Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. If the Senator will yield, what we were looking for is that--we are glad to take it off. But we were hopeful, if it was going to be the desire to go ahead with a recess appointment, whenever that was, we at least have an opportunity to have this vote sometime in the future. If they are not going to have the recess appointment, this disappears. But I hope we would have that opportunity at the present time. I do not think that is an unreasonable request, if it is the desire of the administration to move ahead with this nominee with a recess appointment, that at least we come back to where we are now and would have some opportunity to express ourselves. We would be giving that up if we just vitiate the whole thing. He could say we are going to go ahead and he is going to appoint him as a recess appointment during the July break or sometime in the August break. That is the dilemma that we are in.

Mr. KENNEDY. That is satisfactory.

Mr. KENNEDY. I object.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, reserving the right to object, I thought we talked with the leader about a process and a procedure, of which the leader was agreeable, that we would have a chance--if there is going to be a recess appointment--that we would have an opportunity to go ahead and have a cloture vote prior to that time.

Mr. KENNEDY. To this body prior to the recess appointment?

Mr. KENNEDY. Mr. President, I rise to oppose the nomination of Richard Stickler to be the head of the Mine Safety and Health Administration. I urge my colleagues to join me in voting no on cloture on this nomination. There is a safety crisis in our Nation's mines. In less than 6 months, 33 workers have been killed in our coal mines--11 more than lost their lives in all of last year. Since Richard Stickler was nominated to lead MSHA last September, 53 miners have been killed in mining accidents. As a recent front page article in the Wall Street Journal said, there has been ``an alarming upswing in coal-mining accidents, at a time when the coal industry is in the midst of a boom.'' Coal profits are skyrocketing, but miners are paying the price with their lives. This was brought home to me all too painfully when I traveled with other members of the HELP Committee to West Virginia this winter. We met with the families of the 12 miners killed at Sago Mine, and we promised to fix this broken system. As these grieving families can tell you, their government has let coal miners down. And if we confirm Richard Stickler to head the Mine Safety and Health Administration, we will be letting them down again. Our Nation's miners and their families deserve a strong and visionary leader to lead the Mine Safety and Health Administration during this time of turmoil in the mine industry. As his record clearly demonstrates, Mr. Stickler is not the man for this critical job. He has shown over and over again that safety is his last priority. He spent the overwhelming part of his career as a coal industry executive, focused on profits and production, not on worker safety. In some mines that he managed, injury rates actually went up--sometimes far above the national average. For example, when he was Senior Manager at the Eagle's Nest Mine in Van, WV, the injury rate was almost three times the national average. While he ran the Marianna Mine from 1983 to 1987, the injury rate climbed dramatically during his tenure. In the 8 years leading up to his appointment to lead the Pennsylvania Bureau of Deep Mine Safety, mines he managed had a total of nearly 3,000 safety violations. One hundred of the violations were so serious, they resulted in MSHA closing part of the mine. During Mr. Stickler's tenure as the head of the Pennsylvania Bureau of Deep Mine Safety, he continued to favor mining companies over miner safety. He granted waivers and bent the rules for coal mining companies over and over again. He created huge loopholes in rules designed to prevent mine fires on conveyor belts and to guarantee that miners could reach safe places to protect themselves from runaway railcars. Things got so bad in Pennsylvania during his tenure that one mine inspector called Stickler's special favors for the coal industry, ``a detriment to safety . . . that would, without a doubt, make the coal industry less safe for two-thirds of its workers.'' He was also in charge when the terrible accident at Quecreek occurred, trapping nine men underground in a flooded mine shaft for more than 3 days. We all sent our prayers and support to the miners' families as we watched the rescue operation hour by hour on television. America was horrified that this could happen. A grand jury inquiring into that accident confirmed our suspicions when it found that the system of regulating underground coal mines in Pennsylvania, which included Mr. Stickler's job of protecting miner safety, was ``inadequate, antiquated, and in need of significant changes.'' That accident was a clarion call for the need to dramatically improve mine safety. The lessons of Quecreek mean that Mr. Stickler, more than anyone, should have known of the need to overhaul our mine safety, and particularly emergency rescue laws. In addition to the Quecreek experience, when Mr. Stickler testified before our committee earlier this year, the coal mine tragedies in West Virginia had just gripped the Nation. Sixteen men had already died in our Nation's coal mines in just 4 weeks. They had lost their lives doing their jobs. Their families were left only with their memories. We owed it to those families to stand with them and demand immediate action to prevent more deaths. Yet when we asked Mr. Stickler whether mine safety laws needed reform, he told us that he ``thinks the laws are generally adequate.'' Time and again, his response to the most pressing questions on mine safety was that he needed to think about it. We asked him about how to speed the adoption and encourage the development of new mine safety technology. We asked him whether he thought mine rescue teams should be readily available, as required by current law. We asked him whether rescue chambers should be required in every coal mine. We asked him whether he would ban the use of conveyor belts to ventilate mines. We asked him whether he would implement MSHA's rule decreasing diesel fumes in mines. Did he agree with our call to action? Did he promise to take concrete steps to save the lives of coal miners in danger? Not at all. Over and over again in the hearing, in the midst of the tragedy, he responded only that he needed to ``study,'' ``analyze,'' ``review,'' or ``reevaluate'' the situation. This heartless performance showed how out of step he is with this Congress and with mining families in America. Congress has enacted sweeping mine safety legislation that is now on its way to the President's desk. Four States--including West Virginia, Illinois, Pennsylvania, and Kentucky--have also passed or are considering strong new mine safety laws. Yet the person the President wants to lead our mine safety agency is content with the status quo. It is no wonder that Mr. Stickler's nomination is opposed by the United Mineworkers of America, the Steelworkers and Petrochemical Atomic Workers, the Boilermakers, the International Brotherhood of Electrical Workers, and the AFL-CIO. The Charleston West Virginia Gazette also opposes this nomination, and urges President Bush to ``find a qualified MSHA nominee to send before the U.S. Senate.'' Most importantly, Mr. Stickler's nomination is opposed by the people who have the most to lose with a weak mine safety leader--the families of coal miners themselves. I have received letters from women in West Virginia, Kentucky, and Alabama, who lost their husbands and fathers in mining accidents this year--pleading with this Congress to oppose this nomination. I think Peggy Ware from West Virginia summarizes their thoughts best: ``I know it is too late for my father and the other miners that have lost their lives this year but we can make it safe for all our current miners. Our miners deserve better leadership than someone who will not be aggressive and someone that doesn't appear to recognize there is a problem with our mining industry. This has been one of the deadliest years in mining history. So once again I ask you to please oppose Mr. Stickler's nomination.'' I will ask that these letters be printed in the Record. Our Nation's miners and their families have had enough of the status quo. They deserve someone who is going to fundamentally change course in miner safety, not cover for the industry. They deserve someone who will make the United States once again a leader in mine safety, instead of a place where miners have to rely on safety equipment that is 30 years old. They deserve more than more of the same cuts to mine safety enforcement, and withdrawal of safety regulations, instead of pioneering new safety standards. Congress decided it is time for a change by passing the MINER Act, the most significant improvement to mine safety law in a generation, and President Bush is expected to sign it into law this week. We saw unprecedented cooperation between industry and labor, Republicans and Democrats on this legislation because the mandate for action was clear. We had to act to stop the tragic trend that started with the New Year and the disaster at Sago. The act imposes broad new requirements to protect miners in the event of an emergency, and ensures that communications, oxygen, and rescue teams are in place to help miners survive. This new law will usher in a new era in mine emergency response. MSHA will be responsible for reviewing mines' emergency response plans. It will issue regulations to raise the standard for seals on abandoned sections of mines to prevent the next Sago or Darby disaster, and it must make critical decisions about the use of conveyor belts to ventilate mines and refuge chambers. These choices will determine the state of mine safety for another generation. They will determine whether coal miners will live or die the next time there is an accident. How can we entrust these critical reforms in the MINER Act to an agency head like Richard Stickler who thinks they are unnecessary? We owe it to the miners who have died this year and to those who go into those same mines every day to demand a leader for MSHA who find solutions, not someone who can't even recognize the problem. For the sake of the miners and their families, I am voting no on cloture on this nomination, and I urge my colleagues to do the same. I ask unanimous consent that the aforementioned letters be printed in the Record.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, American families face great challenges in dealing with the rapidly changing global economy. The value of their wages is declining, the cost of living is going up, and many jobs are moving overseas. More and more Americans feel the American dream is slowly slipping out of reach. We can and must deal more effectively with this problem. We have a responsibility to make the investments that are necessary to our progress--a responsibility to our families, to our economy, to our Nation, and even to our national security. We can guarantee America's continuing prosperity in the future, but we must work for it. We must sacrifice for it. The rest of the world is playing for keeps. We cannot just tinker at the margins if we expect to continue to be a leader in this rapidly shrinking world. We must ensure that our citizens can achieve the American dream once again. To do so, our highest priority must be a world class education for every American. We must make the American employee and employer the best educated, best trained, and most capable in the world. We need to strengthen the capacities of every person in the Nation. This isn't just my opinion. In recent years, study after study has emphasized education as the solution to keeping America competitive in the years to come. Last year, the Council on Competitiveness urged a focus on lifelong skill development--through elementary, secondary and higher education, and through training and workforce support, as essential to keeping America on the cutting edge of innovation. A recent National Academy of Sciences report contains these recommendations. Two of the report's four major recommendations state that education is the solution to meeting the global challenge. The National Association of Manufacturers has also issued a report urging a renewed focus on education and training to keep American businesses competitive. Other industrialized countries are embracing education as the key to competing in this new economy, but America is slipping behind. We rank 28th out of 40 nations in math education. We were 3rd in the world in 1975 in the production of new scientists and engineers, but now we rank 15th. By 2008, 6 million U.S. jobs will go unfilled because our workforce will not be qualified to fill them. These shortcomings threaten both our economic security and our national security. The last time America was shocked into realizing we were unacceptably behind in math and science was in 1957, when the Soviet Union launched Sputnik. To meet that crisis, Republican President Eisenhower worked closely with a Democratic Congress to pass the National Defense Education Act. The new law declared a national ``education emergency,'' and we doubled the Federal investment in education virtually overnight. Today I join with my colleagues, Senator Clinton and Senator Kerry, to introduce a new National Defense Education Act for our own day and generation. To respond to this major challenge, we must ensure our education standards are internationally competitive, so that our high school graduates can succeed in the new economy. We must make a commitment to all students--regardless of the studies they choose to pursue--that cost will not be a barrier to a college degree. We must strengthen math and science education in this country by making college free for students training to become math or science teachers in high need schools. Our New National Defense Education Act responds to each of these imperatives. It modernizes our education system and equips Americans with 21st century knowledge and skills. It provides incentives and resources for schools to develop and implement more rigorous standards in math, science and reading. The legislation updates the Nation's report card--the National Assessment of Educational Progress--to ensure that it sets a national benchmark which is internationally competitive and is aligned with the demands of the 21st century global economy. It expands our ability to monitor science achievement. It requires the NAEP to measure student preparedness to enter college, the 21st century workforce, or the armed services. It also requires the Secretary of Education to examine the gaps in student performance on State-level assessments and NAEP assessments, and to assist States in understanding those gaps. It provides critical resources to states to create PreK-16 Preparedness Councils to help them with their efforts to improve state standards and ensure that they are aligned with the expectations of colleges, employers, and the Armed Services. It also provides funding to States working in collaboration to establish common standards and assessments. The New NDEA also directs resources to high need schools, to enable them to invest in math, science, engineering and technology textbooks and laboratories, and give their students equal access to a curriculum that will provide the skills they need to be successful in the 21st century global economy. The legislation recognizes the critical role of the National Science Foundation in ensuring our children have access to cutting-edge science and technology programs, by doubling the investment in elementary, secondary, and postsecondary education programs at NSF. The New NDEA also helps open the doors of college to all by creating the Contract for Educational Opportunity grant program, or ``CEO Grants,'' which guarantee students that if they work hard and are admitted to college, their financial need will be met through additional State and Federal financial aid. The legislation also offers additional grants to make college tuition free for low- and middle-income students studying science, technology, engineering or math, as well as critical-need foreign languages. The bill provides larger grants to students studying to become teachers in these fields who agree to work in a high poverty school for at least 4 years. It also provides teachers with tax credits, increased loan forgiveness and additional incentives to continue to teach where they are needed the most. It provides grants to institutions of higher education to develop innovative programs for recruiting and training new teachers, and invests in teacher training programs to support their continuing education. The bill recognizes that it is increasingly important for students to be exposed to other languages and cultures. In recent years, foreign language needs have significantly increased throughout the public and private sector because of the wider range of security threats, the emergence of new nation states, and the globalization of the U.S. economy. American businesses increasingly need employees experienced in foreign languages and international cultures to manage a culturally diverse workforce. The New NDEA responds to these needs by providing grants for elementary and secondary critical-need language programs, summer institutes to improve teachers' knowledge and instruction of foreign languages and international content, and study abroad and foreign language study opportunities for high school students, and undergraduate and graduate students. The New NDEA also continues to invest in our current workforce. The bill builds on existing formula funds for job training with competitive grants to support innovative strategies to meet emerging labor market needs. From our earliest days as a nation, education has been the engine of the American dream. Our country is home to the greatest universities in the world, and our education system has produced the world's leading teachers, scientists, writers, musicians, and inventors. We cannot let these achievements stall. Slogans are not enough. We have to put first things first, and give children, parents, schools, communities and states the support they need to refuel the amazing engine of education and keep our country great in the years ahead. I urge my colleagues to join us in making this strong new commitment to securing our Nation's future by supporting the New National Defense Education Act. Mr. President, I ask unanimous consent that the text of the New National Defense Education Act be printed in the Record.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, American families face great challenges in dealing with the rapidly changing global economy. The value of their wages is declining, the cost of living is going up, and many jobs are moving overseas. More and more Americans feel the American dream is slowly slipping out of reach. We can and must deal more effectively with this problem. We have a responsibility to make the investments that are necessary to our progress--a responsibility to our families, to our economy, to our Nation, and even to our national security. We can guarantee America's continuing prosperity in the future, but we must work for it. We must sacrifice for it. The rest of the world is playing for keeps. We cannot just tinker at the margins if we expect to continue to be a leader in this rapidly shrinking world. We must ensure that our citizens can achieve the American dream once again. To do so, our highest priority must be a world class education for every American. We must make the American employee and employer the best educated, best trained, and most capable in the world. We need to strengthen the capacities of every person in the Nation. This isn't just my opinion. In recent years, study after study has emphasized education as the solution to keeping America competitive in the years to come. Last year, the Council on Competitiveness urged a focus on lifelong skill development--through elementary, secondary and higher education, and through training and workforce support, as essential to keeping America on the cutting edge of innovation. A recent National Academy of Sciences report contains these recommendations. Two of the report's four major recommendations state that education is the solution to meeting the global challenge. The National Association of Manufacturers has also issued a report urging a renewed focus on education and training to keep American businesses competitive. Other industrialized countries are embracing education as the key to competing in this new economy, but America is slipping behind. We rank 28th out of 40 nations in math education. We were 3rd in the world in 1975 in the production of new scientists and engineers, but now we rank 15th. By 2008, 6 million U.S. jobs will go unfilled because our workforce will not be qualified to fill them. These shortcomings threaten both our economic security and our national security. The last time America was shocked into realizing we were unacceptably behind in math and science was in 1957, when the Soviet Union launched Sputnik. To meet that crisis, Republican President Eisenhower worked closely with a Democratic Congress to pass the National Defense Education Act. The new law declared a national ``education emergency,'' and we doubled the Federal investment in education virtually overnight. Today I join with my colleagues, Senator Clinton and Senator Kerry, to introduce a new National Defense Education Act for our own day and generation. To respond to this major challenge, we must ensure our education standards are internationally competitive, so that our high school graduates can succeed in the new economy. We must make a commitment to all students--regardless of the studies they choose to pursue--that cost will not be a barrier to a college degree. We must strengthen math and science education in this country by making college free for students training to become math or science teachers in high need schools. Our New National Defense Education Act responds to each of these imperatives. It modernizes our education system and equips Americans with 21st century knowledge and skills. It provides incentives and resources for schools to develop and implement more rigorous standards in math, science and reading. The legislation updates the Nation's report card--the National Assessment of Educational Progress--to ensure that it sets a national benchmark which is internationally competitive and is aligned with the demands of the 21st century global economy. It expands our ability to monitor science achievement. It requires the NAEP to measure student preparedness to enter college, the 21st century workforce, or the armed services. It also requires the Secretary of Education to examine the gaps in student performance on State-level assessments and NAEP assessments, and to assist States in understanding those gaps. It provides critical resources to states to create PreK-16 Preparedness Councils to help them with their efforts to improve state standards and ensure that they are aligned with the expectations of colleges, employers, and the Armed Services. It also provides funding to States working in collaboration to establish common standards and assessments. The New NDEA also directs resources to high need schools, to enable them to invest in math, science, engineering and technology textbooks and laboratories, and give their students equal access to a curriculum that will provide the skills they need to be successful in the 21st century global economy. The legislation recognizes the critical role of the National Science Foundation in ensuring our children have access to cutting-edge science and technology programs, by doubling the investment in elementary, secondary, and postsecondary education programs at NSF. The New NDEA also helps open the doors of college to all by creating the Contract for Educational Opportunity grant program, or ``CEO Grants,'' which guarantee students that if they work hard and are admitted to college, their financial need will be met through additional State and Federal financial aid. The legislation also offers additional grants to make college tuition free for low- and middle-income students studying science, technology, engineering or math, as well as critical-need foreign languages. The bill provides larger grants to students studying to become teachers in these fields who agree to work in a high poverty school for at least 4 years. It also provides teachers with tax credits, increased loan forgiveness and additional incentives to continue to teach where they are needed the most. It provides grants to institutions of higher education to develop innovative programs for recruiting and training new teachers, and invests in teacher training programs to support their continuing education. The bill recognizes that it is increasingly important for students to be exposed to other languages and cultures. In recent years, foreign language needs have significantly increased throughout the public and private sector because of the wider range of security threats, the emergence of new nation states, and the globalization of the U.S. economy. American businesses increasingly need employees experienced in foreign languages and international cultures to manage a culturally diverse workforce. The New NDEA responds to these needs by providing grants for elementary and secondary critical-need language programs, summer institutes to improve teachers' knowledge and instruction of foreign languages and international content, and study abroad and foreign language study opportunities for high school students, and undergraduate and graduate students. The New NDEA also continues to invest in our current workforce. The bill builds on existing formula funds for job training with competitive grants to support innovative strategies to meet emerging labor market needs. From our earliest days as a nation, education has been the engine of the American dream. Our country is home to the greatest universities in the world, and our education system has produced the world's leading teachers, scientists, writers, musicians, and inventors. We cannot let these achievements stall. Slogans are not enough. We have to put first things first, and give children, parents, schools, communities and states the support they need to refuel the amazing engine of education and keep our country great in the years ahead. I urge my colleagues to join us in making this strong new commitment to securing our Nation's future by supporting the New National Defense Education Act. Mr. President, I ask unanimous consent that the text of the New National Defense Education Act be printed in the Record.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it is an extraordinary honor to be able to speak a few words about my friend, the senior Senator from the State of West Virginia, as he makes history yet again. There are precious few opportunities in life to recognize greatness in our midst, but today we have that opportunity. We honor our friend not simply because he's become the longest-serving Senator in our history, but also because there's no doubt that he's earned his rightful place besides Henry Clay, Daniel Webster, John Calhoun, and other giants in Senate history. Bob Byrd's life is a tribute to the power of the American dream-- rising from humble beginnings, this son of the Appalachian coal fields reached the pinnacle of power and accomplishment through decades of hard work and unwavering dedication. His life is also a tribute to the power of love and commitment. Bob Byrd's commitment and love for the Senate and the country is total and complete, just as they are for the people of West Virginia and his beloved Erma, with whom he shared one of America's great love stories. Erma and Bob would have celebrated her birthday today--and we're saddened that she could not be here to share this extraordinary moment. But we know she's looking down from heaven with a smile for the young boy who once shared his chewing gum with her more than 70 years ago. This is a special day for me as well, because it's a time to tell my friend how much he means to me, and how much I believe his service means to our Nation. For longer than I've been in public life, I've known Robert C. Byrd. I first came to know him during the famed West Virginia Presidential primary of 1960. Bob was a new Senator and moving up through the ranks as a protege of Senate Majority Leader Lyndon Johnson. My brother Jack and Bob were colleagues in the Senate, but Jack knew it was inevitable that Bob would be looking out for LBJ in the Mountain State, and hoping to deny us the victory we needed. Jack had won the Wisconsin primary, and the stakes were high in West Virginia. It was a spirited campaign in which all of us in the Kennedy family got to see the extraordinary qualities of the people of West Virginia-- kindness, compassion for their fellow citizens, and perseverance even in the face of enormous obstacles--the qualities that Bob Byrd knew and loved. Jack campaigned extremely well in the state and came love the people too, and he never forgot the boost they gave him during that hard-fought campaign. President Kennedy and Robert C. Byrd formed a powerful partnership, and one of Jack's first official acts in office was to authorize the shipment of emergency rations to help the people of Appalachia recover from a disaster. They worked together to create the Appalachian Regional Commission, which lifted thousands out of poverty, and eliminated many of the barriers that had isolated the region from the economic mainstream of the Nation. They invested in the people, and it worked. President Kennedy and Senator Robert C. Byrd understood that if you give Americans opportunity and hope, there is no limit to what they can accomplish. For me personally, it's impossible to imagine the Senate without Senator Byrd. He defeated me for Majority Whip in 1971. We both thought we had the votes lined up to win, and it was Bob who taught me how to count votes as he went on to become an outstanding Whip and later an outstanding Majority Leader. My consolation prize was being set free to focus on the legislative issues I care most about. Over the years in the Senate together, we've all come to rely on Senator Byrd as the great defender of this institution and the champion of the Constitution. He doesn't defend the Constitution simply when it's in fashion to do so. He doesn't yield when political convenience suggests that the Legislative Branch should demur for the sake of comity or to accomplish a popular goal. Bob Byrd understands that the founders intended each branch of government to have powers that could place them in conflict, and that the powers Congress cedes to the executive today may have dire consequences for the Nation tomorrow. In this role, he is the guardian of the Senate and the ideals that Washington, Adams, Jefferson, Madison, and Hamilton fought to enshrine when they created our government. I have many warm memories of Bob Byrd as leader, as friend, and as scholar. One that comes to mind now is our barnstorming trip through West Virginia during the 2004 Presidential campaign. We traveled by bus around the state from Charleston to Mingo and Logan counties and wherever we stopped, you could feel the love and respect that the people of West Virginia had for Bob Byrd. At one stop, he even jumped up onto the back of a flatbed truck to deliver a stemwinder. I was committed to the campaign as well, but that was a tactic I thought best be left to Bob. In the end we came up short in the West Virginia on election day, but I'll never forget the fun we had those last few weeks of October, and I'm eternally grateful to Bob for inviting me. I'll cherish the memory forever. Of all the remarkable attributes of Senator Byrd, few have impressed more than his ability to memorize and recite poetry. As a child, this was always one of my greatest challenges at school and I'm awed by Bob's extraordinary talent. His mind must hold hundreds of verses that he can recite at a moment's notice. One of my favorites describes the responsibilities we have as public servants to address the causes of the problems that confront us, not just the consequences of those problems. It's about whether it's better to build a fence around the edge of a cliff, or keep an ambulance ready in the valley below. I can't recite it from memory like he can, but this is how it goes. It was written by Joseph Malins in 1895: Twas a dangerous cliff, as they freely confessed, Though to walk near its crest was so pleasant; But over its terrible edge there had slipped A duke, and full many a peasant. The people said something would have to be done, But their projects did not at all tally. Some said ``Put a fence 'round the edge of the cliff,'' Some, ``An ambulance down in the valley.'' The lament of the crowd was profound and was loud, As the tears overflowed with their pity; But the cry for the ambulance carried the day As it spread through the neighbouring city. A collection was made, to accumulate aid, And the dwellers in highway and alley Gave dollars or cents--not to furnish a fence-- But an ambulance down in the valley. ``For the cliff is all right if you're careful,'' they said; ``And if folks ever slip and are dropping, It isn't the slipping that hurts them so much As the shock down below--when they're stopping.'' So for years (we have heard), as these mishaps occurred Quick forth would the rescuers sally, To pick up the victims who fell from the cliff, With the ambulance down in the valley. Said one, to his pleas, ``It's marvel to me That you'd give so much greater attention To repairing results than to curing the cause; You had much better aim at prevention. For the mischief, of course, should be stopped at its source; Come, neighbours and friends, let us rally. It is far better sense to rely on a fence Than an ambulance down in the valley.'' ``He is wrong in his head,'' the majority said; ``He would end all our earnest endeavour. He's a man who would shirk this responsible work, But we will support it forever. Aren't we picking up all, just as fast as they fall, And giving them care liberally? A superfluous fence is of no consequence, If the ambulance works in the valley.'' The story looks queer as we've written it here, But things oft occur that are stranger. More humane, we assert, than to succour the hurt Is the plan of removing the danger. The best possible course is to safeguard the source By attending to things rationally. Yes, build up the fence and let us dispense With the ambulance down in the valley. That's the principle Bob Byrd has followed throughout his brilliant career in the Senate. He's a Senator for the ages, and it's an extraordinary honor and privilege to know him, to serve with him, and to learn from him.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, we have before the Senate the extremely important Defense authorization bill, led in the Armed Services Committee by my friend, the Senator from Virginia, Mr. Warner, and the Senator from Michigan, Mr. Levin. I look forward to these next several days debating this issue. I commend them, as we begin this debate, for the way they considered the various recommendations and suggestions that have been made by the members of the committee in developing this bill. I ask unanimous consent to proceed for a few minutes in morning business.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, all of us in New England are proud of the Boston Celtics and their skill on the basketball court. We're also proud of the support they give to those who need help in our communities. Each year, the Celtics organization honors outstanding persons in New England as ``Heroes Among Us''--men and women who make an especially significant impact on the lives of others. The award is now in its ninth year, and the extraordinary achievements of the honorees this year include saving lives, sacrificing for others, overcoming obstacles to achieve goals, and making lifelong commitments to improve the lives of those around them. The honorees include persons of all ages and all walks of life-- students, community leaders, founders of non-profit organizations, members of the clergy, and many others. At home games during this season, the Celtics, their fans and the Massachusetts State Lottery saluted the efforts of each honoree in special presentations on the basketball court. Over 300 individuals have now received the ``Heroes Among Us'' award, and it has become one of the most widely recognized honors in New England. I commend each of the honorees for the 2005-2006 season. They are truly heroes among us, and I ask unanimous consent that their names and communities may be printed in the Record. Bill Driscoll, Jr., Milton, MA Captain Bob DeFlaminis, Franklin, MA Sergeant Jim Flaherty, Quincy, MA Michael Rodrigues, Hopedale, MA Nick Prefontaine, Shrewsbury, MA Chiara Arcidy, Bedford, NH Dr. Sam Nosike, Watertown, MA Brendan and Kelley McDonough, North Chelmsford, MA Principal Bill Henderson and Patrick O'Hearn Elementary School, Dorchester, MA Carrie Larson, Bedford, MA Brian Russell, Merrimack, NH Dr. Peter Raffalli, North Andover, MA Bob Manger, Scituate, MA Jay Blake, Marston Mills, MA Jane Smith, Shrewsbury, MA Adam Roberge, East Kingston, NH Stuart Molk, Danvers, MA Ron Bell, Milton, MA Marie Poulin, Quincy, MA David Russell, Ipswich, MA Ryan Curtis, Lynn, MA Alex Ingoglia, Malden, MA Matthew Scibelli, Malden, MA Brian Short, Medford, MA Mirelle Manzone, Dover, MA David and Stephanie Dodson, Weston, MA Anthony Fiorino, East Boston, MA Josh Algarin, Holbrook, MA Georgiana Melendez, Peabody, MA Reverend William Dickerson, Dorchester, MA Theresa Reilly, Roslindale, MA Dean Levy, Marshfield, MA Sean McDonough, North Quincy, MA Sarah Fader, Ipswich, MA Suzanne Wintle, Weston, MA Tiesha Hughes, Boston, MA Stan Kosloski, Cromwell, CT Ron Goodman, Quincy, MA Theresa Lynn, Jamaica Plain, MA Denise Carriere, Andover, MA Mark Mitchell, West Springfield, MA Donna Tardif, Freeport, ME Lieutenant Jim Meeks, Chestnut Hill, MA Donna Fournier Cuomo, North Andover, MA Members of the Original Tuskegee Airmen: Luther McIlwain, Methuen, MA, James Sheppard, Portland, ME

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the audacity of the Bush administration and their congressional allies truly knows no limit. In spite of all of the urgent problems facing our Nation--from the ongoing war in Iraq, to the devastating hurricane damage along the gulf coast that has not yet been repaired, to the outrageously high gasoline prices that are squeezing American families--the top Republican priority is eliminating the estate tax for the richest families in the country. President Bush's policies have already added nearly $3 trillion to the national debt in the last 5 years. Now, they are proposing more of the same, more tax breaks benefiting only the wealthiest among us. The first 10 years of estate tax repeal would cost $800 billion in lost revenue, nearly a trillion dollars when the cost of interest on the higher national debt that would result is included. It is unaffordable. It is the ultimate example of misplaced priorities. Repealing the estate tax would cost as much each year as the Federal Government spends on homeland security, and it would cost more than we spend on education. And, it would be grossly unfair. Today, under current law, only 5 estates in 1,000 are subject to the estate tax. By 2009, only 3 estates in 1,000 will be subject to the estate tax. Only estates over $3.5 million will be taxed. Thus, repealing the estate tax would only benefit a few thousand heirs of the richest men and women in the country. One columnist recently called it the ``Paris Hilton Tax Break'' and that description accurately identifies who would benefit from such an enormous tax giveaway. The notion of an estate tax is nothing new or radical. We have had an estate tax for over 100 years. During much of that period, it covered a far greater percentage of estates than we are taxing today. One of the strongest advocates of the estate tax was Teddy Roosevelt, who believed it was essential to a fair and democratic society. Those who have benefited most from the opportunities America offers have a special obligation to contribute something back to their country. Advocates of repeal always claim that the estate tax forces the sale of large numbers of farms and small businesses each year. That claim is greatly exaggerated. CBO analyzed this issue. It concluded that if the 2009 exemption level of $3.5 billion had been in place in 2000, only 94 small businesses and 65 farms in the entire country would have owed any estate tax. Of those, most had sufficient liquid assets to cover the estate tax owed without touching the business or farm. The few that did not, have the option of paying the tax in installments over 14 years. These small businesses and farms are being used as a sympathetic Trojan horse to conceal those who would really benefit from estate tax repeal. The real beneficiaries of repeal would be the heirs of the richest men and women in America. If we eliminate the estate tax on the largest concentrations of wealth in our society, we will be permitting the very few who inherit huge amounts of money to receive their millions tax free while working Americans have to pay substantial taxes on their wages. It would be terribly unfair to tax work while giving inherited wealth a free ride. The estate tax is the most progressive of all Federal taxes. At a time when the income gap between the wealth few and the middle class has grown disturbingly wide--wider than it has been in decades, why would we want to transfer more of the tax burden from the rich onto the shoulders of middle class families. Make no mistake, the trillion dollars that would be lost should the estate tax be repealed will have to be made up by increasing other federal taxes, taxes paid mostly by the middle class. That is the injustice of repealing the estate tax. What we should do is make permanent the estate tax that will be in place in 2009--covering estates over $3.5 million--$7 million per couple--with a top tax rate of 45 percent. Only three-tenths of 1 percent of estates would owe any tax under that proposal. While the maximum rate of 45 percent may sound high, that figure is very misleading. Analyses show that the effective tax rate on these estates--the rate after the $3.5 million exemption and other available deductions are taken into consideration--would be, on average, only 17 percent. I believe all the revenue from preserving the estate tax at the 2009--level should be statutorily dedicated to the Social Security trust fund. Saving Social Security for the many who depend on it is far more important than repealing the estate tax for the wealthiest few. No Government program reflects the values of the American people better than Social Security. We are a community that takes care of our most vulnerable members: the elderly, the disabled, and children whose parents have died prematurely. Two out of every three retirees receive over one-half of their income from Social Security. Without it, many of them would be living in poverty. Social Security does much more than provide retirement income for seniors. It also provides lifetime disability insurance protecting those who become seriously injured or ill. When a worker becomes disabled before reaching retirement age, Social Security is there to help him and his family. And when a worker dies leaving minor children, Social Security provides financial support for those children until they reach adulthood. The revenue from the estate tax would reduce the Social Security shortfall by more than 25 percent, according to the Social Security Administration's chief actuary. It would add years of solvency to the program. That would set the right priority for America. The priorities of this Republican Congress have been wrong for our country. If we are serious about reducing the deficit and strengthening the economy, we must stop lavishing tax breaks on the rich, and start investing in the health and well-being of all families. These families are being squeezed unmercifully between stagnant wages and ever- increasing costs for the basic necessities of life. The cost of health insurance is up 56 percent in the last 5 years. Gasoline is up 75 percent. College tuition is up 46 percent. Housing is up 57 percent. The list goes on and on, up and up--and paychecks are buying less each year. The dollars that Republicans now want to spend on the ultimate tax break for the rich--allowing the heirs of multimillionaires to inherit their enormous wealth tax free--are dollars that should be used to help all Americans. The American people deserve better; and in November they will insist on a new Congress that truly shares their values and cares about their needs.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, today is National Hunger Awareness Day, and it is an opportunity for all of us to pledge a greater effort to deal more effectively with this festering problem that shames our Nation and has become even more serious in recent years. Surely we can all do more to care for neighbors and fellow citizens who fall on hard times. The number of Americans living in hunger or on the brink of hunger now totals 38 million--5 million more than when President Bush took office. That total includes almost 14 million children, 972,000 more since 2000. America's Second Harvest, the nation's largest network of emergency food providers, recently conducted a series of interviews with its clients, and the report is astounding. Its emergency food providers serve 4.5 million different people a week--and 24 to 27 million people a year. Over 36 percent of its clients are children under 18 years old, and 10 percent are elderly. Another 36 percent of its clients live in households with at least one employed adult. These statistics are shameful. Our Nation's neediest individuals should not be forced to choose between paying for food and paying the rent or paying for medicine. In Massachusetts, the Greater Boston Food Bank serves over 320,000 people a year--34 percent of them are under 18. All of us in the Commonwealth are grateful that we have food providers like the Greater Boston Food Bank, but they should not have to wage the battle alone. Government can't stand idle in the face of this great tragedy. We have programs in place to fight hunger, but they continue to be underfunded and underused. Day in and day out, the needs of millions of Americans living in hunger are ignored, and too often their voices have been silenced. Their battle is a constant ongoing struggle. It undermines their productivity, their earning power, and their health. It keeps their children from concentrating and learning in school. We all need to do more to combat it. Government, corporations, communities, and citizens must work together to develop better policies and faster responses. In 1996, the Clinton administration pledged to begin an effort to cut hunger in half in the United States by 2010, and the strong economy enabled us to make significant progress toward that goal. Hunger decreased steadily through 2000. We now have 4 years left to fulfill that commitment. The fastest, most direct way to reduce hunger in the Nation is to improve and expand current Federal nutrition programs. Sadly, the current administration proposes to change proven and effective programs such as food stamps and the Special Supplemental Nutrition Program for Women, Infants, and Children. The administration also proposes to eliminate the Commodity Supplemental Food Program, which provides modest food packages to low-income seniors and to mothers with children up to age 6. It is time to do more for the most vulnerable in our society. National Hunger Awareness Day is our chance to pledge to eradicate hunger in America--and to mean it when we say it.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I ask unanimous consent that floor privileges be granted to two legal fellows on my staff, Jon Donenberg and Norah Bringer, for the remainder of the Senate session.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it's no surprise that the American people are frustrated with the Republican Senate these days. They deserve and want action on the enormous challenges we face as a Nation--the endless and costly war in Iraq, the many dangers to our national security, skyrocketing gas prices, soaring health care costs, the upcoming hurricane season. How we can have safer schools and better care for our children, and so many other urgent issues. But instead of dealing with these real priorities, the Senate Republican leadership is asking us to spend time writing bigotry into the Constitution. Why aren't we taking up the defense authorization bill, which is so vital to our national security? It provides the authorization for the salaries for our troops in the field, including a 2.2 percent pay raise. It provides urgently needed equipment for our troops to carry out their missions in Humvees with safer body armor. It authorizes the food and supplies our troops need in Iraq and Afghanistan. It contains funds to care for those who are injured or wounded, or who may be suffering from posttraumatic stress disorder when they come home. But the Republican leadership of the Senate has told us that supporting our troops has to wait. Let's be clear about what this debate is really about. It is a blatant effort to deny some members of our society the right to receive the same benefits and protections that married couples now have. Like this Senate's intrusion into the Terry Schiavo case, it is a cynical attempt to score political points by overriding state courts and intruding into individuals' private lives and most personal decisions. It's the politics of prejudice and division at its worst. Make no mistake--a vote in support of this amendment has nothing to do with the ``protection of marriage.'' A vote for it is a vote against civil unions, against domestic partnerships, and against all other efforts by States to treat gays and lesbians fairly under the law. It's a vote to impose discrimination on all 50 States, and to deny them their right to write and interpret their own State constitutions and State laws. It's a vote to deny States the right to define what marriage equality means. Marriage is a solemn commitment to plan a future together, to share in life's celebrations, to be there as a source of comfort to ease life's burdens and pains. This impacts real families with real-life struggles. When the citizens of a State have decided to recognize those families--through their State constitution or State laws--the Senate has no business undermining their personal, private decisions. Some even claim that our recent action in Massachusetts is a threat to the rest of the Nation. Over 8,000 couples have celebrated their commitment to each other since our Supreme Judicial Court ruled that the State constitution requires marriage equality. In ruling to allow same-sex marriage, our State's Supreme Judicial Court was interpreting the Massachusetts constitution, not the U.S. Constitution. The court ruled that our State's constitution forbids the creation of second-class citizens. It concluded that the State could not deny the protections, benefits and obligations of civil marriage to two individuals--regardless of gender--who wish to marry. Far from being a right created--as our opponents like to say--by activist judges, the right of all our citizens to have equal treatment under Massachusetts State laws was granted and approved by the people of Massachusetts when they voted on and adopted our State constitution. The people said that our State's constitution forbids the creation of second-class citizens, and our courts affirmed equality for all. In Massachusetts, civil marriage brings all the benefits of a marriage license--and equal status under the marriage laws, which touch upon nearly every aspect of life and death. In addition to all the intangible benefits of marriage, a civil marriage is a contract--it grants valuable property rights--protection against creditors and the automatic entitlement to the property of their spouse's estate when he or she dies. Under State laws in Massachusetts and many other States, marriage confers property rights. And the specific property rights vary from State to State. Some States have a community property regime. Others, like Massachusetts, do not. But it has always been a bedrock principle of our form of government that the kind of State property rights flowing from a civil marriage contract is a matter of State law, not Federal law. And the laws governing the property rights of a married couple have always varied from State to State. For example, a couple married in Louisiana will have all property owned in that State subject to the community property laws of that State. But if they own property in another State, that property is governed by the laws where the land is owned. Now some of our colleagues want to federalize the rights flowing from civil marriage and overrule individual State laws. How odd that the same people who oppose Federal regulation in almost every other area now want a Federal constitutional amendment to eviscerate State contract and property laws, but only when they grant benefits to same- sex couples. That is discrimination, and it's wrong. In Massachusetts, marriage--and the stability and security it brings to families--is alive and well. Indeed, Massachusetts has the lowest divorce rate in the Nation. We're having plenty of public debate and democratic process. The sky is not falling. Indeed, even the Boston Herald editorial page called this week's Senate debate what it really is ``pandering on a hot-button issue.'' I'm proud that Massachusetts continues to be a leader on marriage equality. Being part of a family is a basic right, and I look forward to the day when every State accepts this basic principle of fairness. Obviously, those who disagree with Massachusetts law have a first amendment right to express their views. But there's no justification for undermining the separation of church and State in our society, or for writing discrimination into the U.S. Constitution. Supporters of the amendment claim that religious freedom is somehow under attack. It is--but the attack comes from this Federal marriage amendment--not from what's happening in the States. This amendment is an Anti-Marriage Amendment. It tells churches they cannot recognize a same-sex marriage, even though many churches are now doing so. No church in Massachusetts is required to recognize any civil marriage. Indeed, my own Catholic Church does not recognize most postdivorce second marriages between a man and a woman, and that's their legal prerogative. By the same token, they are not required to recognize same-sex marriages. The law of each church is what determines the religious aspects of a sacramental marriage. But the law of the States is what determines the civil aspects and property rights flowing from a marriage contract. We cannot--and should not--require any religion or any church to accept any marriage as sacramental. That's up to the particular religion. But it is wrong for our civil laws to deny any American the basic right to be part of a family, to have loved ones with whom to build a secure future and share life's joys and tears, and to be free from the stain of bigotry and discrimination. According to the 2000 Census, same-sex couples live in virtually every county in the country. That's almost 600,000 households. Nearly one-quarter of these couples are raising children. That's an estimated 8 to 10 million children being raised in gay and lesbian partnered homes. As many as 14 million children in America have a gay or lesbian parent. Despite these growing numbers, many here in the Senate want to deprive these men and women--these children--and their families--of the legal protections and benefits associated with marriage. These families stand up to private bigotry and prejudice in their ordinary activities--why would the Federal Government make their lives harder by writing discrimination into the Constitution? It's wrong for Congress to add another burden to these families already struggling to live their lives and take care of each other. The General Accounting Office has identified 1,138 protections and benefits provided by the Federal Government on the basis of marital status. Many of these are laws relating to family and medical leave, social security benefits, and tax benefits. Gay and lesbian couples deserve the same rights as married couples, including the right to be treated fairly by the tax laws, to share insurance coverage, to visit loved ones in the hospital, and to have health benefits, family leave benefits, and the many other benefits that automatically flow from marriage. Supporters of the Federal marriage amendment claim the need to stop activist judges. Our colleagues should recall the words of another activist court: The freedom to marry has long been recognized as one of the most vital personal property rights essential to the orderly pursuit of happiness. The activist judges stating this fundamental belief were part of the Supreme Court's 1967 decision in the landmark case Loving v. Virginia, which held that marriage is a basic civil right, and that freedom to marry a person of another race may not be restricted by racial discrimination. Now, nearly 40 years later, I urge the Senate not to turn back the clock on this progress, or start writing discrimination into our country's most cherished document. The framers never wanted it to be used for short-term political games--that's why it is so difficult to amend. As Chief Justice John Marshall said, the Constitution is ``intended to endure for ages to come.'' Two years ago, we defeated a disgraceful attempt to force this right wing agenda into the Constitution and we're prepared to do so again. There is too much at stake to let the politics of bigotry prevail. I urge the Senate to reject this so-called Federal marriage amendment, and get back immediately to the real business of the Nation. Save the pandering for rightwing supporters on the campaign trail.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the Court of Appeals for the DC Circuit is the second-highest court in the Nation. As such, its judges bear a unique responsibility. By law, the DC Circuit has exclusive jurisdiction over many issues that other appellate courts cannot deal with. Only the judges of the DC Circuit can hear appeals under many critical laws that affect our economy, our environment, and our election system. Because the Supreme Court only hears a limited number of cases, the judges of the DC Circuit often have the final word on laws that affect the lives of millions of Americans, at home and in the workplace. Unlike most of the members of the DC Circuit. Brett Kavanaugh is not a judge, an experienced litigator, or a legal scholar. Far from it. Mr. Kavanaugh is a political operative, a man whose ambition has placed him at the center of some of the most politically divisive events in recent memory. He is not qualified for this position. If his nomination is approved, I can say with confidence that Mr. Kavanaugh would be the youngest, least experienced and most partisan appointee to the court in decades. Mr. Kavanaugh blatantly lacks the broad legal experience that is the hallmark of Federal judges--particularly those at the highest levels. He has never tried a case to verdict or to judgment. In fact, Mr. Kavanaugh has only practiced law for 10 years. Even counting his time as a law clerk, he still has only half of the average legal experience of nominees to the DC Circuit. To put this in context, Mr. Kavanaugh would be the least experienced member of the DC Circuit in almost a quarter century. His lack of experience is underscored by his responses to questions from Judiciary Committee members. When he was asked to name his 10 most significant cases, Mr. Kavanaugh could only cite five cases for which he actually appeared in court, and only two cases in which he was lead counsel. He even cited two cases for which he merely wrote a friend-of- the-court brief for someone who was not a party to the lawsuit. I am not alone in my judgment that Mr. Kavanaugh is not qualified for this position. Aside from my seven colleagues on the Judiciary Committee who voted against his appointment, organizations from around the country are united in their opposition to his nomination. The AFL- CIO, the Leadership Conference on Civil Rights, the NAACP, the National Urban League, the United Auto Workers. The list reads like a who's who of citizen representatives. Most troubling, however, is the lukewarm evaluation of the American Bar Association, which has now conducted three separate evaluations of Mr. Kavanaugh. On the latest and perhaps closest evaluation, the ABA took the unusual step of downgrading its rating of Mr. Kavanaugh. Today, a majority of that committee does not believe Brett Kavanaugh can meet their highest standard for Federal nominees. Why did the ABA downgrade its rating? It did so after confidential interviews with judges and lawyers familiar with his work, when numerous questions were raised about Mr. Kavanaugh's ability as an attorney and potential appellate judge. A judge who heard Mr. Kavanaugh's oral arguments found that his presentation was ``less than adequate,'' and that he demonstrated skills ``on the level of an associate''--a young lawyer at a law firm. Lawyers familiar with his work raised additional questions about his impartiality and partisanship. One attorney specifically questioned whether Mr. Kavanaugh was capable of being ``balanced and fair should he assume a Federal judgeship.'' But Mr. Kavanaugh's lack of qualifications goes beyond years of experience or individual interviews. More important, Mr. Kavanaugh is almost completely unfamiliar with the substantive issues of law that consistently arise in the DC Circuit. These aren't arcane concerns. The DC Circuit has a key role in upholding the rights of American workers. That court decides far more appeals than any other circuit of decisions by the National Labor Relations Board on unfair labor practices. Usually, these cases are filed by employers across the country attempting to overturn unfair labor practice findings against them by the Board. Recently, almost one in three such appeals have been heard by the DC Circuit. During our hearings, I asked Mr. Kavanaugh whether he had any experience handling labor law matters. He couldn't provide a single example of work in this area--not one. Instead, he made vague reference to his work as a law clerk and his brief time in the Justice Department. The DC Circuit is also important to anyone who breathes our air or drinks our water. It is the only Federal appellate court that can hear appeals on rules to protect the environment under the Clean Air Act and the Safe Drinking Water Act. It is the only Federal court that can grant a remedy when the executive branch fails to follow congressional mandates to protect the environment under these laws. Nothing in Mr. Kavanaugh's record suggests that he would be willing to keep the executive branch in compliance with the law on these matters. More generally, nothing in his record suggests that he would be able to avoid the partisanship and politics that have marked his brief career. In fact, partisan politics is the only area in which Mr. Kavanaugh's qualifications cannot be questioned. He has been deeply involved in some of the most bitterly divisive political events in the last decade--and always on the same side. At the Office of the Independent Counsel, Mr. Kavanaugh authored the infamous Starr Report, wrote the articles of impeachment against President Clinton, and investigated the tragic suicide of Vince Foster. As an Associate White House Counsel, Mr. Kavanaugh worked to support the nomination and confirmation of Jay Bybee, the author of the notorious--but then still secret--torture memo. He also was personally responsible for drafting the executive order that made presidential records less accessible to the public and the press. This was order was so restrictive that one observer said it would ``make Nixon jealous in his grave.'' We gave Mr. Kavanaugh an opportunity to prove that he was independent and impartial in spite of his partisan past. I personally noted that this was my chief concern with his nomination, and I know that my colleagues did the same. Mr. Kavanaugh refused to specify the issues and policies on which he would recuse himself--in spite of the fact that he was at the center of a number of executive policy directives in recent years. His answers to our questions resembled political talking points more than they did the answers we would expect from a nominee to such a prominent lifetime position in the Nation's Judiciary. He has shown nothing to suggest that he will stand up to the President when his duties require it. Mr. Kavanaugh is not qualified for this job. Even worse, his nomination is a harsh reminder of the partisan and ideological pressures that have marked many recent judicial nominations. His nomination seems little more than a crass administration attempt to politicize the courts and provide a solid vote in favor of even the most extreme political tactics of the administration. The Federal courts need experienced, independent judges who can rise above their partisan beliefs and enforce the rights and guarantees of our Constitution and the rule of law. Mr. Kavnaugh is not such a nominee, and I urge my colleagues to oppose his nomination.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I intend to vote against General Hayden. I respect General Hayden's lifetime of public service, and his testimony included some encouraging signs that he learned important lessons from the way intelligence was used to defend the Iraq war. However, I cannot support General Hayden's nomination in light of the very serious questions about the scope and legality of the NSA domestic surveillance programs that he helped design, implement, and defend. Until there is a full accounting of the surveillance program, I cannot in good conscience support a promotion for its chief architect. We all want the administration to have strong leaders and the necessary means to gather the best possible intelligence for our foreign policy and national security, especially the war on terrorism. Those critical goals require a Director of Central Intelligence who will work with Congress--not against us--in our efforts to prevent terrorism and improve our national security laws. We must protect the country while preserving our constitutional freedoms.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I was here in 1986. I understand the 1986 act very well. I listened to my friend from Texas describe the provisions we have for earned legalization, saying effectively it is the same as offered in 1986. Of course, it is not because in 1986 that was a real amnesty. We have had that debate for 10 days. We can have it again today. What we are talking about in this program is recognizing the people who have violated the law are able to work and earn their way into a position where eventually they can apply for citizenship if they pay a penalty, if they demonstrate they have paid their back taxes, have had no trouble with the law, and they are prepared to learn English. After the last person in line legitimately is able to gain entry into the United States, they can adjust their status. The 1986 failure is entirely different than what we have now. We had a proliferation of fraudulent documents. That is the history. We understand that. We had Republican and Democrat administrations that refused to enforce the 1986 laws. That is history. We can complain about 1986, but 1986 is not 2006. What we did in 1986 is not 2006. We can talk about how some of the terrorists got into the United States. Most of the September 11 terrorists got into the United States through Saudi Arabia. The reason they got in is because the CIA didn't talk to the FBI or the Immigration Service. The majority of those who came here and were part of September 11 were known by the CIA, and they never shared that information with the Immigration Service or the FBI. They did not need fraudulent documents. We needed the FBI and CIA to work together. Having said that, hopefully we have a better relationship between the Central Intelligence Agency and the FBI now than we had then. However, that is the past. We have to learn from the past. I listened to the Senator say what we need is tamper-proof documents. If we do not have tamper-proof documents, this system is not going to work. Tamper-proof documents is what we are committed to, to try and deal with the fraud. People can come to the Senate and talk about the fraud in our immigration system, which is true. What we are trying to do with this legislation is remedy that. I don't know what the alternative is from the Senator from Texas. I know what his concerns are, but I don't know what his remedy is. We are talking about tamper-proof documents. We are talking about tamper-proof documents for guest workers. We are talking about tamper-proof documents so laws can be enforced against employers who are going to fire undocumented individuals who do not have the tamper-proof documents. We are talking about tamper-proof documents for those individuals who want to play by the rules and go by earned legalization. The language in this legislation is very clear. That is, if you lie on your application, you lose all your rights, and you are subject to deportation. However, if you commit an innocent mistake on your application, that can be considered and not be used as a vehicle for deportation. That is the principal difference. I don't think that is unreasonable. The Senator believes if we do not change what we have in our law to what he wants, if we accept his amendment, people will not be discouraged from coming forth. Of course they will be discouraged from coming forth. People come forth and they, in good faith, make an application. They find out that application somehow is defective. Whether it is willful, knowing, or they lied about it, they are subject to deportation. If it is an innocent mistake, we don't want them deported. If this is subject to the Cornyn amendment, why are they going to come forward and share information if they know if they share information confidentially they will be deported? We are undermining an essential aspect of this legislation--bringing people out of the shadows. Of the millions of people who are here, we have people who have come here because they want to work hard, they want to provide for their families, they want to be part of the American dream. They are prepared to learn English. They are prepared to pay their taxes. They are prepared to pay their penalty. They want a sense of pride. They practice their faith. They want to be able to come in and be able to adjust their status so they can be legalized to have the respect of their children, their family, and their community. That is what the great majority of the people want. That is what we are trying to do. If we follow the Cornyn amendment, people come in good faith, someone fly-specs that particular application and says: No, it is a question whether this is criminal intent--boom, you are gone; you are deported. We will have a very difficult time. We have crafted this legislation so those who are going to lie on that application, those who are involved in criminal activity are subject to deportation--no ifs, ands or buts. But we also understand in this complicated world there will be innocent mistakes made, and we do not want to subject those people to deportation. That is not what this is about. It seems to me honest people who submit a good-faith application to earn legalization should not be citing their own deportation orders; otherwise, why should anyone apply? That effectively is what the Cornyn amendment does. It effectively undermines the whole purpose and scope and thrust of the legislation. I withhold the time.

Mr. KENNEDY. Mr. President, first of all, under title III, there are only 4 documents, not 20 documents. Title III, 4 documents: the passports, REAL ID, the green cards, and employment authorization documents. They are basically biometric documents, 4 documents in title III, not 20. Second, the Senator from Texas is describing the conditions we had in 1986, not in this legislation. There is the encouragement of cooperation with the Department of Homeland Security and the FBI when we have document fraud or when there is fraud. We make that extremely clear. That was not clear, as the Senator appropriately pointed out, in 1986. There was not that kind of cooperation. There was some but not nearly what there should be. We are all for that. The confidentiality clause in the underlying bill does not protect the criminals. On the contrary, the bill requires DHS and State to disclose all information furnished by legalization applicants to law enforcement entities conducting criminal activity and national security investigations. We learned from what we called IRKA, the 1986 act, and we have that in the legislation. On page 38 of the legislation: Other documents.--Not later than October 26, 2007, every document, other than an interim document, issued by the Secretary of Homeland Security, which may be used as evidence of an alien's status as an immigrant, nonimmigrant, parolee, asylee, or refugee, shall be machine-readable and tamper- resistant, and shall incorporate a biometric identifier to allow the Secretary of Homeland Security to verify electronically the identity and status of the alien. We have spent time on it. I am a strong believer that is what we need. This legislation is not going to work unless we have an effective system, unique, special. Other countries have this; we ought to be able to do it, many of the countries in the Far East, also Brazil, South America, and other countries. We can and should do it. We will do it. We have developed the language to do it. We are for prime documents that have been accepted and recommended. We worked with the Department of Homeland Security on what documents they are for. We have insisted on cooperation between the FBI, the Department of Homeland Security and the Justice Department in any area of criminality. We are all for at least what I understand the Senator has said. We are glad to clarify that. We believe we have attended to that. There is no question in 1986 that was not the case. We were rife with fraudulent documents, failure to enforce the law against employers, separation between the INS at that time and the FBI. We did not have the Department of Homeland Security. All of that we have learned from. We have addressed the principal issues and questions the good Senator has outlined. I withhold the remainder of my time.

Mr. KENNEDY. Mr. President, I will take just a few minutes.

Mr. KENNEDY. Mr. President, just along those lines, I think our colleagues ought to be alerted we can anticipate a vote fairly shortly. Mr. President, just in response to my friend from Texas, he is familiar with the fact that we passed the Border Security Act in 2002. The idea was to understand everybody coming into this country, to know where they were, and when they were leaving. We have not completed that kind of circle, but we have made dramatic progress. As of now, every green card, every work permit, every visa is machine readable and biometric--every single one that we have working today. So this is a dramatic shift in terms of dealing with the issue of fraud, which has been talked about here. Now, in order for immigration reform--we have talked with security officials who have all told us it is in our interest, in our national security interest, to bring people out of the shadows. They have all indicated that. We have so many individuals here whose names we do not know. We do not know their locations. They are living in a shadowy world that can more often than not--or at least sometimes can--be connected with crime. And many of these people, obviously, want a different life and a different future. To be able to make that progress and isolate those individuals who pose a threat to us, our security officials who came before our committee said that a real confidentiality clause is necessary-- absolutely necessary--for the earned legalization to succeed, in order to have immigration reform. Current undocumented immigrants will have to be persuaded it is safe to come forward to an agency they have come to mistrust, and they will need to feel comfortable the information they provide on their applications about their histories, their employers, and their families will not be used against them or their loved ones. Churches, community agencies, and attorneys who will be helping people apply will also need confidence they are not exposing their clients to immigration enforcement by encouraging them to apply for legalization. I believe the change in the Cornyn amendment would make the confidentiality clause worthless. Hundreds of thousands of immigrants who qualify for earned legalization will likely be dissuaded from participating, undermining the effectiveness of our entire reform effort. And hundreds of thousands of immigrants would be encouraged to remain in the shadows rather than risk coming forward under these conditions. The confidentiality clause in the underlying bill does not protect criminals. On the contrary, the bill requires DHS and State to disclose all information--it is at the bottom of page 362 of the bill--unlike the provisions the Senator referred to in the Violence Against Women provisions. The penalties for the disclosure of information, and the exceptions: The Attorney General may provide, in the discretion of the Attorney General, the disclosure of information to law enforcement officials to be used solely for law enforcement purposes. Our legislation says: The Secretary of Homeland Security and the Secretary of State shall provide the information furnished pursuant to an application filed under [the] paragraph . . . and any other information derived from such furnished information, to a duly recognized law enforcement entity in connection with a criminal investigation or prosecution or a national security investigation or prosecution. . . . Mr. President, I do not think you can do better than that. We are even stronger on this issue. I have mentioned the other reasons for it. I agree with the Senator from Texas. We have to put in place a very effective biometric system. We have a real downpayment for it. We want to strengthen that. But we are making very dramatic and significant progress, and we will continue to do so. We have indicated, in this most strenuous way, why we have drafted these provisions the way they have been drafted. We think they best serve the interests of the innocent and the prosecution of the guilty.

Mr. KENNEDY. How much time do I have?

Mr. KENNEDY. Mr. President, I am glad the Senator from Texas invited our colleagues to listen carefully. I hope they will listen carefully to what I am reading from the underlying bill. No matter how many times the Senator from Texas says he doesn't believe there will be reporting, prosecution, and cooperation between the agencies, I suggest that any of our colleagues who are in question read page 362 of the bill: Required disclosures--The Secretary of Homeland Security and the Secretary of State shall-- Not may, shall-- provide the information furnished to an application filed under the paragraph (1) or (2) of subsection (a), and any other information derived from such furnished information, to a duly recognized law enforcement entity in connection with a criminal investigation or prosecution or a national security investigation or prosecution, in each instance about an individual suspect or group of suspects, when such information is requested in writing by an entity. I can't make it any clearer than that, with all respect. That was not the way it was done previously. That is the way it is now. It has been mentioned, let's have the Violence Against Women Act legislation. I have that in my hand. For our colleagues to understand, it says: The Attorney General may provide, in the discretion of the Attorney General, for the disclosure of information to law enforcement officials. We say ``shall provide.'' The Violence Against Women Act says ``may provide.'' We have a much stronger provision. We are not defending actions of the past. We are talking about learning from the past. We have. Tamper-proof documents, we are strongly committed to that, and fair and effective enforcement at the employer level and, when we discover criminal activity--lying, deceit-- on these applications, prosecution. But let's not wrap the innocent into that package as well.

Mr. KENNEDY. Mr. President, I will make a brief comment. On page 119, immigration and visa fraud, it says: Any person who knowingly--completes, mails, prepares, presents, signs, or submits any document knowing it to contain any materially false statement or representation [is subject to prosecution]. It continues on page 120: . . . transfers or furnishes an immigration document to a person without lawful authority for use . . . Any lawyer or social service agency, advocacy group, or notary, or any other agent who assists an immigrant in making a fraudulent claim is subject to criminal prosecution and also unprotected by confidentiality language.

Mr. KENNEDY. Mr. President, I am prepared to yield back our time. I think all time has expired.