multiyear procurement contract under the existing statute. However, to ensure there is no doubt on this subject, I strongly recommend this amendment to my colleagues. Our Nation stands at a crossroads. In a wide variety of policy arenas, the Senate is being asked to make investments that will reap rewards for our children and our grandchildren. The F-22 is one of these investments. It will guarantee America's dominance of the skies for the next half century. All that is required is that we make a commitment now to ensure that future. By purchasing adequate numbers of F-22 Raptors we are meeting the threats of today and tomorrow and we are doing so in such a way as to maximize the savings of the American taxpayer. I thank Senator Chambliss for offering this important amendment, and I urge my colleagues to join my fellow cosponsors, Senators Inhofe, Lieberman, Bingaman, Cornyn, Thune, Bennett, Isakson, Domenici, Baucus, Dodd, Hutchison, Collins, Ben Nelson, Feinstein and Stevens in supporting this amendment.

Mr. HATCH

Mr. HATCH. Mr. President, I am proud to rise with my colleague, Senator Durbin, to introduce S. 3546, the Dietary Supplement and Nonprescription Drug Consumer Protection Act. We are joined in this effort by Senators Harkin, Enzi, and Kennedy. As my colleagues are aware, over half our population regularly uses dietary supplements. In fact, one government survey in 2004 indicated that nearly 60 percent of Americans regularly use dietary supplements to maintain or improve their healthy lifestyles. Nearly 12 years ago, Senator Harkin and I joined with then- Representative Bill Richardson to author the Dietary Supplement Health and Education Act, DSHEA, which sets out the framework by which the Food and Drug Administration, FDA, regulates dietary supplements. Since that time, the industry has grown. By some estimates, it is a $20 billion industry today. Critics of the industry see this growth as a negative, as an indication that the industry is ``unregulated.'' I disagree. I think the growth of dietary supplement sales is testimony to a vibrant industry that is producing positive benefits for our economy and our people. This is an industry that is largely comprised of men and women of good will, who want to provide the public with healthy products. Let me hasten to add that we all recognize there are bad actors in the supplement industry, those who break the law and mislead consumers. They should be the subject of swift and sure punishment by the FDA and the Federal Trade Commission. Their products should be removed from the marketplace and the full weight of the law should be brought down on these bad actors. It is no secret that the FDA is a woefully underfunded agency, which will be the first to admit that its oversight of the dietary supplement industry has not been as aggressive as it could be, in part due to a lack of resources. For several years, Senator Harkin and I have worked to rectify that shortcoming, and we are gratified that our Utah colleague, Senator Bennett, chairman of the Agriculture Appropriations Subcommittee, has joined hands with us to infuse some badly needed resources into the FDA. When DSHEA was being debated in the Congress, one of the major points of contention was the belief by some that dietary supplements should be subject to premarket approval by the government. That would sound the death-knell for this industry, an industry that is largely comprised of products which have been sold safely for decades, if not centuries in many cases. In 1994, the Senate agreed not once, but twice, to approve DSHEA by unanimous consent. The House also passed this bill by UC. It was not controversial. Members recognized that supplements are largely safe. But just to make doubly sure there was adequate regulation, we provided the FDA with an arsenal of tools to take action against problematic products. Then comes ephedra. I do not think it is a constructive exercise to rehash the history of ephedra. There were mistakes and problems all around in how this product's safety was evaluated and addressed. But something did stand out: one company had literally hundreds, if not thousands, of reports about products with this product, none of which were revealed to Federal authorities. There is no question in my mind that the too-long safety evaluation of ephedra would have been shortened considerably had we known earlier about these reports. Two years ago, I began discussing with those who are interested in dietary supplement regulation whether it would be wise to implement a system of mandatory adverse event reporting, AER, for those products. While as a general principle, I am usually reluctant to argue for greater government regulation, in this instance it seemed to me a case could be made that an AER system for supplements could complement the work we achieved with DSHEA and improve the government's ability to address the relatively few problems which arose. Senator Durbin and Senator Harkin were also having similar thoughts. We joined forces and after much study, discussion and negotiation, produced S. 3546. It may be surprising to many of our colleagues that Senators Hatch, Durbin, Harkin, Enzi and Kennedy stand together on this legislation--we come from very different perspectives on dietary supplement regulation. And while we are each very passionate about our views, we are united in a common goal: improving the public health. The premise for this bill is simple: mandating a system to provide the government with information about serious adverse events associated with the use of two types of FDA-regulated products--dietary supplements and over-the-counter drugs--provides Federal authorities with a better tool to respond to any problems which might occur. This is an important public health initiative, which at the same time safeguards access to dietary supplements and over-the-counter drugs. There is currently a voluntary reporting system for supplements and some OTC drugs--our bill would replace that with a mandatory system. Senator Harkin and I have a longstanding interest in regulation of these products, stemming back to our work on DSHEA. Senator Durbin, as the former chair of the House Agriculture Appropriations Subcommittee, is one of the most knowledgeable Senators in this body when it comes to FDA matters. Our collaboration on this legislation, along with the distinguished chairman and ranking minority member of the committee of jurisdiction, the Health, Education, Labor and Pensions--HELP--Committee, both of whom were integral to this process, has produced a bill which strikes the right balance between necessary regulation and over-regulation. This is how the new system will work: Manufacturers, packers or distributors of OTC drugs or dietary supplements marketed in the United States must provide to the FDA within 15 business days any reports of a serious adverse event associated with their products. Accompanying that report must be a copy of the label on or within the retail packaging of the supplement. The definition of serious event is proscribed within the legislation. It is either an event that results in a death, life-threatening experience, inpatient hospitalization, persistent or significant disability or incapacity, or congenital anomaly or birth defect; or it is an event that requires based on reasonable medical judgment a medical or surgical intervention to prevent one of the outcomes I have just listed. The bill requires that those reporting must, for 1 year, provide any new medical information related to the serious adverse event report. Again, that information must be submitted within 15 days. In addition, manufacturers, packers and distributors must keep for 6 years records of any adverse event associated with the product, even though there is no reporting requirement unless the event meets the definition of serious. For over-the-counter drugs, the definition of ``adverse event'' is a health-related event associated with the use of a nonprescription drug that is adverse, including: an event occurring from an overdose, whether accidental or intentional; an event occurring from abuse of the drug, or withdrawal from the drug; or any failure of pharmacological action. For dietary supplements, an ``adverse event'' is defined as any health-related event associated with the use of a dietary supplement that is adverse. The reports will be submitted on the current MedWatch form, unless the Secretary of Health and Human Services chooses to modify that form at some point. The bill makes clear that State health officials may have access to the adverse event reports, but that the Federal reporting system would supersede any state reporting laws. As we met to develop this legislation, one thing we struggled with was the need to encourage responsible reporting in a way that manufacturers could implement. Some manufacturers indicated to us, for example, that they were not medical experts and could not determine in every case if a reporter's problem met the definition of ``serious'' contained in the bill. To address this, we allow manufacturers to contract with third parties to handle the collection of reports. The manufacturers, of course, would still be ultimately responsible for reporting. We have also asked the FDA to issue guidance to help manufacturers interpret what a serious adverse event might be. Another concern was making certain we appropriately defined the role of retailers, who are selling a range of products, some supplements, some OTCs, some not. We determined that retailers would not be considered reporting parties. If, however, a retailer contracts with manufacturers to distribute ``private label'' products, he or she may authorize the manufacturer or packer to submit reports, as long as the retailer directs to the manufacturer all reports it receives. We also wanted to allow the FDA the flexibility to manage this program. At its request, we made the program self-implementing. We also included a provision to allow the Secretary, after notice and comment from interested parties, to establish an exemption to the reporting requirements if there would be no adverse effect on public health. Finally, there are provisions in the bill to impose penalties for not reporting, not providing on the product label an address or phone number for reporting, and for providing a false report. The law will go into effect 1 year after the date of enactment. Before I close, I want to address some of the concerns that representatives of the dietary supplement industry have voiced with this legislation. First, some have suggested there is no need for this legislation from a public policy or a consumer safety perspective. I disagree. Many have unfairly criticized the industry over media reports that supplements are unsafe because there is no premarket approval. While I can never support any system that requires premarket approval for supplements, I have become convinced that having a system in place to identify problems quickly can only enhance the authorities we gave the FDA with DSHEA. It is also good policy. As the industry matures, we need to separate out the good actors from the bad. This is one way to show that this industry is a respectable, mainstream industry. Other major industries--e.g. pharmaceuticals, devices--are subject to mandatory AER reporting. Supplements are only handled through the voluntary reporting system. And, I disagree with those who avow there is no consumer safety benefit. Let's take an easy case--where there is a bad batch of a product. Enabling the FDA to know quickly there is a problem can help industry and the public. Other critics note that the FDA fails to pursue egregious violations of DSHEA. They question why this program will help. As I discussed earlier, Senator Harkin and I have been working to increase FDA's funding for responsible enforcement of DSHEA. I recently discussed this with the Commissioner-nominee, Dr. Andrew von Eschenbach. One of my constituents who opposes this effort suggested that the FDA's voluntary system, the CAERS system, should be able to handle any reports of problems. Public health experts will agree that a voluntary system is not as good a sentinel as a mandatory system. In addition, those who report under the voluntary system are more likely to be physicians. Encouraging consumers to report to manufacturers through a phone number or address on the product's label will ensure a more thorough reporting system. Yet another concern I have heard is that this bill has a significant economic impact that has not been studied appropriately. One estimate I have heard is that it could cost tens of millions of dollars a year to industry and consumers. I have to say that these estimates do not seem to be supported by other industry representatives, many of whom are already instituting reporting systems of their own. During the drafting of this bill, we worked very hard to keep requirements to the minimum that would be necessary for a complete and full reporting of serious adverse events. In addition, I have heard a suggestion that a better alternative to this bill would be a 1-800 number that consumers can use to contact FDA directly to report complaints. I discussed this with my colleagues and the FDA and found little support for this idea. What this could do is shift onto FDA the majority of reports about product problems. In other words, FDA fears that consumers would start phoning the agency, rather than the manufacturer, to report complaints for things like broken bottles or tablets, or to answer questions about usage. It is easy to see how this could end up relieving manufacturers of some of their consumer-related responsibilities and shift that onto the FDA. Let me hasten to add that I understand the motivation behind these concerns. I will keep a close watch on this new program as it is implemented, and pledge to reexamine it should problems with implementation arise. In closing, I thank my colleagues for the spirit of collaboration which led to development of this legislation. In particular, I thank Senator Durbin for his leadership on this issue. While we may not have always agreed on every provision, we did forge a bill on which we can agree. Senator Harkin is a steadfast supporter of the dietary supplement industry, and his guidance undoubtedly made this bill a better product. Senator Enzi and Senator Kennedy, both longtime experts in food and drug law, have both been most generous in their time and in moving the process forward. I must also note the groups that also support the bill--the Consumer's Union, the Center for Science in the Public Interest, the Consumer Healthcare Products Association, the National Nutritional Foods Association, the Council for Responsible Nutrition, the American Herbal Products Association, and finally and most importantly, the Utah Natural Products Association. That these groups, not often united--at least on this subject--can rally around our bill today is a testament to good policy, good politics, and a surviving bipartisan spirit. Chairman Enzi has placed this legislation on the HELP Committee agenda for the June 28 executive session. It is my hope the committee will give swift approval to this bipartisan measure and that the Senate will shortly thereafter do the same.

Mr. HATCH

Mr. HATCH. Mr. President, I am proud to rise with my colleague, Senator Durbin, to introduce S. 3546, the Dietary Supplement and Nonprescription Drug Consumer Protection Act. We are joined in this effort by Senators Harkin, Enzi, and Kennedy. As my colleagues are aware, over half our population regularly uses dietary supplements. In fact, one government survey in 2004 indicated that nearly 60 percent of Americans regularly use dietary supplements to maintain or improve their healthy lifestyles. Nearly 12 years ago, Senator Harkin and I joined with then- Representative Bill Richardson to author the Dietary Supplement Health and Education Act, DSHEA, which sets out the framework by which the Food and Drug Administration, FDA, regulates dietary supplements. Since that time, the industry has grown. By some estimates, it is a $20 billion industry today. Critics of the industry see this growth as a negative, as an indication that the industry is ``unregulated.'' I disagree. I think the growth of dietary supplement sales is testimony to a vibrant industry that is producing positive benefits for our economy and our people. This is an industry that is largely comprised of men and women of good will, who want to provide the public with healthy products. Let me hasten to add that we all recognize there are bad actors in the supplement industry, those who break the law and mislead consumers. They should be the subject of swift and sure punishment by the FDA and the Federal Trade Commission. Their products should be removed from the marketplace and the full weight of the law should be brought down on these bad actors. It is no secret that the FDA is a woefully underfunded agency, which will be the first to admit that its oversight of the dietary supplement industry has not been as aggressive as it could be, in part due to a lack of resources. For several years, Senator Harkin and I have worked to rectify that shortcoming, and we are gratified that our Utah colleague, Senator Bennett, chairman of the Agriculture Appropriations Subcommittee, has joined hands with us to infuse some badly needed resources into the FDA. When DSHEA was being debated in the Congress, one of the major points of contention was the belief by some that dietary supplements should be subject to premarket approval by the government. That would sound the death-knell for this industry, an industry that is largely comprised of products which have been sold safely for decades, if not centuries in many cases. In 1994, the Senate agreed not once, but twice, to approve DSHEA by unanimous consent. The House also passed this bill by UC. It was not controversial. Members recognized that supplements are largely safe. But just to make doubly sure there was adequate regulation, we provided the FDA with an arsenal of tools to take action against problematic products. Then comes ephedra. I do not think it is a constructive exercise to rehash the history of ephedra. There were mistakes and problems all around in how this product's safety was evaluated and addressed. But something did stand out: one company had literally hundreds, if not thousands, of reports about products with this product, none of which were revealed to Federal authorities. There is no question in my mind that the too-long safety evaluation of ephedra would have been shortened considerably had we known earlier about these reports. Two years ago, I began discussing with those who are interested in dietary supplement regulation whether it would be wise to implement a system of mandatory adverse event reporting, AER, for those products. While as a general principle, I am usually reluctant to argue for greater government regulation, in this instance it seemed to me a case could be made that an AER system for supplements could complement the work we achieved with DSHEA and improve the government's ability to address the relatively few problems which arose. Senator Durbin and Senator Harkin were also having similar thoughts. We joined forces and after much study, discussion and negotiation, produced S. 3546. It may be surprising to many of our colleagues that Senators Hatch, Durbin, Harkin, Enzi and Kennedy stand together on this legislation--we come from very different perspectives on dietary supplement regulation. And while we are each very passionate about our views, we are united in a common goal: improving the public health. The premise for this bill is simple: mandating a system to provide the government with information about serious adverse events associated with the use of two types of FDA-regulated products--dietary supplements and over-the-counter drugs--provides Federal authorities with a better tool to respond to any problems which might occur. This is an important public health initiative, which at the same time safeguards access to dietary supplements and over-the-counter drugs. There is currently a voluntary reporting system for supplements and some OTC drugs--our bill would replace that with a mandatory system. Senator Harkin and I have a longstanding interest in regulation of these products, stemming back to our work on DSHEA. Senator Durbin, as the former chair of the House Agriculture Appropriations Subcommittee, is one of the most knowledgeable Senators in this body when it comes to FDA matters. Our collaboration on this legislation, along with the distinguished chairman and ranking minority member of the committee of jurisdiction, the Health, Education, Labor and Pensions--HELP--Committee, both of whom were integral to this process, has produced a bill which strikes the right balance between necessary regulation and over-regulation. This is how the new system will work: Manufacturers, packers or distributors of OTC drugs or dietary supplements marketed in the United States must provide to the FDA within 15 business days any reports of a serious adverse event associated with their products. Accompanying that report must be a copy of the label on or within the retail packaging of the supplement. The definition of serious event is proscribed within the legislation. It is either an event that results in a death, life-threatening experience, inpatient hospitalization, persistent or significant disability or incapacity, or congenital anomaly or birth defect; or it is an event that requires based on reasonable medical judgment a medical or surgical intervention to prevent one of the outcomes I have just listed. The bill requires that those reporting must, for 1 year, provide any new medical information related to the serious adverse event report. Again, that information must be submitted within 15 days. In addition, manufacturers, packers and distributors must keep for 6 years records of any adverse event associated with the product, even though there is no reporting requirement unless the event meets the definition of serious. For over-the-counter drugs, the definition of ``adverse event'' is a health-related event associated with the use of a nonprescription drug that is adverse, including: an event occurring from an overdose, whether accidental or intentional; an event occurring from abuse of the drug, or withdrawal from the drug; or any failure of pharmacological action. For dietary supplements, an ``adverse event'' is defined as any health-related event associated with the use of a dietary supplement that is adverse. The reports will be submitted on the current MedWatch form, unless the Secretary of Health and Human Services chooses to modify that form at some point. The bill makes clear that State health officials may have access to the adverse event reports, but that the Federal reporting system would supersede any state reporting laws. As we met to develop this legislation, one thing we struggled with was the need to encourage responsible reporting in a way that manufacturers could implement. Some manufacturers indicated to us, for example, that they were not medical experts and could not determine in every case if a reporter's problem met the definition of ``serious'' contained in the bill. To address this, we allow manufacturers to contract with third parties to handle the collection of reports. The manufacturers, of course, would still be ultimately responsible for reporting. We have also asked the FDA to issue guidance to help manufacturers interpret what a serious adverse event might be. Another concern was making certain we appropriately defined the role of retailers, who are selling a range of products, some supplements, some OTCs, some not. We determined that retailers would not be considered reporting parties. If, however, a retailer contracts with manufacturers to distribute ``private label'' products, he or she may authorize the manufacturer or packer to submit reports, as long as the retailer directs to the manufacturer all reports it receives. We also wanted to allow the FDA the flexibility to manage this program. At its request, we made the program self-implementing. We also included a provision to allow the Secretary, after notice and comment from interested parties, to establish an exemption to the reporting requirements if there would be no adverse effect on public health. Finally, there are provisions in the bill to impose penalties for not reporting, not providing on the product label an address or phone number for reporting, and for providing a false report. The law will go into effect 1 year after the date of enactment. Before I close, I want to address some of the concerns that representatives of the dietary supplement industry have voiced with this legislation. First, some have suggested there is no need for this legislation from a public policy or a consumer safety perspective. I disagree. Many have unfairly criticized the industry over media reports that supplements are unsafe because there is no premarket approval. While I can never support any system that requires premarket approval for supplements, I have become convinced that having a system in place to identify problems quickly can only enhance the authorities we gave the FDA with DSHEA. It is also good policy. As the industry matures, we need to separate out the good actors from the bad. This is one way to show that this industry is a respectable, mainstream industry. Other major industries--e.g. pharmaceuticals, devices--are subject to mandatory AER reporting. Supplements are only handled through the voluntary reporting system. And, I disagree with those who avow there is no consumer safety benefit. Let's take an easy case--where there is a bad batch of a product. Enabling the FDA to know quickly there is a problem can help industry and the public. Other critics note that the FDA fails to pursue egregious violations of DSHEA. They question why this program will help. As I discussed earlier, Senator Harkin and I have been working to increase FDA's funding for responsible enforcement of DSHEA. I recently discussed this with the Commissioner-nominee, Dr. Andrew von Eschenbach. One of my constituents who opposes this effort suggested that the FDA's voluntary system, the CAERS system, should be able to handle any reports of problems. Public health experts will agree that a voluntary system is not as good a sentinel as a mandatory system. In addition, those who report under the voluntary system are more likely to be physicians. Encouraging consumers to report to manufacturers through a phone number or address on the product's label will ensure a more thorough reporting system. Yet another concern I have heard is that this bill has a significant economic impact that has not been studied appropriately. One estimate I have heard is that it could cost tens of millions of dollars a year to industry and consumers. I have to say that these estimates do not seem to be supported by other industry representatives, many of whom are already instituting reporting systems of their own. During the drafting of this bill, we worked very hard to keep requirements to the minimum that would be necessary for a complete and full reporting of serious adverse events. In addition, I have heard a suggestion that a better alternative to this bill would be a 1-800 number that consumers can use to contact FDA directly to report complaints. I discussed this with my colleagues and the FDA and found little support for this idea. What this could do is shift onto FDA the majority of reports about product problems. In other words, FDA fears that consumers would start phoning the agency, rather than the manufacturer, to report complaints for things like broken bottles or tablets, or to answer questions about usage. It is easy to see how this could end up relieving manufacturers of some of their consumer-related responsibilities and shift that onto the FDA. Let me hasten to add that I understand the motivation behind these concerns. I will keep a close watch on this new program as it is implemented, and pledge to reexamine it should problems with implementation arise. In closing, I thank my colleagues for the spirit of collaboration which led to development of this legislation. In particular, I thank Senator Durbin for his leadership on this issue. While we may not have always agreed on every provision, we did forge a bill on which we can agree. Senator Harkin is a steadfast supporter of the dietary supplement industry, and his guidance undoubtedly made this bill a better product. Senator Enzi and Senator Kennedy, both longtime experts in food and drug law, have both been most generous in their time and in moving the process forward. I must also note the groups that also support the bill--the Consumer's Union, the Center for Science in the Public Interest, the Consumer Healthcare Products Association, the National Nutritional Foods Association, the Council for Responsible Nutrition, the American Herbal Products Association, and finally and most importantly, the Utah Natural Products Association. That these groups, not often united--at least on this subject--can rally around our bill today is a testament to good policy, good politics, and a surviving bipartisan spirit. Chairman Enzi has placed this legislation on the HELP Committee agenda for the June 28 executive session. It is my hope the committee will give swift approval to this bipartisan measure and that the Senate will shortly thereafter do the same.

Mr. HATCH

Mr. HATCH. Mr. President, today I rise to introduce the Agriculture Small Business Opportunity and Enhancement Act of 2006. Currently, 28 States, including my home State of Utah, have State meat inspection programs. But, outdated Federal laws prohibit the interstate shipment of certain meats inspected under these programs. My legislation would remove that unfair ban. Let me provide some background on why this legislation is necessary. A 1906 law, the Federal Meat Inspection Act, requires the U.S. Department of Agriculture, USDA, to inspect all cattle, sheep, swine, goats, and horses slaughtered for human consumption. An amendment in 1957, the Poultry Products Inspection Act, added poultry to that list. While the Federal Meat Inspection Act and the 1968 Poultry Products Inspection Act recognized State inspection programs separate from the Federal program, these laws also prohibit certain meats inspected under State programs from being sold in interstate commerce. That ban applies to beef, poultry, pork, lamb, and goat products, but not to specialty meats such as venison, pheasant, quail, rabbit, and numerous others that are typically inspected under State programs. It is important to point out that this ban is unique. State-inspected beef, poultry, pork, lamb, and goat products are the only food commodities that are banned from interstate shipment. Many perishable products, including milk and other dairy items, fruit, vegetables, and fish, which are inspected under State programs, are shipped freely across State lines. There is no legitimate reason for the ban on the interstate shipment of State-inspected meats to continue. The State programs are equal or superior to the Federal program. In fact, the 1967 and 1968 Meat and Poultry Inspection Acts require State inspection programs to be ``at least equal to'' the Federal program. Since 1967, USDA has conducted comprehensive reviews of each individual State inspection program to verify whether or not the program meets the statutory requirement to be ``at least equal to'' the Federal program. In the nearly 30 years that USDA has been conducting these reviews, the agency has never unilaterally found that a State inspection program should be discontinued due to an inability to meet Federal food safety standards. Further, the 2002 farm bill required USDA to conduct an additional comprehensive review of State inspection programs. After a 2-year study, USDA issued an interim report which found that State inspection programs are indeed ``at least equal to'' the Federal inspection program. In addition, three USDA Advisory Committees have recommended that the ban on interstate shipment be lifted. In short, there is no distinction between the Federal and State inspection programs. Without exception, State inspection programs meet or exceed Federal food-safety requirements, and USDA has verified the safety of these programs for decades. In Utah, we have 32 establishments that inspect meat under a State's inspection program. These establishments, like the nearly 2,000 similar plants nationwide, are, for the most part, small businesses. And, generally speaking, these establishments cater to the needs of small, family-run farms and ranches. The outdated ban on interstate shipment of State-inspected meats clearly disrupts the free flow of trade, restricts market access for countless small businesses, and creates an unfair advantage for big businesses. But it gets worse. Current regulations also favor foreign meat producers over small businesses in our Nation. In fact, meat inspected in 34 foreign countries can be shipped anywhere in the U.S. because the USDA has certified that the inspection programs in these foreign countries are equivalent to the Federal program. As I have pointed out, State inspection programs must meet the same Federal equivalency standard. In fact, USDA supervision of State inspection programs is far more frequent and thorough than its oversight of foreign inspection programs. In my view, it is absurd that meat inspected in 34 foreign countries can be shipped anywhere in the United States without restriction, but small businesses in 28 States are prohibited from shipping their products across State lines, even though these small businesses meet the same Federal food safety requirements as their foreign competitors. A ban on interstate shipment of State-inspected meat unfairly hinders our Nation's economy. My legislation would remove the outdated, unnecessary, unjust ban that puts our small businesses at such a disadvantage. Removing this prohibition will increase competition and innovation. It will provide farmers and ranchers with increased opportunities to sell their products at a better price. It will not do anything more than level the playing field and ensure that our small businesses have the opportunity to economically compete in the market. I urge my colleagues to join me in defending America's small businesses by supporting this important legislation.

Mr. HATCH

Mr. HATCH. Mr. President, today I rise to introduce the Agriculture Small Business Opportunity and Enhancement Act of 2006. Currently, 28 States, including my home State of Utah, have State meat inspection programs. But, outdated Federal laws prohibit the interstate shipment of certain meats inspected under these programs. My legislation would remove that unfair ban. Let me provide some background on why this legislation is necessary. A 1906 law, the Federal Meat Inspection Act, requires the U.S. Department of Agriculture, USDA, to inspect all cattle, sheep, swine, goats, and horses slaughtered for human consumption. An amendment in 1957, the Poultry Products Inspection Act, added poultry to that list. While the Federal Meat Inspection Act and the 1968 Poultry Products Inspection Act recognized State inspection programs separate from the Federal program, these laws also prohibit certain meats inspected under State programs from being sold in interstate commerce. That ban applies to beef, poultry, pork, lamb, and goat products, but not to specialty meats such as venison, pheasant, quail, rabbit, and numerous others that are typically inspected under State programs. It is important to point out that this ban is unique. State-inspected beef, poultry, pork, lamb, and goat products are the only food commodities that are banned from interstate shipment. Many perishable products, including milk and other dairy items, fruit, vegetables, and fish, which are inspected under State programs, are shipped freely across State lines. There is no legitimate reason for the ban on the interstate shipment of State-inspected meats to continue. The State programs are equal or superior to the Federal program. In fact, the 1967 and 1968 Meat and Poultry Inspection Acts require State inspection programs to be ``at least equal to'' the Federal program. Since 1967, USDA has conducted comprehensive reviews of each individual State inspection program to verify whether or not the program meets the statutory requirement to be ``at least equal to'' the Federal program. In the nearly 30 years that USDA has been conducting these reviews, the agency has never unilaterally found that a State inspection program should be discontinued due to an inability to meet Federal food safety standards. Further, the 2002 farm bill required USDA to conduct an additional comprehensive review of State inspection programs. After a 2-year study, USDA issued an interim report which found that State inspection programs are indeed ``at least equal to'' the Federal inspection program. In addition, three USDA Advisory Committees have recommended that the ban on interstate shipment be lifted. In short, there is no distinction between the Federal and State inspection programs. Without exception, State inspection programs meet or exceed Federal food-safety requirements, and USDA has verified the safety of these programs for decades. In Utah, we have 32 establishments that inspect meat under a State's inspection program. These establishments, like the nearly 2,000 similar plants nationwide, are, for the most part, small businesses. And, generally speaking, these establishments cater to the needs of small, family-run farms and ranches. The outdated ban on interstate shipment of State-inspected meats clearly disrupts the free flow of trade, restricts market access for countless small businesses, and creates an unfair advantage for big businesses. But it gets worse. Current regulations also favor foreign meat producers over small businesses in our Nation. In fact, meat inspected in 34 foreign countries can be shipped anywhere in the U.S. because the USDA has certified that the inspection programs in these foreign countries are equivalent to the Federal program. As I have pointed out, State inspection programs must meet the same Federal equivalency standard. In fact, USDA supervision of State inspection programs is far more frequent and thorough than its oversight of foreign inspection programs. In my view, it is absurd that meat inspected in 34 foreign countries can be shipped anywhere in the United States without restriction, but small businesses in 28 States are prohibited from shipping their products across State lines, even though these small businesses meet the same Federal food safety requirements as their foreign competitors. A ban on interstate shipment of State-inspected meat unfairly hinders our Nation's economy. My legislation would remove the outdated, unnecessary, unjust ban that puts our small businesses at such a disadvantage. Removing this prohibition will increase competition and innovation. It will provide farmers and ranchers with increased opportunities to sell their products at a better price. It will not do anything more than level the playing field and ensure that our small businesses have the opportunity to economically compete in the market. I urge my colleagues to join me in defending America's small businesses by supporting this important legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to submit today, along with my colleagues Senator Bob Bennett and Senator Richard Burr, the National Professional Medical Coder Day resolution. By passing this resolution, Congress will recognize June 21, 2006, as National Professional Medical Coder Day, which will help to raise awareness about the important work that medical coders perform and their dedication to their profession. There are about 80,000 professional medical coders employed in the United States, and that number is expected to continue to grow due to the increasing number of medical tests, treatments and procedures, and the consequent scrutiny to provide the best quality health care in a market driven economy. Medical coders are a diverse group of women and men dedicated to ``running the numbers'' of health care. They translate the information that a physician documents during a patient visit into numerical codes that are used for both payment and statistical purposes. Medical coders are sentries of our Nation's health. They communicate regularly with physicians and other health care professionals to clarify diagnoses or to obtain additional information in the assignment of alphanumeric codes. They are knowledgeable of medical terminology, anatomy, physiology, and the code sets necessary to serve effectively in their professional role within the health care community. They are team players committed to ethical and sound medical documentation and reimbursement practices. Medical coders work in a variety of health care environments. Nearly 40 percent of all coding jobs are in hospitals. Others work in the offices of physicians, nursing care facilities, outpatient care centers, and home health care services. Insurance firms that offer health plans employ coders to tabulate and analyze health information. Medical coders in public health departments supervise data collection from health care institutions and assist in research. The Department of Defense policy requires accurate and prompt documentation of and coding of medical encounters within the Military Health System to assist Military Treatment Facility operations. The compliance plan for third- party payers of the Department of Health and Human Services, Office of the Inspector General acknowledges the specialized training of medical coders required due to the greater legal exposure related to coding medical services. Coders also stand as the front line against the potential fraud and abuse of the Medicare and Medicaid Programs while assuring that the physicians, hospitals, and clinics receive accurate compensation for the services provided. The abilities coders possess to collect data about diagnoses and procedures figure prominently within my own interests for quality health care. Medical coders also provide us with the data we need for making tough choices in health care. This resolution stems from positive citizen actions. The quest for a national day of recognition began as a grassroots campaign. Over the past 4 years, medical coders from around the country have gathered support through a national petition and State proclamations crediting the work of their coders. The Secretary of the Department of Health and Human Services Michael Leavitt made Utah the very first State to honor coders when, as Governor, he signed on April 15, 2003, a proclamation declaring a day of honor for coders in Utah. Since then, 28 other States have signed similar proclamations. The State of Florida was the most recent addition to their campaign, and medical coders continue their efforts in achieving recognition at the State level. Let us now recognize their efforts as a nation. It is my hope that this resolution will help advance the recognition of professional medical coders; and, therefore, the attention given to their commendable work. It recognizes contributions to the national health care system and it reminds us of medical coders' dedication to the value of hard work in the interest of a national priority--quality health care for everyone. I applaud that contribution and am hopeful that the Senate will pass this resolution marking June 21, 2006, as National Medical Coder Day.

Mr. HATCH

Mr. HATCH. Mr. President, I want to add my voice in tribute and recognition of the continuing service of our distinguished colleague, the senior Senator from West Virginia, Senator Robert C. Byrd. Today he becomes the real dean of the Senate, the longest serving of all the 1,855 men and women who have served in this body. It will not surprise any of my colleagues that others will make more of this remarkable milestone than the Senator from West Virginia himself. For him, Day 17,327 is just another day serving the people of West Virginia and the United States here in the Senate. But for the rest of us, this milestone recognizes not simply the length of Senator Byrd's tenure, but what he has done with that tenure. The Senator from West Virginia brings a sense of history and perspective to the politics of the moment. He is as determined as anyone here to achieve his political goals, but his emphasis on the institution's history and prerogatives helps us place the immediate in a larger context. In that sense, he is not just a Senator, not just a colleague, but he is a teacher for the many Senators who have walked on this floor for the first time since he came here so long ago. The Senator from West Virginia is truly an original. I ask my colleagues: do you know anyone else who feels equally comfortable, giving a discourse on the Roman Senate and appearing on the television show ``Hee Haw''? Many Senators, for example, receive academic degrees during their service in this body. Most, however, are honorary degrees. The Senator from West Virginia received a law degree from American University in 1963, but he earned it after taking night classes for a decade. Senators have written books during their service in this body. The Senator from West Virginia, however, has written books about this body. He is widely known as the author of a four-volume work on the history of the U.S. Senate, published in 1987 for the Senate's bicentennial. Those are not simply history books. The project began as a series of speeches about this institution and its history, delivered right here on this Senate floor. A book about Senate history arising while participating in that history. They say a picture is worth a thousand words. Inside the front cover of volume two of his work on the Senate is a photograph of the Senator from West Virginia and his wife, whom he has so often simply called ``my dear Erma,'' standing on a staircase in the Senate. We all mourned Erma Byrd's passing just a few months ago and today would have been her birthday. That photograph was on the occasion of their 50th anniversary in 1987. I do not doubt that in his left breast pocket was that familiar copy of the U.S. Constitution which, I might add, was celebrating its own bicentennial that same year. How fitting that one photograph would capture these loves of his life, the institutions to which he was so committed: his marriage, the Constitution, and the Senate. So much more could be said, but I just want to pay tribute and honor to my colleague of nearly 30 years, a man of character and integrity, a caring man passionately devoted to his faith, his family, and his country, a good man, a great Senator.

Mr. HATCH

Mr. HATCH. Madam President, I want to take a few moments to discuss the estate tax and explain why I support its permanent repeal. I am well aware that many see the move to eliminate the estate tax as little more than a gift to the rich. In my home State of Utah, for instance, the Salt Lake Tribune characterized the elimination of the estate tax as nothing more than ``subsidizing spoiled heiresses at the expense of everyone else.'' I believe that while this is a commonly held view of the estate tax, it is an unfair and inaccurate pejorative of a principled policy position. A punitive tax on inherited wealth is in no one's best interest, least of all the people with no inherited wealth. The Tax Code should collect revenue in a way that does the least harm to economic growth, and this goal should take precedence over any desire to punish the Paris Hiltons of the world. Without a doubt, the high estate tax rate harms economic growth. Perhaps our tax system's biggest flaw is that it taxes the returns to investment, usually more than once. When our employer pays us a dollar, both the Federal and State governments gets their share. When we save what is left over by investing it in stocks or bonds, the government takes another bite at the apple by getting a share of the profits of the company in which we invested. And when the stock or bond delivers an investment return to us, we get to pay the tax man yet again. The estate tax is often yet another layer of taxation on the investment. How many times does the government need a cut of our money? At what point do we stand up and say: Don't tax more; spend less? Because of the estate tax, people save less than they otherwise would and as a result businesses have less capital available to use to grow, expand, and create jobs. With less investment, workers are less productive and wages are lower than would otherwise be the case. The Bush administration's signature economic achievement, in my view, has been to lower the tax on dividends and capital gains, a change that deserves much of the credit for the strong productivity growth of the past three years. This policy change greatly increased investment and the concomitant growth in output has a lot to do with the simply incredible growth in tax revenue we have seen in the past 2 years. It now appears that we will collect 30 percent more tax revenue this year than we did just 2 years ago, according to the Congressional Budget Office. This is really incredible. Especially when you consider that the economy was headed for a free fall just 5 years ago. Our efforts to cut taxes have saved our economy over the last 5 years. A sensible tax system should tax income just once and at a low rate. The inheritance tax does neither. The current 46-percent estate tax rate borders on being confiscatory. Chris Edwards of the Cato Institute reports that out of the 50 largest economies in the world, we have the third highest estate tax rate. Len Burman of the Urban Institute recently wrote that it is time for both sides of the aisle to agree that the U.S. Tax Code should be designed solely to collect money in the most efficient way possible, so that it does the least damage to economic growth. From that beginning we can then move to address distributional issues outside of the scope of the Tax Code. I believe this makes a lot of sense. Strong economic growth is in everyone's best interest, and we have not done a good job communicating that fact to the American people. Too often economic growth is viewed as a barrier to a cleaner environment, or stronger families, or less poverty, when in fact nothing could be further from the truth. Nearly everyone in society benefits from a more productive economy, especially those on the lower rung of the economic ladder. The way to help the people at the bottom of the ladder is not to pull down those at the top of the ladder, but to help those at the bottom to get the education and training they need to obtain and keep good jobs. The estate tax as it currently stands represents a barrier to economic growth, and it behooves us to remedy this situation as quickly as we can by making its repeal permanent.

Mr. HATCH

Mr. HATCH. Mr. President, today I rise to give my complete support for Ambassador Susan Schwab who will become our Nation's Trade Representative. I have been dismayed that the Senate did not move more quickly on this nomination. I have also been disappointed by the opinions, of some, who state that her nomination is an indication that the administration is deemphasizing trade policy. Obviously, these individuals do not know Ambassador Schwab. I, on the other hand, have had that privilege of working with her and join the vast majority of my colleagues in stating that that Ambassador Schwab is a tenacious, forceful, yet thoughtful advocate of our Nation's trade agenda. Our Nation is at a critical juncture. In 2005, the United States trade deficit widened to a record $726 billion, increasing to 5.8 percent of the Gross Domestic Product from 5.3 percent in 2004, and 4.5 percent in 2003. Many economists now describe the trade deficit as unsustainable. For example, C. Fred Bergsten, Director of the Institute for International Economics, has pointed out ``the United States must now attract almost $7 billion of capital from the rest of the world every day to finance our current account deficit and our own foreign investment outflows.'' In order to meet these challenges, we need our best and brightest working on solutions. Solutions that ensure that that the Doha Round lives up to its potential, while ensuring that a level playing field is created for American farmers, manufactures and service providers. Solutions that enable the United States to move expeditiously in our free trade negotiations with Korea and Malaysia thereby providing unfettered access to these markets. Mr. President, I cannot think of anyone better suited to find these solutions then Ambassador Susan Schwab. I am very pleased that the Senate confirmed her nomination just minutes ago. Mr. President, I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, when I first ran for office to represent my folks out in Utah, I announced my candidacy because of my deep love for my country and my State. My appreciation for both has only deepened over the years. Perhaps the most remarkable characteristic of this country--one that, in my opinion, is distinctly American--is our tolerance, our willingness to accommodate the very beliefs of our fellow citizens. After all, our country's motto is E Pluribus Unum--out of many, one. But we accept these differences because we share so much else. We sometimes forget it around here, but we agree more than we disagree, or at least that is what I hope for. We all believe in the dignity of the human person. We all believe that men and women were endowed by their Creator with certain inalienable rights, and the Government exists to secure those rights. For us, and for our constituents, this is common sense. The same is not true in many other countries, where these basic ideas are debated by all and rejected by some. We should remember this heritage of respect when we debate the marriage protection amendment. There are strong feelings on both sides of this issue. I support this amendment. Marriage and family life are the bedrock of American society--the schoolhouse of American citizenship--and judges should not be altering this fundamental institution. I understand that some of my colleagues believe we should be debating something that they see as of greater consequence. But for many in this body, and for millions of people throughout the country, including in Utah, no issue is more important. During this debate, we should treat each other fairly, with respect, and with an openness to the good-faith arguments on both sides of this amendment. There is precedent for this. A few weeks ago, the Senate passed an immigration bill. I voted against it, but I agreed with the sentiments of my colleagues who concluded, after the die was cast, that the Senate had behaved admirably. Tensions ran high, but we had a respectful and serious debate about the issues. We voted amendments up and down. I am not saying I saw any Websters, Clays, or Calhouns on the floor, but our respect for one another's opinions and well-intentioned debate certainly did them proud. This is not to say that I was happy with the final product. Even as a purported compromise, it left so much to be desired that I was compelled to vote against it. Yet, I was encouraged by the process and the respect that we showed for the deeply held opinions of fellow Senators. Unfortunately, the debate over the marriage amendment seems to be unfolding quite differently. You would not know it from the arguments of the opponents, and you would not know it from the lack of treatment it has received in some news outlets; but this is an important issue to Americans. This might not be a major issue for those who live inside the beltway, but for my neighbors in Salt Lake City, my constituents throughout Utah, and good, decent Americans across the country, this is a critical issue. This debate is not some sideshow for a small sliver of activist groups. Majorities of Americans across the Nation support the protection of traditional marriage laws. This support is not limited to red or blue American. States in every region of the country have worked in recent years to reaffirm the traditional definition of marriage. Forty-five States have either a State constitutional amendment or a statute that preserves traditional marriage laws. Nineteen States have codified the definition of marriage in their State constitutions. In 2004, 13 States, including Utah, overwhelmingly passed their own constitutional amendments to preserve traditional marriage. I was proud to join the majority of my fellow citizens in supporting the adoption of Utah's measure to protect traditional marriage. Seven more States will vote on their amendments this year. Yet, for those opposed to this amendment, these constituent concerns are not worth our time. I disagree. Yesterday the distinguished Democratic leader came to the floor--a dear friend of mine--with a laundry list of issues that we could be addressing instead of this amendment. Along with the Democratic whip, he did so again today. Ultimately, I think we are capable of chewing gum and walking at the same time. In 2 days, we will be taking up floor time to debate a bill to create a race-based government for the State of Hawaii. I will not hold my breath waiting for these same folks to argue then that we should be discussing more pressing issues. I wish those dismissing the importance of this issue would let us look at their phone logs. I know that in my office our phones have been ringing off the hook. Utah is a pretty conservative State, but I don't doubt that other members from across the country are hearing the same thing. The constituents who support this amendment, and others like it in the States, understand something that the sophisticated proponents of same-sex marriage do not--our marriage laws permeate our entire culture and we need to be wary about letting the judiciary foist some untested and, frankly, unwanted social experiment on an entire Nation. Unless we allow an the American people to decide this issue themselves through the amendment process, it is only a matter of time before some renegade judges take it upon themselves to decide it for the American people. Yet, some in this body apparently prefer to put their heads in the sand. They know that this is an important issue. But they are tied in knots. A few weeks ago, Howard Dean, the Chairman of Democratic National Committee was for traditional marriage before he was against it. One day the Democratic Party was for traditional marriage. The next day, efforts to protect traditional marriage were tantamount to discrimination. The bottom line is that some liberal interest groups are attempting a redefinition of marriage, and they are out there all alone on this issue. Vast majorities of Americans support traditional marriage. But some of my colleagues on the other side of the aisle are so dependent on these activist groups for support that they sometimes feel they cannot go against them. I think this is why we are having a cloture vote, rather than an up- or-down vote on this amendment. At the end of the day, many of the same people who deny the necessity of this amendment do not want to have a vote it on their record. So, rather than take on the other side's arguments, they avoid the issues and challenge the motives of those who support this amendment. My friends on the other side of the aisle claim that this amendment is discriminatory. My colleague from Massachusetts, Senator Kennedy, is a good man. But he is out of line to say as he has that a vote for this amendment is a vote for bigotry pure and simple. Over half of his colleagues will vote for cloture on this amendment. Does he really want to suggest that over half of the United States Senate is a crew of bigots? This is Dr. Dean's subtle diagnosis. Democrats are committed to fighting this hateful, divisive amendment and to fighting similarly discriminatory ballot initiatives in states across the country. We strongly oppose any attempt to write discrimination into law--whether it be at the local or state levels or in the United States Constitution. Never--not once in any State--have the people's popularly elected representatives decided to amend traditional marriage laws to include same-sex couples. When given the chance, they affirm traditional marriage. In Vermont, in California, and in Washington there is statutory language preserving the traditional definition. Are the legislators and citizens who supported these laws engaged in discrimination? Let me give you another example. When Nevada considered a State constitutional amendment to preserve traditional marriage, a vast majority of the State's citizens supported the measure. For Nevadans, preserving traditional marriage was not a wedge issue. Divisive issues do not gamer 70 percent of the vote, as it did in 2000. And so it was no surprise that the State's foremost public servant wholeheartedly supported this effort. Nevadans wanted to amend the State's constitution merely to affirm what has always been the law in Nevada and in the other States--that marriage is between one man and one woman. That was then. This is now. Today, the Democratic Leader, who I count as a friend, has jumped on this bandwagon and said that this amendment would write discrimination into the Constitution. So he supports unequivocally a State constitutional amendment to protect traditional marriage, but he claims that it is discrimination at the national level. Let me get this straight. Since the colonies were first settled, traditional marriage has been the norm in this country. It remains so today with the exception of Massachusetts. In recent years the American people have reasserted in State after State their strong desire to maintain traditional marriage laws. So the beliefs of most Americans are discriminatory? Was it discrimination when members supported their State constitutional amendments to protect traditional marriage? Was it discrimination when 85 members of this body, including 32 Democrats, voted for DOMA, the Defense of Marriage Act? Was it discrimination when President Bill Clinton signed it? Is it discrimination for our religious leaders to support traditional marriage? The Catholic Church opposes same-sex marriage. Does the Pope believe in discrimination? Seventeen Catholic Bishops and all eight American Cardinals support this amendment. Do they support discrimination? That is what some of my colleagues are suggesting. Is every parish priest who refuses to marry a same-sex couple engaged in discrimination? My church supports traditional marriage. So do many other religions that recognize the importance of marriage between a man and a woman. I do not think that some of my colleagues opposing this amendment have considered the full ramifications of a Federal court decision commanding same-sex marriage on the States. What happens to the tax status of a church that our courts have determined to be engaged in discriminatory conduct that cuts against the public policy of the State? We have seen a preview with the experience of Catholic Charities in Massachusetts. For decades, this noble organization has provided adoption services for hard-to-place children. Yet the State recently presented this organization with the catch-22 of abandoning the church's traditional teaching on human sexuality or abandoning their religious commitment to works of mercy. This is not a choice our churches and religious citizens should face, but it is, I fear, a choice that they will have to make unless we act. Our history as a nation is dotted with instances of some outlier, activist judges who ignored their institutional limitations in order to replace their own public policy judgments for those of the American people and their representatives. It is hardly a surprise that some elite judges might underestimate the political and social consequences of their efforts to alter the legal framework of marriage. After all, most of the people that they know may be in favor of such changes. Well, they are about to find out that there are people outside of their small universe of liberal opinion. If a few renegade judges determine that traditional marriage is unconstitutional, our previous political debates over improper judicial decisions will pale by comparison. The fact remains that some judges are eager to replace the opinions of the American people with their own. Since the cloture vote on the marriage amendment in the 108th Congress, State trial courts in Washington, New York, California, and Maryland have struck down traditional marriage laws. The marriage laws of Connecticut have been challenged. The laws in Iowa have been challenged. A lawsuit has been filed in Federal court in Oklahoma that challenges not only a State constitutional amendment to preserve traditional marriage, but also the Federal Defense of Marriage Act. The Supreme Court of New Jersey seems poised to overturn the State's traditional marriage laws. A Federal court in Nebraska already struck down the State's constitutional amendment to protect traditional marriage. Just a few weeks ago, a judge in Georgia invalidated an amendment passed by the State's voters in 2004. Those who oppose traditional marriage are not playing by the rules. They are not convincing their fellow citizens of the merits of their cause. They are not taking their arguments to the legislatures. Rather, they are taking the easy way out. Just convince a few elite judges that they are on the side of justice, and traditional marriage laws will go the way of the dinosaurs. According to this amendment's opponents, when well-funded liberal activist groups ask judges to subvert the will of the people in every State, they are not playing politics. When they ask a bare majority of judges to overturn traditional marriage laws and declare them discriminatory, they are merely seeking justice. Yet when the people's elected representatives attempt to preserve traditional marriage in this country, we are playing politics. We must be respectful of homosexual citizens. They are our fellow citizens. And they, no less than we, are endowed with the rights that Thomas Jefferson elaborated in the Declaration of Independence. But we also live in a democracy. And in democracies the people get to determine social policy, not judges. We should take this opportunity to restore the authority of the people over public policy and their own constitutions. We should remind these judges that the judiciary does not have a method of reasoning superior to the people or their elected representatives. Judges are good at deciding cases. They are good at applying law. But when it comes to moral reasoning, there is nothing in their legal training or in our laws that gives a few activist judges a right to make wholesale social change at the expense of the traditions of the American people. I support this amendment. It is merely a congressional affirmation of what the vast majority of citizens in Utah and across the country already believe--marriage should be between one man and one woman. We have a long way to go, but as even this amendment's opponents know, the fact that legislation will not pass is no reason to avoid a debate. Only by debating can you build a consensus. The American people have already arrived at a consensus on this issue. They want to see traditional marriage remain the law of the land. I agree with that sentiment, and so I will be voting for cloture. I urge my colleagues to do the same. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, the country, the judiciary, and the Senate have lost a patriot, a great man of character and integrity, a gifted judge, and a trusted friend with the passing last week of U.S. Circuit Judge Edward Becker. Edward Roy Becker was born on May 4, 1933, in his beloved Philadelphia. He practiced law there for more than a decade, until President Richard Nixon appointed him to the U.S. District Court for the Eastern District of Pennsylvania in 1970. President Ronald Reagan elevated Judge Becker to the U.S. Court of Appeals for the Third Circuit in 1981. The Third Circuit considers appeals from Federal district courts in Delaware, New Jersey, Pennsylvania, and the Virgin Islands. Judge Becker eventually served as the Third Circuit's chief judge for 5 years before taking senior status on his 70th birthday in 2003. Edward Becker lived for nearly all of his 73 years in his boyhood home in the Frankford section of Philadelphia. He read legal briefs while riding the train to the courthouse, where he was known for what the New York Times described as a lack of grandiosity rarely found in a Federal court. With an uncanny ability to play virtually any song by ear on the piano, Judge Becker accompanied Supreme Court Justices at their annual sing-a-longs that the late Chief Justice William Rehnquist hosted for the law clerks. When part of Independence National Historic Park, which he could see from his chambers window, was closed after the September 11 terrorist attacks, Judge Becker supported the efforts of a citizens' coalition which succeeded in getting the street reopened in 2003. Judge Becker was not just any Federal judge. After more than 35 years on the bench, he was certainly a senior member of the Federal judiciary. But he served not only the cause of justice but also the institution of the judiciary in such capacities as the board of directors of the Federal Judicial Center and the executive committee of the Judicial Conference of the United States. His many and varied writings covered topics ranging from the federal sentencing guidelines and rules of evidence to the sixth amendment's confrontation clause and even law journal footnotes. Imagine that, an entire law journal article about law journal footnotes. Judge Becker made his judicial mark in many ways. Judges write opinions that follow or apply principles established by the Supreme Court. Judge Becker did that as well but also wrote landmark opinions establishing rules or principles that would later be adopted by the Supreme Court. His 1985 opinion in United States v. Downing, for example, adopted a standard regarding expert witness testimony. The Supreme Court cited Judge Becker's opinion in Downing when it adopted the same standard 8 years later in its famous Daubert v. Merrill Dow Pharmaceuticals decision. Judge Becker was also known for his knowledge and expertise in handling complex litigation. He served on the board of editors for the ``Manual for Complex Litigation'' and handled many such cases during his years on the bench. In 1996, for example, he wrote the opinion in Georgine v. Amchem Products concluding that the factual and legal issues in a lawsuit against asbestos manufacturers were too complex to allow certification of the suit as a class action. Judge Becker's expertise in the area of complex litigation in general, and asbestos cases in particular, led to his role in our ongoing struggle here in the Senate with the asbestos crisis. He provided invaluable counsel and assistance to the Judiciary Committee, and his enormous wisdom, credibility, and integrity helped guide many complex discussions and negotiations. Every party to those discussions knew that Judge Becker was a straight shooter, a completely honest broker. Judge Becker could have considered his a strictly judicial role, limited to handling the cases that came before him, but Judge Becker looked past the walls of his courtroom at the judiciary as an institution, the justice system, and the country. He wanted to see the grand principles of justice and fairness actually work in people's lives. Judge Becker was not afraid to wade into other choppy waters in the interest of the judicial branch. Joined by several leading appeals court judges including now- Associate Justice Stephen Breyer, Judge Becker sought in 1989 to make some sense out of what had become an almost absurd process for hiring judicial law clerks. Judges were interviewing students barely finished with their first year of law school. Judge Becker believed that the trend disrupted the studies of law students and demeaned the judiciary's reputation. This was classic Judge Becker. He did not have to tackle such a touchy subject. Previous efforts to change the law clerk hiring system had failed, and the problem was worse than ever. But he cared so much for the integrity of the judiciary, and for the individuals who served in it, that he tackled it nonetheless. And he did it with the straightforward, no-nonsense, commonsense practicality that characterized everything he did. Judge Becker both loved and was beloved by his colleagues. He organized a panel of current and former Third Circuit judges to testify on behalf of their colleague Judge Samuel Alito upon his recent nomination to the Supreme Court. That panel was diverse, opinionated, and completely united in support of their colleague. Judge Becker and Flora, his wife of nearly 50 years, kept in close touch even with retired colleagues and with colleagues' spouses after they died. In addition to Flora, Judge Becker is survived by his children--Jon, a teacher in Brooklyn; Susan, a Federal prosecutor in Philadelphia--and Charles, a lawyer in Philadelphia--and several grandchildren. Our colleague, the senior Senator from Pennsylvania, was a close friend of Judge Becker for more than 50 years. He has said that Judge Becker was one of the greatest Philadephians in that great city's history. That is high praise indeed, considering the pantheon of patriots coming from the birthplace of the Constitution. Judge Becker embodied so much that is great about this country. He cared deeply about principles of fairness and justice. He wanted those principles actually to work. He was both part of a collegial judicial body and a unique individual with his own personality and character. He would go to baseball games but take legal briefs with him to read. His colleague, Judge Marjorie Rendell, once described Judge Becker as ``the perfect combination of Mensa and mensch.'' One of the historic preservationists who worked with Judge Becker to reopen the street in front of Independence Hall said of Judge Becker: ``He was one step below the Supreme Court, but he's such an everyday man.'' Proverbs 16:19 offers a maxim that fits Judge Becker to a tee: ``Better it is to be of a humble spirit with the lowly, than to divide the spoil with the proud.'' By his character, personality, and wisdom, Edward Roy Becker made anyone who knew him better for the experience. The judiciary, the country, and yes, the Senate, are better because this good man walked and worked with us.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to express my sadness in learning of the passing of our esteemed former colleague from Texas, Senator Lloyd Millard Bentsen, Jr. I am certain that I join all of our colleagues in grieving the loss of this great American, and especially those of us who had the honor to have served in this body with him. Lloyd Bentsen was a good and a great man, and I had the opportunity to work with him closely many times over the 16 years we served here together. When I joined the Finance Committee in 1991, Senator Bentsen was the chairman. As a new member of the committee, I appreciated the way Chairman Bentsen ran Finance in a bipartisan and fair way that reflected positively on the long and distinguished history of that panel and the spirit of which continues until today. Many of us knew Senator Bentsen as a man of his word, and as a superb communicator. He was not a man of many words, but when he spoke, people everywhere stopped to listen. He spoke slowly and with great meaning, and he connected with those who heard him, whether they were a group of schoolchildren from Texas, his colleagues from his long years of service in the House and the Senate, the financial markets that listened to his every word as chairman of the Finance Committee and as Secretary of the Treasury, or the world's financial leaders, with whom he consorted as the President's main economic spokesman. Lloyd Bentsen was a hero, to his family, his constituents, his State, and to his country. As a young man, he served as a combat pilot in the European theater during World War II, and he flew 35 missions in B-24s. Lloyd was awarded the Air Medal with three Oak Leaf Clusters and the Distinguished Flying Cross. By the time he left military service, was promoted to a full colonel in the Air Force Reserve. Lloyd Bentsen's natural leadership ability was evident early in life. As a young man he earned the rank of Eagle Scout, and he graduated from the University of Texas Law School by the time he was 21 years old. He then joined the Army Air Corps and rose from a private to the rank of major and was given command of a squadron of 600 men at the age of 23. Our friend and colleague was truly a remarkable man. After serving our country so valiantly during the war, Lloyd returned to his native Rio Grand Valley in Texas where he became a county judge and then ran successfully for the House, where he served for three terms. In 1955, he decided to leave public service temporarily and began an impressive career in business and finance in Houston, which ended in 1970 when he decided to run for the Senate. Mr. President, Lloyd Bentsen was one of the modern giants of the Senate. Of course, I did not always agree with him, or him me. However, I respected him. He was respected on both sides of the aisle, and by all who came to know him. Many words come to my mind when I think of Senator Bentsen. He was bright. He was fair. He was serious. He was dedicated. He was dignified. The State of Texas and all America have lost a great son. My heart goes out to Lloyd's wife, Beryl, and to their children, grandchildren and other family members. May they find peace and joy in their memories and in knowing of the great contribution Lloyd gave to his country.

Mr. HATCH

Mr. HATCH. Mr. President, today I rise to pay tribute to Leonidas Ralph Mecham, who recently retired after more than 20 years as Director of the Administrative Office of the U.S. Courts. As that agency's longest-serving Director, Ralph ably guided the judiciary through some turbulent and challenging times, and for such he deserves the praise and commendation of this body. Ralph Mecham was born on April 23, 1928, in Murray, UT. He earned a bachelor's degree with highest honors from the University of Utah, a law degree from George Washington University, and a master's degree in public administration from Harvard University. Ralph's first stint here in Washington began more than 50 years ago, when he served as a legislative assistant and administrative assistant to Senator Wallace Bennett of Utah, the father of our colleague Senator Bob Bennett. Ralph returned to our State to serve as vice president of his alma mater, the University of Utah, where he also taught constitutional law and was responsible for creating the University of Utah Research Park. Ralph could not stay away from Washington and returned to serve as Special Assistant to the Secretary of Commerce. In July 1985, Chief Justice Warren Burger appointed him Director of the Administrative Office of the U.S. Courts. The Administrative Office provides internal administrative support to the judicial branch and communicates on behalf of the judiciary with Congress, the executive branch, and the public. Ralph served in this capacity during a particularly challenging time for the judiciary. Providing effective judicial administration in the face of budgetary constraints is difficult when the Federal judiciary's caseload continues its upward spiral. Cases filed in the U.S. Court of Appeals, for example, more than doubled during Ralph's time as Director. The number of bankruptcy cases skyrocketed from 365,000 to over 1,780,000 in that same period. In addition, national tragedies such as the terrorist attacks of September 11, as well as catastrophes such as Hurricane Katrina, created their own unique challenges to the continued functioning of the judiciary. Ralph met each challenge effectively. His extensive background in public administration and experience in both the legislative and executive branches served him well in equipping the judicial branch for its critical tasks even through these challenges and troubled times. Ralph also helped guide the judicial branch through a period of increased public attention and even criticism regarding judicial decisions. Protecting judicial independence while also enhancing public understanding of the function of judges in our system of government is just the kind of balancing act Ralph was prepared to tackle. He did so effectively with a steady hand. The Director of the Administrative Office serves as secretary of the Judicial Conference and as a member of its executive committee. The judges who chaired the executive committee during Ralph's tenure also have praised his work. The current executive committee chairman, U.S. District Judge Thomas F. Hogan, says that ``[w]atching Ralph operate is like watching a master conductor guide the philharmonic orchestra through a complicated Bach symphony.'' If only this could be said of us Senators and our work on our committees or on this floor. Judge Carolyn Dineen King, Chief Judge of the Fifth Circuit, chaired the executive committee from 2002 to 2005. In tackling a wide range of problems, she says, ``Director Mecham exhibited his usual inventiveness, intensity, tenacity, and judgment and his remarkable ability to inspire others . . . to do the very best they were capable of.'' Judge Wilfred Feinberg of the U.S. Court of Appeals for the Second Circuit chaired the executive committee from 1987 to 1989. He has said that ``Ralph handled this difficult job with confidence, competence and dedication. It is a testament to his hard work and dedication that today the federal courts to a large extent so successfully manage their own resources and operations.'' Judge Ralph K. Winter, also a former Chief Judge of the Second Circuit, chaired the executive committee a decade later, from 1999 to 2000. He believed that Ralph showed ``a remarkable capacity for keeping the long view in mind while putting out the short-term fires that would relentlessly pop up in various directions.'' Perhaps the best applause for Ralph Mecham's leadership comes from Sixth Circuit Judge Gilbert Merritt, who chaired the executive committee from 1994 to 1996. ``The judiciary is in much better shape administratively than it was 20 years ago.'' Whether in our families, our communities, or our work, we should each strive to leave those in our charge better off than we found them. I was pleased to hear that Ralph recently received the 2006 National Public Service Award in recognition of his excellence in a half-century of public service. The award announcement noted his support for the Judicial Conference by providing high-quality services to judges and the courts, and by building relationships both inside and outside the judiciary. Ralph Mecham has been married to the former Barbara Folsom for more than 55 years. With 5 children and 14 grandchildren, he is a devoted family man. Ralph has served in various positions in church and community, including time as a missionary in Great Britain, chairman of the Utah State Heart Association, chairman of the Salt Lake County Cancer Association, and chairman of the University of Utah National Advisory Council. His commitment to the community and to his church continues. The judicial branch and the country are better because of Ralph's service. I want to commend him for his commitment and for setting a good example of public service. His record tells me that, even in supposed retirement, Ralph Mecham will continue helping and serving those around him.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to applaud the conferees for successfully concluding the negotiations and giving us a tax reconciliation bill that I believe fixes glaring problems that would otherwise punish millions of American families. The provisions in the conference report before us today will also help to perpetuate the strong growth our economy has experienced over the last 3 years that has created millions of jobs for Americans. I want to exhort my colleagues to give their support to the conferees' efforts and vote for the passage of this conference report. One major problem the conference report addresses is the fact that the alternative minimum tax is due to hit tens of millions of American households this year had it not been temporarily fixed. The ``fix'' provided in the bill before us is by necessity only a 1 year ``Band- Aid,'' so our tax writers will have to address this issue once again next year. Without this provision over 18 million households would unexpectedly find themselves bereft of deductions and facing a higher tax bill. The alternative minimum tax is Exhibit A for the law of unintended consequences in the tax world. Originally created as a response to news reports that a few millionaires were using available deductions to not pay any taxes at all, this provision, which is essentially a parallel tax system to our ``normal'' tax system, is on pace to snare tens of millions of households in just a few years unless repealed or reformed permanently. It is only the projection of major revenues from this tax that keeps us from discarding it completely. The alternative minimum tax is an especially pernicious tax for Utahns, as it unduly burdens large families by disallowing the exemptions for dependent children. A family of six earning $90,000 a year pays enough taxes as it is without us taking away their exemptions. While the fix of the alternative minimum tax is welcome, I believe the most important provision in the reconciliation bill is the extension of the lower tax rate on dividends and capital gains to 2010. This provision has proven to be a boon for economic growth since it was added to the code in 2003. The revenue cost of this lower rate has been very slight we collected more tax revenue from dividends and capital gains last year than we did in 2002, the year before we reduced the tax rate. In fact, total Federal revenue growth has been simply tremendous the past 2 years as the economy has taken off. Revenue grew more than 14.5 percent last year and is growing at more than 11 percent this fiscal year, well above the predictions made by CBO. The benefits of the lower tax rates on dividends and capital gains has been higher economic growth. The way it works is simple: a lower tax on investment income means that investors get a higher return from their investments, thus spurring them to save more. Greater savings means that firms find there is more money available for them to use to increase production and improve the productivity of their workers, both of which ultimately lead to an increase in economic growth. Moreover, the money invested is used more effectively with a lower tax on capital gains. Capital is not locked up in long-term investments held in order to avoid paying the tax. As a result, capital flows to the most productive investments, and economic growth is maximized. A vibrant, dynamic economy benefits from flexibility, both in the labor market and the capital market. Our 4.7 percent unemployment rate and 2 million jobs created in the past year, on top of a total of 5.2 million new jobs created since August of 2003, testify to the strength of our labor market. The $52 trillion of net wealth in this country, which increased by 8 percent last year, is a manifestation of the strength of our capital market. The Dow Jones Industrial Average is also nearing its all-time high, in no small part due to the tax policies of this country. The benefits of economic growth are in ample abundance in Utah, where the current unemployment rate is just 3.4 percent, while wages increased last year by nearly 4 percent. I am also pleased to see the extension of the small business expensing provision, which has been very important to business investment in this country. Another important provision included in the conference report is the 2-year extension of the active financing exemption under subpart F, which allows many of our U.S.-based multinational firms to remain competitive with their foreign counterparts. We need to remember that taxes are only a means to an end. Ultimately, a primary goal of the government needs to be to ensure the continued prosperity of its citizens, and our Tax Code should be constructed with that purpose in mind. Our Tax Code is by no means perfect; and I could litter this discussion with references to the hundreds of exceptions, exemptions, credits, ill-advised deductions, dubious penalties, and needless complexities that should not be in there. But fixing the myriad imperfections of the tax code is a task for a later Congress and was not the assignment of the conference committee. What they did accomplish was figure out a way for us to keep a provision that has been a boon to our economy for another 2 years. I fervently hope that by the time this provision is next due to expire, or even before then, that my colleagues can see how important it is to have a Tax Code that encourages saving and investment. A lower tax rate on dividends and capital gains is a modest step towards that goal, and one that has cost us little or no revenue in return. At a time of growing prosperity, it is important to continue with the policies that have contributed to that prosperity, and that is exactly what this bill has done. I urge my colleagues to support its passage.

Mr. HATCH

Mr. HATCH. Mr. President, I thank my distinguished chairman who I think has done a terrific job on this bill. I understand the distinguished Senator from New Hampshire needs about 3 minutes, so I ask unanimous consent that he be given 3 minutes, and then the time be returned to me.

Mr. HATCH. Mr. President, I rise in support of S. 1955, the Health Insurance Marketplace Modernization and Affordability Act. This is a good bill, with good intentions. The lack of health insurance, particularly for employees of small businesses, is a significant problem in Utah and throughout the Nation. We cannot afford to sit by the sidelines and bemoan this problem, taking little action while millions of American families suffer. The House of Representatives has acted and we should do the same. Immediately upon its passage though, we were besieged by complaints about House legislation, principal among them the complaint that it overrides State insurance law. I give the Health, Education, Labor and Pensions Committee Chairman Mike Enzi a lot of credit. Chairman Enzi didn't sit idly by. He studied the House bill, he held extensive hearings, and then he drafted a compromise that resolved many of the concerns expressed about the House bill. This was no easy job. Immediately, the HELP Committee effort--a solid effort I might add-- was besieged by criticism. Much of this criticism I must hasten to add, is not valid. ``It isn't going to cover cancer care,'' the naysayers decry. ``It isn't going to cover diabetics and their supplies,'' they allege. ``It isn't going to cover prenatal care or OB/GYN care for women,'' is a recent complaint. ``It is going to run chiropractors, podiatrists and optometrists out of business,'' say hundreds of form letters that have flooded our offices. The problem is, these complaints aren't even true. While the standard plan employees must be offered under this bill may not cover all those things, S. 1955 clearly provides an alternative. Employees must be offered an enhanced plan, based on the coverage that public employees receive in the five most populous States, if their employer's standard plan is not consistent with State law. Most, if not all, of these services would be included in those enhanced plans that employers must offer under S. 1955. But, let's talk about our basic goal here. We want to provide affordable health insurance coverage to those who currently do not have coverage. If we could afford to give them coverage for every possible illness, condition, or procedure, if small businesses could afford to give them coverage for every possible illness, condition or procedure, don't you think it would have been done by now? Of course it would. That is the genius of the Enzi bill. It allows a basic level of coverage--perhaps not every single service imaginable, but good solid health care insurance--and for those who want to pay more, there is a plan with more coverage. In that way, the millions of Americans without health insurance will have access to coverage. You may ask yourself, ``Who doesn't have health insurance coverage?'' Today, over 45 million Americans do not have health insurance. Over 25 percent of self-employed individuals are uninsured. Over 30 percent of people who work for small businesses with fewer than 25 employees are uninsured. Over 20 percent of the people who work for small businesses with fewer than 100 employees are uninsured. Something clearly needs to be done. And that's why we are here, today, debating S. 1955. I want to illustrate why passage of this legislation is necessary. Ramona Rudert and her husband, Michael, have owned Professional Automotive Equipment in North Salt Lake for 28 years. They have 12 employees and they offer health insurance to them. The Ruderts contribute $200 per month to their employees' health care premiums. Their employees have to pay approximately $500 per month for family coverage. Their health insurance plan has a $1000 deductible. So at least there is potential coverage. But here's the kicker: only one of Professional Automotive Equipment's 12 employees decided to be covered by their company's health policy, besides the Rudert family. The rest of their employees cannot afford it. The interesting twist about this story is that Ramona and Michael have a daughter with juvenile diabetes. They recognize that the basic plan may not cover all the services their daughter needs. But when asked why she supports S. 1955, Mrs. Rudert replied that she is ``always looking for ways to improve her employees' access to health care'' and that while she has a daughter with Type 1 diabetes, her greatest concern is about the affordability of insurance premiums for her employees.'' Passage of this bill is the top priority for Mr. and Mrs. Rudert, and thousands of Utah businesses. They recognize that affordability is a key component to making that happen. Let us not make perfect the enemy of the good. It is an economic fact of life that a Federal requirement for small businesses to cover every small business employee for every possible health care-related service is neither appropriate nor affordable. Those who decry this bill because it does not guarantee small business employees a comprehensive plan, must be reminded that most employees of small businesses do not have a choice today, if they are fortunate to have health insurance coverage. The legislation before the Senate will create new options for small businesses and, the potential for more choices. Today, smaller employers do not have the purchasing power of larger employers. If they offer different types of health plans to their employees, the administrative costs of offering these choices are much higher for small employers. But by leveraging their combined purchasing power, some local small business associations are offering plans that give employers more choice. I believe that similar models could be created regionally and nationally through S. 1955 through regional and national associations. The goals of S. 1955 are simple. We want to create more affordable health insurance options through choice and competition. And we want to end the decades-long deadlock and give real relief to America's small businesses and working families. Who can argue with that? And small businesses support the freedom to band together across state lines, even without self-funding. Insurance companies support the creation of a level playing field with Small Business Health Plans. Most important, according to a Mercer study released on March 7, 2006, it is predicted that costs will go down 12 percent for small employers and coverage of the working uninsured will go up 8 percent, approximately 1 million more working Americans. An added benefit is that the Congressional Budget Office, CBO, believes that passage of S. 1955 will reduce net spending in the Medicaid Program. This is due to the enrollment in employer-sponsored insurance plans of people, who under current law, would be covered by Medicaid. CBO estimates that enacting S. 1955 would reduce direct spending for the Federal share of Medicaid expenditures by $235 million over the 2007-2011 period and $790 million over the 2007-2016 period. In addition, the bill would result in estimated Medicaid savings to States totaling $180 million over the 2007-2011 period and $600 million over the 2007-2016 period. CBO estimates that by 2011, approximately 600,000 more people would have health insurance coverage. The majority of these newly covered individuals would be employees of small companies and their dependents. S. 1955 has been endorsed by a host of organizations: The Small- Business Health Plan Coalition; the National Association of Realtors; the Chamber of Commerce, the National Federation of Independent Business; the National Restaurant Association; the National Association of Manufacturers; the Associated Builders and Contractors; the National Association of Home Builders; the National Retail Federation; the Association Healthcare Coalition; the Textile Rental Services Association of America; the Motor & Equipment Manufacturers Association; the Precision Metalforming Association; the American Council of Engineering Council; Women Impacting Public Policy; National Association of Wholesaler-Distributors; Wendy's International which includes Tim Hortons, Wendy's, Baja Fresh and Cafe Express; Cendant Corporation; American Institute of Architects; Federation of American Hospitals; National Funeral Directors Association; HR Policy Association; Motor & Equipment Manufacturers Association; and the Society of American Florists. Mr. President, that is an impressive list of supporters. And I believe that the main reason that we have such an impressive list is due to the leadership of the Chairman Mike Enzi. He and his staff did something that the Senate has not been able to do for over a decade report small business health legislation out of the Senate HELP Committee. For months, Chairman Enzi spearheaded meetings with the major stakeholders of this legislation the insurance companies, the small business groups, and the insurance commissioners. These meetings produced the bill that we are considering today. Again, my colleagues may ask themselves, is this bill really needed? Will it truly make a difference? Just last week a 42-year-old woman from Provo, Utah called my office. Both she and her 9-year-old daughter are diabetics. And she had heard from the American Diabetes Association that S. 1955 would hurt their health coverage. But as my staff explained the bill's important role in allowing small businesses to provide insurance for their employees, including diabetics, she became very emotional. She recalled how, several years ago, she had her own small business. And buying health care for her employees was forcing her toward bankruptcy. So my constituent had to take away their health insurance. This was extremely difficult for her because she herself had a chronic illness and fully understood the implications. She ended up with an individual health insurance policy. And she found that for the same insurance coverage that she had had in her group insurance policy, she had to pay nearly twice as much. This happened for two reasons. First, as an individual, she was not eligible for the tax benefit that supports the cost of insurance paid through employers. And, second--because she had diabetes, a chronic illness, her insurance rating caused her to pay significantly more than someone without that disease. There was no risk pool for her to join. Passage of S. 1955 could have prevented these problems. I urge my colleagues to think about the health care needs of small business employees in their states before voting on this legislation. This legislation will improve their health care options. Today, they rarely have options when it comes to health insurance and when they do, it is extremely expensive. Let me conclude by sharing the sentiments of Chris Kyler, the CEO of the Utah Association of Realtors. Small business owners in Utah are facing a growing crisis with health care availability and affordability. Our profession represents 17% of Utah's gross state product and yet we're arguably the most uninsured working segment in our state simply because we're small business people. As productive contributors to the economy, as a younger, healthier populous, we're supportive of S. 1955 because it will provide us with the opportunity to purchase affordable health insurance. I believe that Mr. Kyler's sentiments sum up why the Senate needs to pass this legislation as soon as possible. I urge my colleagues to support this legislation so that employees of small business will have access to affordable health care. I yield the floor.

Mr. HATCH

Mr. HATCH. Madam President, I share the frustration of the distinguished Senator from Iowa about stem cell research, but I do believe the majority leader is committed to bringing it up, and I expect him to do that, I hope, within the near future. But today I rise to speak in support of S. 22, the Medical Care Access and Protection Act of 2006, and S. 23, the Healthy Mothers and Healthy Babies Access to Care Act. I am a proud cosponsor of both bills. These bills address the medical liability and litigation crisis in our country, a crisis that is preventing patients from receiving high- quality health care or, in some cases, any care at all because doctors are being driven out of practice. This crisis is limiting or denying access to vital medical care and needlessly increasing the cost of care for every American. This issue is much more difficult to assess than just studying physicians who leave practice. The more important issue is how physicians are changing their mode of practice and financial structure in response to increasing costs from medical malpractice insurance premiums. As many know, this crisis began when obstetrician/gynecologists started getting out of the obstetric care business. Unfortunately, it has now progressed to almost all medical specialties, limiting high- risk/low-return activities, such as emergency room coverage, to limit exposure. Just last week, the RAND Corporation reported that over 70 percent of emergency rooms in this country do not have adequate physician staffing. And who ends up suffering the most as a result? Well, the patient does. In a city such as Salt Lake, where there are academic medical centers, this results in patient cases shifting from lower cost community hospitals to the higher cost settings. The chief operating officer of our University of Utah Hospital was in my office recently to discuss the impact of this problem on the financial stability of the hospital. He told us it is becoming increasingly difficult for his hospital to provide care to the poor and uninsured. On the financial side, we are seeing physicians' practices modifying their financial structure and, in some cases, taking advantage of the fact that there is growing demand and diminishing supply in the physician world. Primary care physicians are creating upfront fees for services which also allow for reduced practice size. The bottom line is, lacking a different strategy for reimbursement and/or practice costs--a good part of which is driven by malpractice insurance--we are driving private physicians away from traditional settings. Instead, we are creating a trend that adversely affects physician access and supply and increases costs in other sectors of the health care environment. The Utah Hospital Association president tells me that a major hospital system in Utah saw its malpractice premiums increase 300 percent in the last 10 years, while at the same time being continually recognized nationally for its outstanding clinical practice. The time to act is now. This crisis is jeopardizing access to health care for many Americans. The medical liability crisis also is inhibiting efforts to improve patient safety and stifling medical innovation. Excessive litigation is adding billions of dollars in increased costs and reducing access to high-quality health care. I am really deeply concerned that we are needlessly compromising patient safety and quality health care. We know that about 4 percent of hospitalizations involve an adverse event and 1 percent of hospitalizations involve an injury that would be considered negligent in court. These numbers have been consistent in large studies conducted in my home State of Utah, New York, California, and Colorado, just to mention 4 States. However, the equally troubling statistic is that few cases with actual negligent injuries result in claims and less than one- fifth--that is 17 percent--of claims filed actually involve a negligent injury. This situation has been likened to a traffic cop who regularly gives out more tickets to drivers who go through green lights than to those who run through red lights. Clearly, nobody would defend that method of ensuring traffic safety. And we should not accept such an inefficient and inequitable method of ensuring patient safety. These numbers are a searing indictment of the current medical liability system. I believe we can do better for the American people. The two bills before us are important steps in that path. The problem is particularly acute for women who need obstetrical and gynecological care because OB/GYN is among the top three specialties with the highest professional liability insurance premiums. This has led to many leaving their practices, thus resulting in a shortage of doctors in many States, including my home State of Utah. Studies by both the Utah Medical Association and the Utah Chapter of the American College of Obstetricians and Gynecologists, often called ACOG, underscore the problem in my State. Over half--50.5 percent--of Utah family practitioners have already given up obstetrical services or never even begun the practice of obstetrics at all. Of the remaining 49.5 percent who still deliver babies, 32.7 percent say they plan to stop providing obstetric services within the next decade. Most plan to stop within the next 5 years. An ACOG survey revealed that over half--53.16 percent--of OB/GYNs in Utah have changed their practice. They are retiring, relocating, or dropping obstetrics because of the medical liability reform crisis. This change in practice leaves 1,458 pregnant Utahns without OB/GYN care. The medical liability crisis, while affecting all medical specialties and practices, hits OB/GYN practices especially hard. Astonishingly, three-quarters--76.5 percent--of obstetrician/gynecologists report being sued at least once in their career. Indeed, over one-fourth of OB/GYN doctors will be sued for care given during their residency. These numbers have discouraged Americans finishing medical school from choosing this vital specialty. I know this is the case in my home State of Utah. Currently, one-third of OB/GYN residency slots are filled by foreign medical graduates, compared to only 14 percent one decade ago. That is one-third to 14 percent. OB/GYN doctors are particularly vulnerable to unjustified lawsuits because of the tendency to blame the doctor for brain-injured infants, although research has proven that physician error is responsible for less than 4 percent of all neurologically impaired babies. Ensuring the availability of high-quality prenatal and delivery care for pregnant women and their babies--the most vulnerable members of our society--is imperative. We need to pass this legislation. An August 2003 GAO report concluded that States that have enacted tort reform laws with caps on noneconomic damages have slower growth rates in medical malpractice premiums and claims payments. From 2001 to 2002, the average premiums for medical malpractice insurance increased about 10 percent in States with caps on noneconomic damages. In comparison, States with more limited reforms experienced an increase of 29 percent in medical malpractice premiums. Overall, the situation has gotten worse. In 2004, malpractice insurance costs increased 55 percent; in 2005, 34 percent; and in 2006, 18 percent. That is 107 percent in just 3 years. Now, under anybody's measure, that is an unfair cost for physicians to bear for a system that does not achieve the goal of either rewarding the most injured patients or improving the safety and quality of health care. Medical liability litigation directly and dramatically increases health care costs for all Americans. In addition, skyrocketing medical litigation costs indirectly increase health care costs by changing the way doctors practice medicine. Defensive medicine is defined as medical care that is primarily or solely motivated by fear of malpractice claims and not by the patient's medical condition. According to a survey of 1,800 doctors published in the journal, Medical Economics, more than three-quarters of doctors believed they must practice defensive medicine. A study of defensive medicine conducted by the current director of the Centers for Medicare and Medicaid Services, Dr. Mark McClellan, before he took office used national health expenditure data and showed that medical liability reform had the potential to reduce defensive medicine expenditures by $69 billion to $124 billion in 2001, an amount that is between 3.2 and 5.8 times the amount of malpractice premiums. That amount would be significantly greater today The financial toll of defensive medicine is great and especially significant for reform purposes as it does not produce any positive health benefits. Not only does defensive medicine increase health care costs, it also puts Americans at avoidable risk. Now, there is good defensive medicine and there is bad defensive medicine. But the vast majority of defensive medicine is extra defenses in order to have the history of the patient show the doctor did everything in his power. Frankly, that leads to more and increased costs every time the doctor has to do extraordinary analyses just to make sure his history has everything he possibly can think of in it, even though that is very seldom necessary. Nearly every test and every treatment has possible side effects. Thus, every unnecessary test, procedure, and treatment potentially puts a patient in harm's way. Seventy-six percent of physicians are concerned that malpractice litigation has hurt their ability to provide quality care to patients. What can we do to address this crisis? The answer is plenty. And there are excellent examples of what works. HHS has reported how reasonable reforms in some States have reduced health care costs and improved access to and quality of care. More specifically, in States with limits of $250,000 to $350,000 on noneconomic damages, premiums have increased at an average of just 18 percent compared to 45 percent in States without such limits. California enacted the Medical Injury Compensation Reform Act, also known as MICRA, more than a quarter century ago. MICRA slowed the rate of increase in medical liability premiums dramatically without affecting negatively the quality of health care received by the State's residents. As a result, doctors are not leaving California. Furthermore, between 1976 and 2000, premiums increased by 167 percent in California while they increased three times as much--505 percent--in the rest of the country. Consequently, Californians were saved billions of dollars in health care costs and Federal taxpayers were saved billions of dollars in the Medicare and Medicaid Programs. Before coming to Congress, I litigated several medical liability cases as a defense lawyer. I have seen heart-wrenching cases in which mistakes were made. But, more often, I have seen heart-wrenching cases in which mistakes were not made and doctors were forced to expend valuable time and resources defending themselves against frivolous lawsuits. And the vast majority of these suits are frivolous. An Institute of Medicine report, ``To Err Is Human,'' concluded that ``the majority of medical errors do not result from individual recklessness or the actions of a particular group--this is not a `bad apple' problem. More commonly, errors are caused by faulty systems, processes, and conditions that lead people to make mistakes or fail to prevent them.'' We need reform to improve the health care systems and processes that allow errors to occur and to identify better when malpractice has not occurred. The reform that I envision would address litigation abuses in order to provide swift and appropriate compensation for malpractice victims, redress for serious problems, and ensure that medical liability costs do not prevent patients from accessing the care they need. So we need to move ahead with legislation to improve patient safety and reduce medical errors. Without tort reform, juries are awarding astounding and unreasonable sums for pain and suffering. A sizable portion of those awards goes to the attorney rather than the patient. The result is that doctors cannot get insurance and patients cannot get the care they need. All Americans deserve the access to care, the cost savings, and the legal protections that States like California and Texas provide their residents. Today's bills will allow us to begin to address this crisis in our health care system, give our citizens, especially women and their babies, access to OB/GYN doctors, and enable physicians to provide high-quality, cost-effective medical care. So I strongly support this legislation and urge my colleagues to support cloture on the motion to proceed. I yield the floor.