Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I understand there is 12 minutes remaining on our side in morning business and then we will go to the bill itself.

Mr. KENNEDY. Mr. President, I yield 12 minutes, and then I ask for recognition because I intend to speak on the bill.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I understand there is no time limit on speeches. Am I correct?

Mr. KENNEDY. Many Senators on both sides of the aisle find the concept of a trust fund to compensate the victims of asbestos-related diseases appealing. I have consistently said that I would support a properly designed and adequately funded trust fund bill that would fairly compensate all the victims of asbestos-induced disease in a timely way. The problem is that S. 852 does not meet that standard. It is not properly designed and it is not adequately funded. Many seriously ill victims of asbestos disease are completely excluded from compensation under the fund. And the legislation does not even provide adequate revenue to ensure that all the victims who are eligible for compensation under the terms of the trust fund will actually receive what the legislation promises them. These are fundamental flaws that cannot be corrected by a few last minute amendments. They go to the heart of the bill. The problem is that powerful corporate interests responsible for the asbestos epidemic have fought throughout this process to escape full accountability for the harm they have inflicted. As a result, the focus has shifted from what these companies should pay victims to what they are willing to pay them. That is preventing the Senate from enacting trust fund legislation that will truly help the workers who have been seriously injured by this industrial plague. This legislation was constructed backwards. The first decision made was that the size of the trust fund could not exceed $140 billion over 30 years. Why? Because that was all the corporations whose reckless conduct created the asbestos problem were willing to pay. The Asbestos Study Group, the chief lobbyists for this legislation, began this process by promising ``an evergreen fund'' that would provide as much money as necessary over time to fairly compensate the victims of asbestos disease. But they soon reneged on that commitment. Instead, these companies are now insisting on an absolute cap on their liability--no matter how many victims are suffering from asbestos- induced disease or how serious their illnesses. Asbestos diseases take years, sometimes decades, to develop after the exposure to asbestos fibers. Thus, no one can say for sure how many victims there will be. The companies claim that they need financial certainty to plan for the future. What about the millions of victims of asbestos exposure who live every day under the cloud of asbestos disease? What about the ability of these workers and their families to plan for their future? Each year, more than 10,000 of them die from lung cancer and other diseases caused by asbestos. Each year, hundreds of thousands of them suffer from lung conditions which make breathing so difficult that they cannot function at all. Even more become unemployable due to their medical condition. And, because of the long latency period of these diseases, all of them live with fear of a premature death due to asbestos-induced disease. These are the real victims. Aren't they entitled to the certainty of knowing that, should the worst happen, they and their families will be fairly compensated? All S. 852 offers them is an inadequately funded trust fund that most experts believe will be insolvent within a few years. The real crisis which confronts us is not an ``asbestos litigation crisis,'' it is an asbestos-induced disease crisis. All too often, the tragedy these workers and their families are enduring becomes lost in a complex debate about the economic impact of asbestos litigation. We cannot allow that to happen. The litigation did not create these costs. Exposure to asbestos created them. They are the costs of medical care, the lost wages of incapacitated workers, and the cost of providing for the families of workers who died years before their time. Those costs are real. No legislative proposal can make them disappear. All legislation can do is shift those costs from one party to another. Unfortunately, S. 852 would shift more of the financial burden onto the backs of injured workers. That is unacceptable. Senators Specter and Leahy have devoted an enormous amount of time and effort to this asbestos trust fund legislation. They did not set the arbitrary $140 billion ceiling. The Republican leadership made clear that the trust fund could not exceed that amount regardless of the legitimate needs of asbestos victims. The sponsors were left with the unenviable task of deciding which worthy claims to exclude. As a result, the bill before us contains fundamental flaws, which make it both unfair and unworkable. It does not provide a reliable guarantee of just compensation to the enormous number of workers who are suffering from asbestos-induced disease. The argument that there are serious inadequacies in the way asbestos cases are adjudicated today does not mean that any legislation is better than the current system. Our first obligation is to do no harm. We should not be supporting legislation that excludes many seriously ill victims from receiving compensation and that fails to provide a guarantee of adequate funding to make sure that these injured workers covered by the trust fund will actually receive what the bill promises them. This bill will do harm to these asbestos victims. The list of serious flaws in S. 852 is, unfortunately, a long one. I will focus my remarks on several of the most egregious. Experts tell us that the asbestos trust created by this legislation is seriously underfunded. The funding plan in this bill relies on very substantial borrowing in the early years as the only way to pay the flood of claims. The result will be huge debt service costs over the life of the trust that could reduce the $140 billion intended to pay claims by as much as 40 percent. The amount remaining would be far too little to pay the claims of all of those who are entitled to compensation under the terms of the bill. In addition, there is a strong constitutional argument that the existing bankruptcy trusts cannot be forced to turn over all their assets, which will place $7.6 billion of the projected funding in jeopardy. Many companies are also likely to challenge their obligation to finance the asbestos trust. It is not at all clear how much money will actually be available to pay eligible victims what the legislation promises they will receive. There is likely to be a serious shortfall in the early years, when nearly 300,000 pending cases will be transferred to the trust for payment. Studies show the trust will not have the resources to pay those claims in a timely manner. Payments to critically ill people may be delayed for years. One way to reduce the enormous financial burden on the fund in the early years would be to leave many of those cases in the tort system, especially cases which were close to resolution. That would be fair to the parties in those cases and it would greatly improve the financial viability of the fund. Unfortunately, that proposal has been repeatedly rejected by the sponsors of the bill. As a result, there will be a serious mismatch between the number of claims the trust fund will face when its doors open and the payments coming into the fund. That will force major borrowing in the first 5 years. The debt service resulting from that borrowing will financially cripple the trust. In its August report, CBO recognizes the seriousness of this debt- service problem, explaining: Because expenses would exceed revenues in many of the early years of the fund's operations, the Administrator would need to borrow funds to make up the shortfall. The interest cost of this borrowing would add significantly to the long-term costs faced by the fund and contributes to the possibility that the fund might become insolvent. In a response to inquiries from Judiciary Committee members last week, CBO issued an even more dire warning about the likelihood of insolvency: There is a significant likelihood that the fund's revenues would fall short of the amount needed to pay valid claims, as well as debt-service and administrative costs. There is also some likelihood that the fund's revenues would be sufficient to meet those needs. The final outcome cannot be predicted with great certainty. Without a substantial increase in the resources available to the fund, there is no way to guarantee that the fund will not either revert to the court system or require additional funding. That statement should trouble every Senator on both sides of the aisle. There is ``a significant likelihood that the fund's revenues would fall short.'' While we may disagree on other issues regarding compensation for asbestos victims, each of us knows that it would be disastrous--for victims and businesses alike--to create a trust fund that cannot meet its financial commitment to victims and is destined for insolvency. None of us want to see that result. We cannot in good conscience ignore the warnings from the Congressional Budget Office and from other experts. In addition to the concerns CBO has identified, there are other major problems with S. 852 related to the projections of pending and future claims that could push the trust fund even further out of balance. For example, there has been a significant increase in the number of mesothelioma cases in recent years. The only known cause of mesothelioma is asbestos exposure. This new information suggests that the CBO cost estimate may understate the cost of the mesothelioma claims that the trust fund will incur by more than $15 billion. This is by no means the only instance where there is strong evidence to suggest that the number of eligible claimants will substantially exceed CBO estimates. If S. 852 is enacted, the U.S. Government will be making a commitment to compensate hundreds of thousands of seriously ill asbestos victims, but will not have ensured that adequate dollars are available to honor its commitment. That will precipitate a genuine asbestos crisis, and this Congress will bear the responsibility for it. Since the trust fund will be borrowing extensively from the U.S. Treasury in its first few years of operation; if it does become insolvent, there will be a direct impact on American taxpayers. The legislation before us would close the courthouse doors to asbestos victims on the day it passes, long before the trust fund will be able to pay their claims. Their cases will be stayed immediately. Seriously ill workers will be forced into a legal limbo for up to 2 years. Their need for compensation to cover medical expenses and basic family necessities will remain, but they will have nowhere to turn for relief. Under the legislation, even exigent health claims currently pending in the courts will be automatically stayed for 9 months as of the date of enactment. An exigent health claim is one in which the victim has been diagnosed ``as being terminally ill from an asbestos-related illness and having a life expectancy of less than one year.'' By definition, these cases all involve people who have less than a year to live due to mesothelioma or some other disease caused by asbestos exposure. Their cases would all be stayed for 9 months. Nine months is an eternity for someone with less than a year to live. Many of them will die without receiving either their day in court or compensation from the trust fund. The stay language is written so broadly that it would even stop all forward movement of a case in the court system. A trial about to begin would be halted. An appellate ruling about to be issued would be barred. Even the deposition of a dying witness could not be taken to preserve his testimony. The stay would deprive victims of their last chance at justice. I cannot believe that the authors of this bill intended such a harsh result, but that is what the legislation does. The bill does contain language allowing an ``offer of judgment'' to be made during the period of the stay in the hope of producing a settlement. However, this provision is unlikely to resolve many cases because it requires the agreement of the defendants. There is no incentive for defendants to agree to a settlement when the case has been stayed. Those who have tried cases know that it is only the imminence of judicial action which produces a settlement in most cases. Delay is the defendant's best ally; and under this bill, the case is at least delayed for 9 months and may never be allowed to resume if the fund becomes operational. If, however, these exigent cases were not stayed, and judicial proceedings could continue, there would be far more likelihood of cases settling under the offer of judgment process. I strongly believe that, at a minimum, all exigent cases should be exempted from the automatic stay in the legislation. Victims with less than a year to live certainly should be allowed to continue their cases in court uninterrupted until the trust fund became operational. Their ability to recover compensation in the court should not be halted until the trust fund is open for business and they are able to receive compensation from that fund. It is grossly unfair to leave these dying victims in a legal limbo. For them, the old adage is especially true-- justice delayed is justice denied. Under the legislation, defendants would receive a credit against what they must contribute to the trust fund for whatever payments they make to these dying victims; so they would not be ``paying twice,'' as some have claimed. Allowing the exigent cases to go forward in the courts without interruption is a matter of simple fairness. Staying the cases of victims who have less than a year to live is bureaucratic insensitivity at its worst. Most of these victims will not live to see the doors of the trust fund open. We should not deprive them of their last chance--their only chance-- to receive some measure of justice before asbestos-induced disease silences them. They should be allowed to receive compensation in their final months to ease their suffering. They should be allowed to die knowing that their families are financially provided for. S. 852 in its current form takes that last chance away from them. I intend to offer an amendment to allow these severely ill victims to have their day in court. The way the legislation is written, victims will lose out at the back end of the process as well, should the trust fund run out of money after several years of operation. If the trust fund does become insolvent, a very real possibility, workers will not have an automatic right to immediately return to the court system. The process outlined in the current bill could take years. Workers could end up trapped in the trust with reduced benefits and long delays in receiving their payments. There needs to be a clear, objective trigger--inability of the trust to pay a certain percentage of claims within a set period of time--that will automatically allow victims to pursue their claims in court if the trust runs out of money. The Judiciary Committee's 2003 legislation contained such a provision, but this bill does not. We cannot allow seriously injured workers with valid claims who are not paid in a timely manner by the trust to be denied their day in court. That would be a shameful injustice. The asbestos trust is being presented as an alternative source of compensation for victims suffering from asbestos-induced disease. If that alternative runs out of money and can no longer compensate those victims in a full and timely manner, their right to seek compensation through the judicial system should be immediately restored with no strings attached. No principle is more basic. Yet this bill violates that principle. I am particularly upset by the way lung cancer victims are treated in this bill. Under the medical criteria adopted by the Judiciary Committee overwhelmingly 2 years ago, all lung cancer victims who had at least 15 years of weighted exposure to asbestos were eligible to receive compensation from the fund. However, that was changed in S. 852. Under this bill, lung cancer victims who have had very substantial exposure to asbestos over long periods of time are denied any compensation unless they can show asbestos scarring on their lungs. The committee heard expert medical testimony that prolonged asbestos exposure dramatically increases the probability that a person will get lung cancer even if they do not have scarring on their lungs. Deleting this category will deny compensation to more than 40,000 victims suffering with asbestos-related lung cancers. Under the legislation as now drafted, these victims are losing their right to go to court, but receiving nothing from the fund. How can any of us support such an unconscionable provision? Since we began considering asbestos legislation, no aspect has concerned me more than the treatment of lung cancer victims. My top priority has been to make sure that these severely ill workers receive just and fair compensation. And I have not been alone. A number of other Members have spoken out about the importance of adequately providing for lung cancer victims who have been exposed to substantial amounts of asbestos over long periods of time. Now we find that these victims, many of whom will have their lives cut short because of asbestos-induced disease, will not receive one penny in compensation from the trust fund. They are losing their right to go to court, but being denied any right to compensation under the fund. They are, in essence, being told to suffer in a legally imposed silence with no recourse whatsoever. One of the arguments we hear most frequently in favor of creating an asbestos trust fund is that in the current system, too much money goes to people who are not really sick and too little goes to those who are seriously ill. Well, lung cancer victims who have years of exposure to asbestos are the ones who are seriously ill. They are the ones this legislation is supposed to be helping. Yet they are being completely excluded. The committee heard extensive testimony from distinguished medical experts--Dr. Laura Welsh and Dr. Philip Landrigan--that prolonged exposure to asbestos can cause lung cancer even if the victim does not also have markers of nonmalignant asbestos disease. They cited numerous medical authorities supporting their position. They even described treating lung cancer victims whose disease was clearly caused by asbestos but who had neither pleural thickening or asbestosis. In a situation where people are undeniably severely ill and undeniably had 15 or more years of weighted exposure to asbestos, it is wrong to completely exclude them from compensation under the trust fund. Some of the proponents of S. 852 have attempted to justify excluding them by claiming that smoking probably caused their lung cancers. But, the evidence refutes this contention. First, even those lung cancer victims with 15 or more weighted years of exposure to asbestos who had never smoked were removed from eligibility for compensation under the trust fund. So this is about more than just the relationship between asbestos and smoking. Second, regarding the smoking issue, Dr. Landrigan testified that smokers who have substantial exposure to asbestos have 55 times the background risk of developing lung cancer, while smokers who were not exposed to asbestos have 10 times the background risk of developing lung cancer. Clearly, the asbestos exposure makes a huge difference. There is a powerful synergistic effect between asbestos and tobacco in the causation of lung cancer. Both are substantial contributing factors to the disease. The smoker with substantial asbestos exposure should receive less compensation from the trust fund than the nonsmoker with lung cancer. That principle appears throughout the bill. But smoking is not a reason to exclude the smoker from all compensation. Without prolonged exposure to asbestos, the smoker would have been far less likely to contract lung cancer. It is a gross injustice to completely exclude these severely ill workers. Any person who was exposed to asbestos for 15 or more weighted years and now has lung cancer should be eligible for compensation from the trust fund. It would not be automatic. Their cases would be reviewed individually by a panel of physicians to determine whether asbestos was a ``substantial contributing factor'' to their lung cancer. These 40,000 victims of asbestos should not be arbitrarily excluded from receiving compensation. They were included in the original legislation, it was agreed to by medical experts for both business and labor, and that provision should be restored to the bill. I will be proposing an amendment to rectify this serious injustice. This bill also tampers with the agreed-upon medical criteria carefully negotiated between representatives of business and labor by raising the standard of proof for each disease category. The language in S. 852 requires the workers to prove that asbestos was ``a substantial contributing factor'' to their disease, instead of just ``a contributing factor.'' This is a major increase in the burden workers must overcome to receive compensation. It is significantly higher than most states currently require in a court of law. Rather than having to show that asbestos exposure contributed to their illness, they will now have to address the relative impact of asbestos and other potential factors. This change is a serious step in the wrong direction, raising the bar even higher on injured workers. Another major shortcoming of this legislation is its failure to compensate the residents of areas that have experienced large-scale asbestos contamination. S. 852 simply pretends that this problem does not exist. It fails to compensate the victims of all asbestos-induced diseases, other than mesothelioma, whose exposure was not directly tied to their work. There is very substantial scientific evidence showing that the men, women and children who lived in the vicinity of asbestos- contaminated sites, such mining operations and processing plants, can and do contract asbestos-induced disease. The reason that this legislation needs a special provision to compensate the residents of Libby, MT, is because it does not compensate victims of community contamination generally. The residents of Libby are certainly entitled to compensation, but so are the residents who lived near the many processing plants from Massachusetts to California that received the lethal ore from the Libby mine. The deadly dust from Libby, MT, was spread across America. W.R. Grace shipped almost 10 billion pounds of Libby ore to its processing facilities between the 1960s and the mid 1990s. One of the places it was shipped was to the town of Easthampton, MA, where the operations of an expanding plant spread the asbestos to the surrounding environment, into the air and onto the soil. I intend to discuss this problem in great detail as the debate moves forward. I raise it now as a dramatic example of one of the major injustices caused by the arbitrary exclusion of a large number of asbestos victims from compensation under the trust fund. Nor is the problem of community contamination limited to the sites receiving ore from Libby. Community asbestos contamination can result from many different sources. For example, medical experts believe it may result from exposure to asbestos after the collapse of the World Trade Center. Because of the long latency period, we often do not learn about community asbestos contamination until long after it occurs. Certainly these victims of asbestos are entitled to fair treatment as well. They should not be arbitrarily excluded from compensation as if their suffering is somehow less worthy of recognition than the suffering of other asbestos victims. Yet that is what S. 852 does. This is a bill that shifts more of the financial burden of asbestos- induced disease to injured workers by unfairly and arbitrarily limiting the liability of defendants. It does not establish a fair and reliable system that will compensate all those who are seriously ill due to asbestos. It lacks a dependable funding stream which can ensure that all who are entitled to compensation actually receive full and timely payment. These are very basic shortcomings. We cannot allow what justice requires to be limited by what the wrongdoers are willing to pay. I intend to vote no and I urge my colleagues to do the same. Mr. President, I yield the floor.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I ask unanimous consent that Jesse Wald, a fellow on my staff, be granted the privilege of the floor for the remainder of debate on S. 852, the Fairness in Asbestos Injury Resolution Act of 2005.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I commend my friend and colleague from West Virginia for once again giving focus to this issue of national proportion and importance. I know he recognizes that those extraordinary mine tragedies at Sago struck the heart and soul of all Americans. I had the opportunity to visit with the families from that community. I want him to know that as a member of the HELP Committee, which has some jurisdiction over the measure he introduced, we are going to work closely with him to ensure, to the greatest extent possible, safety for miners. We have seen an example of what has been done in Canada with the 36 or 37 miners who were locked in the bowels of a mine for several days and they walked out because they had oxygen available. We have seen other miners who have been saved in other parts of the world, such as Australia, because they had communications which permitted them to be warned about the dangers of mines. He raises an issue that is of central importance, not just to the people of West Virginia but to all who care about those families who make such a difference not only to their communities but to our country and to our energy needs. I thank him and look forward to working with him.

Mr. KENNEDY. Mr. President, at the present time, the Judiciary Committee is meeting with the Attorney General. I am necessarily absent from that meeting so I can make comments on the asbestos legislation which is now pending. I will return. As I understand it, Senators Specter and Leahy and others involved will have a chance to speak. I ask unanimous consent to speak in morning business for 25 minutes, if there is no objection.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the real crisis which confronts us is not an asbestos litigation crisis, it is an asbestos-induced disease crisis. Asbestos is the most lethal substance ever widely used in the workplace. Between 1940 and 1980, there were 27 million workers in this country who were exposed to asbestos on the job, and nearly 19 million of them had high levels of exposure over long periods of time. That exposure changed many of their lives. Each year, more than 10,000 of them died from lung cancer and other diseases caused by asbestos. Each year hundreds of thousands of them suffer from lung conditions which make breathing so difficult that they cannot function at all. Even more have become unemployable due to their medical condition, and because of the long latency period of these diseases, all of them live with fear of premature death due to asbestos-induced disease. These are the real victims. They deserve to be the first and foremost focus of our concern. As this chart indicates, asbestos mortality will likely peak around 2015, reflecting the heavy exposures in the 1970s. We are going to see this is not an issue that is going to diminish, in terms of the impact on the workers, workers' lives, their families, and their communities, but is actually going to increase in terms of those who are going to be adversely impacted and affected. All too often the tragedy these workers and their families are enduring becomes lost in a complex debate about the economic impact of asbestos litigation. We cannot allow that to happen. The litigation did not create these costs; exposure to asbestos created them. They are the costs of medical care, the lost wages of incapacitated workers, and the cost of providing for the families of workers who died years before their time. Those costs are real. No legislative proposal can make them disappear. All legislation can do is shift those costs from one party to another. Any proposal which would shift more of the financial burden on to the backs of injured workers is unacceptable to me and should be unacceptable to every one of us. I have consistently said throughout the long debate on asbestos legislation that I would support a properly designed and adequately funded trust fund bill. That legislation would have to fairly compensate all the victims of asbestos-induced disease in a timely way. It would put more money into the pockets of these injured workers than the current system of reducing transaction costs. This is not such a bill. Senators Specter and Leahy have devoted an enormous amount of time and effort to this asbestos trust fund legislation. They deserve great credit for their work. But the bill before us contains fundamental flaws which make it both unfair and unworkable. It does not provide a reliable guarantee of just compensation to the enormous number of workers who are suffering from asbestos-induced disease. The argument that there are serious inadequacies in the way asbestos cases are adjudicated today does not mean any legislation is better than the current system. Our first obligation is to do no harm. We should not be supporting legislation that excludes many seriously ill victims from receiving compensation and that fails to provide a guarantee of adequate funding to make sure injured workers will actually receive what the bill promises them. This bill will do harm. The problem is that powerful corporate interests responsible for the asbestos epidemic have fought throughout this process to escape full accountability for the harm they have inflicted and, as a result, the focus has shifted from what these companies should pay victims to what they are willing to pay victims. That is preventing the Senate from enacting trust fund legislation that will truly help the workers who have been seriously injured by this industrial plague. The Senate should not be proceeding to this asbestos bill at this time. Despite all the work Senators Specter and Leahy and other supporters have done, S. 852 is simply not ready for floor consideration. There are too many unanswered questions, and the numbers do not add up. This legislation does not provide sufficient funding to keep the promises of compensation it makes to those asbestos victims it purports to cover. Even if the entire $140 billion the sponsors anticipate raising is paid to the fund, it will not be sufficient to fully compensate the projected number of eligible victims, and it is extremely unlikely the full amount will ever be paid. The formula in the bill is based on highly questionable estimates of the number of companies that would be required to contribute and how much each one would pay, contained in a secret list known only to the asbestos study group, the key lobbyists for the bill. None of the relevant information has ever been made public. There is reason to believe far fewer companies would be contributing than the ASG projects. There will also be serious court challenges brought against the new law that are certain to at least significantly delay statutorily mandated payments and could result in the loss of substantial anticipated revenue. Because of these problems, seriously ill victims are likely to wait for years in legal limbo, unable to proceed in court and unable to obtain compensation from the trust fund if this bill passes. The legislation also fails to permit victims to quickly return to the court system should the trust fund become insolvent. Victims are the losers at both ends. These problems are far too complex to be fixed on the Senate floor with a few last-minute amendments. If they could not be resolved in the 3 years that the many Senators have worked on this bill, they cannot be corrected in a few days. S. 852 is the legislative version of the famous Spruce Goose--an ill-conceived plan too complex and cumbersome to ever get off the ground. As designed, it simply will not work. It is not a reliable vehicle for compensating the victims of asbestos disease. It should be sent back to the drawing board. The list of serious flaws of S. 852 is, unfortunately, a long one. I will focus my remarks on several of the most egregious. First, the financial inadequacy. Experts tell us that the asbestos trust fund created by this legislation is seriously underfunded. The funding plan in this bill relies on very substantial borrowing in the early years as the only way to pay the flood of claims. The result will be a huge debt service cost over the life of the trust that could reduce the $140 billion intended to pay claims by as much as $30 billion or $40 billion. The amount remaining would be far too little to pay claims to cover all those who are entitled to compensation under the terms. In addition, there is a strong constitutional argument that the existing bankruptcy trusts cannot be forced to turnover all their assets, which will place $7.6 billion of the projected funding in jeopardy. Many companies are also likely to challenge their obligation to finance the asbestos trust. It is not at all clear how much will actually be available to pay eligible victims what the legislation promises they will receive. CBO's analysis of S. 852 raises serious concerns about the adequacy of funding. The report states: CBO expects that the value of valid claims likely to be submitted to the fund over the next 50 years could be between $120 and $150 billion, not including possible financing (debt services) costs and administrative expenses. The maximum actual revenues collected under the bill would be around $140 billion, but could be significantly less. Consequently, the fund may have sufficient resources to pay all asbestos claims over the next 50 years, but depending on claim rates, borrowing, and other factors, its resources may be insufficient to pay all such claims. There is likely to be a serious shortfall in the early years, when nearly 300,000 pending cases will be transferred to trust for payment. Studies show the trust will not have the resources to pay those claims in a timely manner. Payments to critically ill people may be delayed for years. One way to reduce the enormous financial burden on the fund in the early years would be to leave many of those cases in the tort system, especially cases which were close to resolution. That would be fair to the parties in those cases and it would greatly improve the financial viability of the fund. Unfortunately, that proposal has been repeatedly rejected by the sponsors of the bill. As a result, there will be a serious mismatch between the number of claims the trust fund will face when its doors open and the payments begin coming into the fund. That will force major borrowing in the first 5 years. The debt service resulting from that borrowing will financially cripple the trust. In its report, CBO recognizes the seriousness of this debt-service problem, explaining: Because expenses would exceed revenues in many of the early years of the fund's operations, the Administrator would need to borrow funds to make up the shortfall. The interest cost of this borrowing would add significantly to the long-term costs faced by the fund and contributes to the possibility that the fund might become insolvent. This is only one of several major financing problems with S. 852 that experts have identified. There are also major questions about the projections of pending and future claims that further cloud the trust fund's financial viability. For example, there has been a significant increase in the number of mesothelioma cases in recent years. The only known cause of mesothelioma is asbestos exposure. This new information suggests that the CBO cost estimate may understate the cost of the mesothelioma claims that the trust fund will incur by more than $15 billion. This is by no means the only instance where there is strong evidence to suggest that the number of eligible claimants will substantially exceed CBO estimates. If S. 852 is enacted, the United States Government will be making a commitment to compensate hundreds of thousands of seriously ill asbestos victims but will not have ensured that adequate dollars are available to honor its commitment. That will precipitate a genuine asbestos crisis, and this Congress will bear the responsibility for it. The legislation before us would close the courthouse doors to asbestos victims on the day it passes, long before the trust fund will be able to pay their claims. Their cases will be stayed immediately. Seriously ill workers will be forced into a legal limbo for up to 2 years. Their need for compensation to cover medical expenses and basic family necessities will remain, but they will have nowhere to turn for relief. Under the legislation, even exigent health claims currently pending in the courts will be automatically be stayed for 9 months as of the date of enactment. An exigent health claim is one in which the victim has been diagnosed ``as being terminally ill from an asbestos-related illness and having a life expectancy of less than one year.'' By definition, these cases all involve people who have less than a year to live due to mesothelioma or some other disease caused by asbestos exposure. Their cases would all be stayed for 9 months. Nine months is an eternity for someone with less than a year to live. Many of them will die without receiving either their day in court or compensation from the trust fund. The stay language is written so broadly that it would even stop all forward movement of a case in the court system. A trial about to begin would be halted. An appellate ruling about to be issued would be barred. Even the deposition of a dying witness could not be taken to preserve his testimony. The stay would deprive victims of their last chance at justice. I cannot believe that the authors of this bill intended such a harsh result, but that is what the legislation does. The bill does contain language allowing an ``offer of judgment'' to be made during the period of the stay in the hope of producing a settlement. However, this provision is unlikely to resolve many cases because it requires the agreement of the defendants. There is no incentive for defendants to agree to a settlement when the case has been stayed. Those who have tried cases know that it is only the imminence of judicial action which produces a settlement in most cases. Delay is the defendant's best ally; and under this bill, the case is at least delayed for 9 months and may never be allowed to resume if the fund becomes operational. If, however, these exigent cases were not stayed, and judicial proceedings could continue, there would be far more likelihood of cases settling under the offer of judgment process. I strongly believe that, at a minimum, all exigent cases should be exempted from the automatic stay in the legislation. Victims with less than a year to live certainly should be allowed to continue their cases in court uninterrupted until the trust fund became operational. Their ability to recover compensation in the court should not be halted until the trust fund is operational and they are able to receive compensation from that Fund. It is grossly unfair to leave these dying victims in a legal limbo. For them, the old adage is especially true--justice delayed is justice denied. Under the legislation, defendants would receive a credit against what they must contribute to the trust fund for whatever payments they make to these dying victims; so they would not be ``paying twice,'' as some have claimed. Allowing the exigent cases to go forward in the courts without interruption is a matter of simple fairness. Staying the cases of victims who have less than a year to live is bureaucratic insensitivity at its worst. Most of these victims will not live to see the doors of the trust fund open. We should not deprive them of their last chance--their only chance-- to receive some measure of justice before asbestos-induced disease silences them. They should be allowed to receive compensation in their final months to ease their suffering. They should be allowed to die knowing that their families are financially provided for. S. 852 in its current form takes that last chance away from them. The way the legislation is written, victims will lose out at the back end of the process as well, should the trust fund run out of money after several years of operation. If the trust fund does become insolvent, a very real possibility, workers will not have an automatic right to immediately return to the court system. The process outlined in the current bill could take years. Workers could end up trapped in the trust with reduced benefits and long delays in receiving their payments. There needs to be a clear, objective trigger--inability of the trust to pay a certain percentage of claims within a set period of time--that will automatically allow victims to pursue their claims in court if the trust runs out of money. The Judiciary Committee's 2003 legislation contained such a provision, but this bill does not. We cannot allow seriously injured workers with valid claims who are not paid in a timely manner by the trust to be denied their day in court. That would be a shameful injustice. The asbestos trust is being presented as an alternative source of compensation for victims suffering from asbestos-induced disease. If that alternative runs out of money and can no longer compensate those victims in a full and timely manner, their right to seek compensation through the judicial system should be immediately restored with no strings attached. No principle is more basic. Yet, this bill violates that principle. I am particularly upset by the way lung cancer victims are treated in this bill. Under the medical criteria adopted by the Judiciary Committee overwhelmingly 2 years ago, all lung cancer victims who had at least 15 years of weighted exposure to asbestos were eligible to receive compensation from the fund. However, that was changed in S. 852. Under this bill, lung cancer victims who have had very substantial exposure to asbestos over long periods of time are denied any compensation unless they can show asbestos scarring on their lungs. The committee heard expert medical testimony that prolonged asbestos exposure dramatically increases the probability that a person will get lung cancer even if they do not have scarring on their lungs. Deleting this category will deny compensation to more than forty thousand victims suffering with asbestos-related lung cancers. Under the legislation as now drafted, these victims are losing their right to go to court, but are receiving nothing from the fund. How can any of us support such an unconscionable provision? Since we began considering asbestos legislation, no aspect has concerned me more than the treatment of lung cancer victims. My top priority has been to make sure that these severely ill workers receive just and fair compensation, and I have not been alone. A number of other members have spoken out about the importance of adequately providing for lung cancer victims who have been exposed to substantial amounts of asbestos over long periods of time. Now we find that these victims, many of whom will have their lives cut short because of asbestos-induced disease, will not receive one penny in compensation from the trust fund. They are losing their right to go to court, but are also being denied any right to compensation under the fund. They are, in essence, being told to suffer in a legally imposed silence with no recourse whatsoever. One of the arguments we hear most frequently in favor of creating an asbestos trust fund is that in the current system, too much money goes to people who are not really sick and too little goes to those who are seriously ill. Well, lung cancer victims who have years of exposure to asbestos are the ones who are seriously ill. They are the ones this legislation is supposed to be helping. Yet, they are being completely excluded. The committee heard extensive testimony from distinguished medical experts--Dr. Laura Welsh and Dr. Philip Landrigan--that prolonged exposure to asbestos can cause lung cancer even if the victim does not also have markers of nonmalignant asbestos disease. They cited numerous medical authorities supporting their position. They even described treating lung cancer victims whose disease was clearly caused by asbestos but who had neither pleural thickening or asbestosis. In a situation where people are undeniably severely ill and undeniably had 15 or more years of weighted exposure to asbestos, it is wrong to completely exclude them from compensation under the trust fund. Some of the proponents of S. 852 have attempted to justify excluding them by claiming that smoking probably caused their lung cancers. But, the evidence refutes this contention. First, even those lung cancer victims with 15 or more weighted years of exposure to asbestos who had never smoked were removed from eligibility for compensation under the trust fund. So, this is about more than just the relationship between asbestos and smoking. Second, regarding the smoking issue, Dr. Landrigan testified that smokers who have substantial exposure to asbestos have 55 times the background risk of developing lung cancer, while smokers who were not exposed to asbestos have 10 times the background risk of developing lung cancer. Clearly, the asbestos exposure makes a huge difference. There is a powerful synergistic effect between asbestos and tobacco in the causation of lung cancer. Both are substantial contributing factors to the disease. The smoker with substantial asbestos exposure should receive less compensation from the trust fund than the nonsmoker with lung cancer. That principle appears throughout the bill. But smoking is not a reason to exclude the smoker from all compensation. Asbestos and tobacco are analogous to joint tortfeasors. Each is partly responsible and each should pay a proportionate share of the compensation. Without prolonged exposure to asbestos, the smoker would have been far less likely to contract lung cancer. It is a gross injustice to completely exclude these severely ill workers. This bill also tampers with the agreed-upon medical criteria carefully negotiated between representatives of business and labor by raising the standard of proof for each disease category. The language in S. 852 requires the workers to prove that asbestos was ``a substantial contributing factor'' to their disease, instead of just ``a contributing factor.'' This is a major increase in the burden workers must overcome to receive compensation. It is significantly higher than most states currently require in a court of law. Rather than having to show that asbestos exposure contributed to their illness, they will now have to address the relative impact of asbestos and other potential factors. This change is a serious step in the wrong direction, raising the bar even higher on injured workers. Another major shortcoming of this legislation is its failure to compensate the residents of areas that have experienced large-scale asbestos contamination. S. 852 simply pretends that this problem does not exist. It fails to compensate the victims of all asbestos-induced diseases, other than mesothelioma, whose exposure was not directly tied to their work. There is very substantial scientific evidence showing that the men, women and children who lived in the vicinity of asbestos- contaminated sites, such as mining operations and processing plants, can and do contract asbestos-induced disease. The reason that this legislation needs a special provision to compensate the residents of Libby, MT, is because it does not compensate victims of community contamination generally. The residents of Libby are certainly entitled to compensation, but so are the residents who lived near the many processing plants from Massachusetts to California that received the lethal ore from the Libby mine. The deadly dust from Libby, MT was spread across America. W.R. Grace shipped almost 10 billion pounds of Libby ore to its processing facilities between the 1960s and the mid 1990s. One of the places it was shipped was to the Town of Easthampton, MA, where the operations of an expanding plant spread the asbestos to the surrounding environment, into the air and onto the soil. I intend to discuss this problem in great detail as the debate moves forward. I raise it now as a dramatic example of one of the major injustices caused by the arbitrary exclusion of a large number of asbestos victims from compensation under the trust fund. The red spots on this chart show where these other communities were contaminated. The larger the spot, the more shipments. We can see these spots all over the country. Yet these communities are not compensated for it, although one community is; other communities are not. The problem of (community contamination is not limited to the sites receiving ore from Libby. Community asbestos contamination can result from many different sources. For example, medical experts believe it may result from exposure to asbestos after the collapse of the WorId Trade Center. Because of the long latency period, we often do not learn about community asbestos contamination until long after it occurs. Certainly these victims of asbestos are entitled to fair treatment as well. They should not be arbitrarily excluded from compensation as if their suffering is somehow less worthy of recognition than the suffering of other asbestos victims. Yet, that is what S.852 does. This is a bill that shifts more of the financial burden of asbestos- induced disease to injured workers by unfairly and arbitrarily limiting the liability of defendants. It does not establish a fair and reliable system that will compensate all those who are seriously ill due to asbestos. It lacks a dependable funding stream which can ensure that all who are entitled to compensation actually receive full and timely payment. These are very basic shortcomings. We cannot allow what justice requires to be limited by what the wrongdoers are willing to pay. I intend to vote ``no'' and I urge my colleagues to do the same. I yield the floor.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, budget reconciliation is a process adopted by Congress nearly three decades ago to facilitate the passage of legislation to reduce the deficit and to help bring the Federal budget into balance. But in recent years, under the Republican majority, that process has been repeatedly abused to enact more and more tax cuts for the wealthy that make the budget deficit even larger. Now, they are trying to do it again, in spite of the urgent problems facing the Nation, from the ongoing war in Iraq to the devastating hurricane damage along the gulf coast. The Republicans have brought before the Senate two reconciliation bills, one now passed, that would produce a net increase in the budget deficit by billions of dollars over the next 5 years. It sounds like deficit reduction, until you look at the tax reconciliation bill, which will cut taxes by far more than the savings in spending--$70 billion. The net result will be a substantial increase in the budget deficit--exactly the opposite of what the reconciliation process is supposed to accomplish. Billions of dollars will go from programs that assist low income families and senior citizens into the pockets of the already wealthy. It takes from the least and gives to the most. It is a breathtaking Republican scam on the Nation that can only further discredit this Congress in the eyes of the people. From day one, the Republican plan has been to use this reconciliation process to push through a cut in the tax rate on capital gains and dividend income. These are tax cuts that overwhelmingly benefit the richest Americans. Over half the tax benefits will go to millionaires. These tax breaks were in the original mark proposed by Chairman Grassley, and they are in the bill already passed by the Republican majority in the House of Representatives. While they are not in the current Senate bill, we all know these capital gains and dividend tax cuts will reappear in the conference report. Leading Republicans have made that clear. The GOP is intent on delivering those tax breaks to their wealthy supporters. They will be included in the final bill. What is the real cost of these capital gains and dividend tax cuts? The Republicans claim the cost of these provisions is $20 billion, the real cost of extending the lower rates for another 2 years is $50 billion. This tax break is particularly unfair, because over 75 percent of the tax benefits will go to taxpayers with incomes over $200,000 a year. Over half the benefits--53 percent--will go to taxpayers with incomes over $1 million a year. The average millionaire will save over $35,000 a year from these tax breaks for capital gains and dividends. As a result of this shameful Republican let-them-eat-cake proposal, millions of working families would pay a substantially higher tax rate on their wages than wealthy taxpayers pay on their investment income. What could be more unfair? Republicans are penalizing hard work, not rewarding it. They are giving a preference to unearned income over earned income. The Republicans cynically claim that capital gains and dividend income deserve special treatment because they will stimulate investment. The facts do not substantiate that claim. The stock market grew much more rapidly in the early and mid-1990s when investors' income was taxed at the same rate as employers' wages than since the rates on capital gains and dividend income were cut. The overall health of the economy has much more to do with financial stability than special tax breaks for the rich. More tax cuts that America cannot afford will hurt the economy, not help it. There are some provisions in the Senate bill that we do need to address. The alternative minimum tax was never intended to apply to middle-class families, and they deserve tax relief. In a truly outrageous move, the House Republicans took AMT relief for the middle class out of their reconciliation bill so they could fit in more tax breaks for the rich. The research and development tax credit is important to our international competitiveness and should be retained. However, those worthwhile tax cuts should be paid for by rolling back some of the extravagant tax breaks that this Republican Congress has already given to the Nation's wealthiest taxpayers. We simply cannot afford more tax cuts at a time when we are facing record deficits. The financial mismanagement of the Bush administration has weakened our economy and placed our children's financial well-being in peril. The national debt has risen to an all time high of $8 trillion. Under President Bush, our country has borrowed more from foreign governments and foreign financial institutions than in the prior 200 years combined. We are losing control of our Nation's future, and all the Republicans offer is more of the same. More and more tax breaks further enriching the already wealthy, while working families are left to struggle on their own in an increasingly harsh economy. If we are honest about reducing the deficit and strengthening the economy, we need to 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 59 percent in the last 5 years. Gasoline is up 74 percent. College tuition is up 45 percent. Housing is up 44 percent. The list goes on and on, up and up--and paychecks are buying less each year. The dollars that go to pay for more tax breaks for the rich are dollars that could be used to help these families. Instead, this Republican budget plan turns a blind eye to their problems. The economic trends are very disturbing for any who are willing to look at them objectively. The gap between rich and poor has been widening in recent years. Thirty-seven million Americans now live in poverty, up 19 percent during the Bush administration. One in five American children lives in poverty. Fourteen million children go to bed hungry each night. Wages remain stagnant while inflation drags more and more families below the poverty line. Two-point-eight million manufacturing jobs have been lost. Long-term unemployment is at historic highs. In his second inaugural address, President Lincoln reminded us of the solemn obligation that we have to those who fight our Nation's wars. He said ``let us strive on to finish the work we are in, to bind up the Nation's wounds, to care for him who shall have borne the battle [and for his widow and his orphan.]'' Over 550,000 brave men and women have served in Iraq and Afghanistan. A majority of them have served multiple tours fighting under dangerous conditions, and battling an unseen foe. We owe it to them to care for their injuries incurred in service of our Nation. As of today, over 16,000 of our troops have been injured in battle. Of those, over 7,500 were so seriously injured that they could not return to duty. We have seen the ravages of war in the wards of Walter Reed and Bethesda. While body armor saves lives, many soldiers and Marines have lost their limbs. Others will survive with major injuries to their spine or brain damage. This summer, the Surgeon General of the Army reported that 30 percent of U.S. troops have developed mental health problems within a few months of their return from Iraq. Twenty percent of the troops injured in Iraq have suffered head and brain injuries that require a lifetime of continual care that could cost as much as $5 million. A recent study by the New England Journal of Medicine found that 15 to 17 percent of Iraqi vets showed signs of ``major depression, generalized anxiety, or [Post Traumatic Stress Disorder].'' But of those, only 23 to 40 percent are seeking help. Many of them will wind up homeless with no other options for their health care than the VA. After their service to our country, we should not leave them out on the street. The increased use of the Guard and Reserve in this conflict has created an entirely new category of people who may now make use of the VA. The Guard and Reserve make up approximately 40 percent of the troops on the ground, and approximately 90,000 have sought care at VA hospitals. Unfortunately, our current budgets do not reflect this reality. A recent study by Nobel Prize-winning economist Joseph Stiglitz and Harvard professor Linda Bilmes found that the costs of paying for the injured from these wars has not yet been budgeted. To our dismay, we learned that the Veterans' Administration needed an additional $2.7 billion for this fiscal year to care for the veterans returning from the war. Stiglitz and Bilmes found that, ``the military values the cost of those injured by what their medical treatment cost and disability pay; and current accounting only reflects current payments in disability'' not future payments. Based on their calculations, it could cost as much as $24.1 billion to pay for these costs over the next 5 years. Of this amount, $9.4 billion for medical care and $14.7 billion for increased disability payments. This amendment Senator Dodd and I have introduced would rectify that shortfall and keep faith with our men and women in uniform. It would be paid for by elimination of the capital gains and dividends tax breaks for taxpayers with over $1 million in annual income. We owe it to soldiers like Sergeant Peter Damon, a son of Massachusetts who lost his arms in Iraq. I also express my support for the amendment offered by Senator Rockefeller that would provide strong tax incentives for mining companies to adopt safer practices and up-to-date safety equipment. The recent tragedies at Sago Mine and Alma Mine in West Virginia remind us that the safety of the Nation's workers is paramount. This year, 21 miners have already been killed on the job. In early January, 12 miners died when they were trapped after an explosion at the Sago Mine. Just 2\1/2\ weeks later, two more miners died in a mine fire at the Alma mine. And tragically, yesterday, there were three more mine accidents in West Virginia, killing two more men. One miner died in an underground mine in Boone County when a wall support came loose. A second miner died when a bulldozer struck a gas line, causing a deadly fire. Miners have also died this year in Kentucky and Utah. Our entire Nation joins the families and the communities in mourning these fallen miners. We have a continuing obligation to do everything we can to protect the safety of America's workers. It is obvious that we are not meeting that obligation. Two weeks ago, I traveled with Senator Rockefeller, Health, Education, Labor and Pensions Committee Chairman Enzi, and Subcommittee Chairman Isakson to meet with the family members of the miners who were killed at Sago Mine, and with coalminers, company representatives, and health and safety experts. Each of us committed to improving the Nation's mine safety laws. A critical part of that commitment is to ensure that all of our Nation's miners have the best safety equipment available. This amendment will encourage companies to adopt up-to-date mine safety equipment by providing accelerated deductions for companies that invest in these technologies. It encourages mines to adopt emergency communications technology and tracking devices to locate miners underground. It will also encourage coal mines to ensure that workers have access to additional stores of emergency oxygen, which will give them extra time to exit a mine or to wait for rescue. Finally, the amendment acknowledges the vital need for experienced mine rescuers who are familiar with the underground geography of a mine. By providing a tax credit to encourage the formation of mine rescue teams, we hope to ensure that mines have well- trained rescuers onsite, saving precious minutes in any rescue attempt. These are all safety measures that could have made a difference in the terrible tragedies that occurred this year at Sago and Alma Mines. By passing this amendment, we take the first step toward preventing future such tragedies from occurring. I have joined separately in sponsoring legislation introduced by Senator Byrd and Senator Rockefeller to require the Mine Safety and Health Administration to quickly adopt needed safety standards. Both of these measures are critical to improving safety conditions in America's mines. Our Nation's miners deserve no less, and I urge my colleagues to support this amendment and the Federal Mine Safety and Health Act of 2006. Instead of helping hard-pressed families, the budget reconciliation process is being misused to cut the programs and eliminate the services that these families need most, while granting the wealthy even more tax breaks. It is yet another opportunity squandered--another chance that this Republican Congress had to make things better. But once again, this Congress has chosen to make them worse instead. The American people deserve better.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I want to express my support for the Federal Mine Safety and Health Act of 2006, introduced today by Senators Byrd and Rockefeller. The recent tragedies at Sago Mine and Alma Mine in West Virginia remind us that the safety of the Nation's workers is paramount. Mining continues to be extremely hazardous--it has consistently been the first or second most dangerous industry in the country. This year we have already had 17 mine fatalities, 15 of them in coal mines, and 14 of them in West Virginia. And sadly, I understand that two more miners may have been killed today. Our entire Nation joins their families and communities in mourning these fallen miners. We have a continuing obligation to do everything we can to protect the safety of America's workers. It is obvious that we are not meeting that obligation. Two weeks ago, I traveled with Senator Rockefeller, HELP Committee Chairman Enzi, and Subcommittee Chairman Isakson to meet with the family members of the miners who were killed at Sago Mine, and with coalminers, company representatives, and health and safety experts. Each of us made a sincere commitment to improving the Nation's mine safety laws. This legislation provides a vital first step. It requires swift action by the Mine Safety and Health Administration to adopt standards that are long overdue and bring mine safety standards out of the Stone Age and into the 21st century. It will bring stronger enforcement and up-to-date technology to every mine in America. First and foremost, we need to ensure that the rescue and communications technology available to our Nation's miners is the most up-to-date available. Coal companies have spent millions on improving techniques for extracting coal and metals from the ground, but miners still have to rely on oxygen units and phone lines that were developed 30 years ago. We already know better communications and miner tracking technology exists in other countries. It has been available in the United States for several years but, despite its proven availability to help save miners' lives, only a handful of mines here in the U.S. are using it. This bill would create a dedicated office at MSHA to explore mine safety technologies and to work with other Federal agencies to ensure that our Nation's mines are using the newest and best safety equipment. While innovation is important, we also need to ensure that we use all of the tools available today to keep our Nation's miners safe. Earlier this week, 72 workers at a mine in Canada were saved because Canadian mines are required to provide adequate stores of oxygen. It's a travesty that we aren't doing the same for American miners. This bill would require every coal mine in this country to have rescue chambers available, with emergency air supplies and breathing devices to help keep miners alive while they are waiting for rescue. We also need to see that every mine is adequately prepared to respond to future emergencies. When miners are trapped underground, every minute is precious. Yet our laws and policies do not require mine rescue teams to be onsite. All too often it takes hours for rescuers to reach a mine and, when they do arrive, they are not familiar with the mine's layout. We also are losing experienced miners to work on these teams, as the average age of rescue workers is rising. The number of trained rescuers is decreasing, even as demand for coal production increases. This legislation would require coal companies to have onsite rescue teams employed by the mine, who are familiar with the layout of the mine and are at the ready in the case of an emergency. It also directs the Secretary of Labor to develop requirements for the training and qualifications of mine rescue workers, and the equipment and technology used in mine rescues. We also need to ensure that our penalties are a significant deterrent to mine operators who continually violate the law. Sago Mine had an injury rate nearly three times that of the national average and had been cited by MSHA for over 200 safety violations in 2005. Nearly half of these were ``serious and substantial''--meaning that the violations had the potential to lead to serious injury. Eighteen of the violations were so serious that they led to partial closures of the mine. I know that President Bush has proposed raising maximum fines for the most flagrant violations from $60,000 to $220,000. But this ignores the critical failures of our minimum penalties, which are so low as to be toothless. It is difficult to believe that penalties lower than traffic tickets will deter companies that make millions of dollars in profits each year. This legislation would ensure that willful and negligent violators of the law would face a minimum fine of $10,000. Mine operators who fail to immediately notify MSHA of an emergency face fines of up to $100,000. This bill starts a long overdue process to improve the safety of our Nation's miners. We must act before another tragedy like those at the Sago and Alma Mines occurs. I commend Senator Byrd and Senator Rockefeller and the West Virginia Delegation for crafting this legislation. And I join them in asking my colleagues to support its swift passage.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I want to express my support for the Federal Mine Safety and Health Act of 2006, introduced today by Senators Byrd and Rockefeller. The recent tragedies at Sago Mine and Alma Mine in West Virginia remind us that the safety of the Nation's workers is paramount. Mining continues to be extremely hazardous--it has consistently been the first or second most dangerous industry in the country. This year we have already had 17 mine fatalities, 15 of them in coal mines, and 14 of them in West Virginia. And sadly, I understand that two more miners may have been killed today. Our entire Nation joins their families and communities in mourning these fallen miners. We have a continuing obligation to do everything we can to protect the safety of America's workers. It is obvious that we are not meeting that obligation. Two weeks ago, I traveled with Senator Rockefeller, HELP Committee Chairman Enzi, and Subcommittee Chairman Isakson to meet with the family members of the miners who were killed at Sago Mine, and with coalminers, company representatives, and health and safety experts. Each of us made a sincere commitment to improving the Nation's mine safety laws. This legislation provides a vital first step. It requires swift action by the Mine Safety and Health Administration to adopt standards that are long overdue and bring mine safety standards out of the Stone Age and into the 21st century. It will bring stronger enforcement and up-to-date technology to every mine in America. First and foremost, we need to ensure that the rescue and communications technology available to our Nation's miners is the most up-to-date available. Coal companies have spent millions on improving techniques for extracting coal and metals from the ground, but miners still have to rely on oxygen units and phone lines that were developed 30 years ago. We already know better communications and miner tracking technology exists in other countries. It has been available in the United States for several years but, despite its proven availability to help save miners' lives, only a handful of mines here in the U.S. are using it. This bill would create a dedicated office at MSHA to explore mine safety technologies and to work with other Federal agencies to ensure that our Nation's mines are using the newest and best safety equipment. While innovation is important, we also need to ensure that we use all of the tools available today to keep our Nation's miners safe. Earlier this week, 72 workers at a mine in Canada were saved because Canadian mines are required to provide adequate stores of oxygen. It's a travesty that we aren't doing the same for American miners. This bill would require every coal mine in this country to have rescue chambers available, with emergency air supplies and breathing devices to help keep miners alive while they are waiting for rescue. We also need to see that every mine is adequately prepared to respond to future emergencies. When miners are trapped underground, every minute is precious. Yet our laws and policies do not require mine rescue teams to be onsite. All too often it takes hours for rescuers to reach a mine and, when they do arrive, they are not familiar with the mine's layout. We also are losing experienced miners to work on these teams, as the average age of rescue workers is rising. The number of trained rescuers is decreasing, even as demand for coal production increases. This legislation would require coal companies to have onsite rescue teams employed by the mine, who are familiar with the layout of the mine and are at the ready in the case of an emergency. It also directs the Secretary of Labor to develop requirements for the training and qualifications of mine rescue workers, and the equipment and technology used in mine rescues. We also need to ensure that our penalties are a significant deterrent to mine operators who continually violate the law. Sago Mine had an injury rate nearly three times that of the national average and had been cited by MSHA for over 200 safety violations in 2005. Nearly half of these were ``serious and substantial''--meaning that the violations had the potential to lead to serious injury. Eighteen of the violations were so serious that they led to partial closures of the mine. I know that President Bush has proposed raising maximum fines for the most flagrant violations from $60,000 to $220,000. But this ignores the critical failures of our minimum penalties, which are so low as to be toothless. It is difficult to believe that penalties lower than traffic tickets will deter companies that make millions of dollars in profits each year. This legislation would ensure that willful and negligent violators of the law would face a minimum fine of $10,000. Mine operators who fail to immediately notify MSHA of an emergency face fines of up to $100,000. This bill starts a long overdue process to improve the safety of our Nation's miners. We must act before another tragedy like those at the Sago and Alma Mines occurs. I commend Senator Byrd and Senator Rockefeller and the West Virginia Delegation for crafting this legislation. And I join them in asking my colleagues to support its swift passage.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it's a privilege to join my colleague Senator Grassley in submitting this important resolution commemorating February 2006 as Go Direct Month. In 2004, the Treasury Department issued over 70,000 checks worth $61 million that were illegally signed for. The Treasury receives approximately half a million phone calls each year from people having problems with paper checks. Go Direct encourages Americans to use direct deposit for their Federal checks, such as Social Security. Under direct deposit, the Federal Government transfers its payments directly to a person's bank account, eliminating the risk of lost or stolen checks. Since 1986, direct deposit has also saved the Federal Government $5 billion in administrative costs--$120 million a year for Social Security checks alone. Now, the Treasury Department and the Federal Reserve have launched Go Direct to encourage Americans to protect their Federal benefits and take more control of their money. Go Direct Month, promoted by the Federal Government and by State and local governments and the private sector as well, will inform as many citizens as possible about the advantages of direct deposit and help them adopt direct deposit for the future. I urge my colleagues to approve this worthwhile resolution and to encourage their constituents to take advantage of this time-saving and problem-avoiding initiative.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, in this century of the life sciences, medical miracles have the potential to improve the health and extend the lives of millions of Americans and millions more across the world. But for too many of our citizens, quality affordable health care is a distant dream, and the promise of the century of the life sciences rings hollow. Forty-six million Americans have no health insurance. Under the current Administration, the number has climbed every year of this Administration, from 40 million in 2000 to 46 million today. That's equivalent to the population of 24 States and the District of Columbia--combined. That's 46 million Americans who wonder whether a cough or fever will turn into a serious illness that brings financial ruin, and 46 million Americans who have to make the impossible choice between paying for a visit to the doctor or paying the rent to keep a roof over their heads. Even these figures understate the problem. Over a two year period, 82 million Americans, one out of every three Americans under 65, will be uninsured for a period of at least two months. The burden of lack of health insurance falls most heavily on minority populations. Less than 13 percent of white Americans are uninsured, but over 20 percent of African Americans lack health insurance. For Hispanic Americans, the figure is even more appalling--over a third of Hispanic Americans lack coverage. Over 80 percent of the uninsured are members of working families. They work 40 hours a week, fifty-two weeks a year--but all their hard work can't buy them the health insurance they need to protect themselves and their families--because they can't afford it and their employers don't provide it. In any given year, one third of the uninsured go without needed medical care. Eight million uninsured Americans fail to take the drugs their doctors prescribe--because they can't afford to fill the prescription. 270,000 children suffering from asthma never see a doctor. 27,000 uninsured women are diagnosed with breast cancer each year. They are twice as likely as insured women not to receive medical treatment until their cancer has spread. As a result, they are 50 percent more likely to die of the disease. The list of grim examples goes on and on. Some argue that despite the lack of health care coverage, the uninsured get the care they need. But that's a myth. The facts prove otherwise. Thirty five percent of the uninsured--over 15 million Americans--skip recommended treatment because of cost. Over a third of the uninsured need care but do not get it, and nearly half postpone care because of its cost. Millions of Americans are at risk of ignoring serious illnesses, because they can't afford to see a doctor for a needed test. Whether the disease is AIDS or mental illness or cancer or heart disease or diabetes, the uninsured are left out and left behind. In hospital and out, young or old, black or white, they receive less care, suffer more, and are 25 percent more likely to die than those who are insured. But the large and growing number of the uninsured is only part of the health care crisis. Costs are rising out of control, making health care coverage less affordable for businesses and individuals, and undercutting American industry in the global marketplace. There is no doubt that America has the finest health care professionals, the best hospitals and the most creative medical researchers in the world. But having the best components is no guarantee of success for the health care system as a whole. In the amount of money spent on health care per person, America is first in the world by a large margin. By that standard, we spend 49 percent more than the Swiss, 88 percent more than the Germans, 150 percent more than the British, and 160 more than the Japanese. Despite this enormons expenditure, America's health care system fails all too often to deliver quality health care. Among the world's leading industrialized countries, the United States ranks only 22nd in average life expectancy and 25th in infant mortality. The most significant difference between the American health care system and those of our economic competitors is that these other nations regard health as a right, not a privilege. They make certain that their citizens have access to good health care. By establishing a national system of care, they have been able to hold down costs and keep quality high. In the United States, we have refused to commit to quality health care for all Americans. As a result, those who can afford the best care receive it, but millions of other Americans are left by the wayside. Because of our fractured system of care, America's health care system is the most economically inefficient in the industrial world. The administrative costs alone of our system are nearly double those of Canada. Reducing our administrative costs to the low level of the Canadian system would save about $250 billion every year. The difference between the way health care is financed in Canada and the U.S. saves the Canadian auto industry $4.00 an hour in worker compensation compared to the U.S. The Canadian branches of the big three automakers have released a joint letter with the Canadian Auto Workers Union stating that the Canadian system is a ``strategic advantage for Canada'' and ``has been an important ingredient'' in the success of Canada's ``most important export industry.'' Wise investments have helped contain health care costs here at home too. Since 1996, costs per patient in the Veterans medical system have actually decreased 7 percent, while private sector costs per patient have increased by 62 percent. The VA system did not achieve these savings by stinting on patient care or denying needed services. The VA has been widely praised for improving its quality of care through investments in information technology and a strong commitment to quality for all. As a result of America's failure to focus on comprehensive care and cost reduction, costs are soaring out of control. Health care premiums have gone up over 70 percent in the last five years--over 5 times the overall rate of inflation in the economy. More and more small businesses can't afford to offer health care to their employees. Health care costs mean that working Americans who have health coverage through their job are increasingly worried that their employer will eliminate the coverage on which they rely. Those who obtain coverage on the individual market must often pay huge premiums and accept large gaps in their coverage if they have any history of illness, no matter how slight. Many cannot obtain coverage at any price. Even those who have health insurance have little security. Millions of Americans have seen health care costs eat away their savings and cut into their paychecks more and more every year. Since the year 2000, the average cost of a family health insurance policy has increased by over $4,500, so that it now costs the average family nearly $11,000 for a health care policy. Family earnings have not kept pace. According to the Kaiser Family Foundation, health insurance premiums climbed by 73 percent over the last five years--but earnings increased only 15 percent. The costs keep climbing higher and higher. Almost one in five working families have seen their premiums go up over 15 percent--and one in ten have faced increases over 20 percent. These out-of-control costs are devastating for both individuals and businesses. Working families often face the agonizing choice between paying for health insurance and paying rent or buying groceries. Or they compromise by buying a meager insurance policy that provides little refuge when big danger strikes. It's no wonder that unpaid medical bills cause nearly half the bankruptcies in America. It's no wonder that practically every business leader in America cites rising health care costs as a top concern. When General Motors has to spend more on health care than it does on steel, it's time for a change. When ten percent of the total cost of a ton of steel manufactured in the United States is consumed by retiree health benefits alone, it's time for a change. When Starbucks spends more on health care than it does on coffee, it's time for a change. In world markets, American businesses have to compete with foreign firms whose health costs are heavily subsidized by the government. American workers are the best in the world, but we give other nations an unfair advantage, because we refuse to enact long overdue policies to reduce health costs and ease the heavy burden of health care for American employees. To say that this Administration and its Republican allies in Congress have stood idly by as this crisis has worsened would be untrue. To say they have taken no action as 3,000 more Americans have become uninsured during every single day of the Bush Administration would be inaccurate. They have taken action--by making the health care crisis worse. Tomorrow, the House of Representatives will vote on a budget bill that will make the health care crisis worse for the 50 million Americans for whom Medicaid is literally the difference between life or death. The Republican bill makes them pay more and more for the health care on which their lives depend. I urge the House to reject these distorted priorities. Currently, communities across the nation are struggling to cope with the disaster caused by the Republican Medicare drug ``plan''. Millions of seniors have faced a baffling array of choices, instead of the certainty of Medicare in getting the medications they need. Millions of persons with disabilities, or those facing the challenge of HIV/AIDS or living with mental illnesses have been denied the prescriptions they require, or have been told to pay exorbitant fees by the insurance companies that Republicans put in charge of the drug benefit. Try telling those who have been denied their medicines that they are in charge of their health care. Tonight, the President will try to make the American people believe that the solution to rising health costs is to shift more and more of those costs to patients, or to deny care to those in need. That's the wrong prescription for health care. The President's proposal will let the wealthiest Americans rack up billions of dollars in tax giveaways, while shifting the costs of health care to working families and those least able to pay. Our people deserve true health care reform--not gimmicks and giveaways that worsen the crisis. They deserve a guarantee that when they get sick, they'll be able to obtain decent health care at a price they can afford. Medicare has meant quality health care for millions of senior citizens for forty years. The time has come to make Medicare available to every American who wants to enroll in it. It's the best way to bring the enormous promise of this new century of the life sciences to every American. America's failure to guarantee the basic right to health care for all its citizens was one of the great public policy failures of the 20th century, and we must not allow that failure to continue in this new century. There is a better way. Our goal should be an America where no citizen of any age fears the cost of health care, and no employer stops creating jobs because of the high cost of providing health insurance. We should build on the tried and true and trusted model of Medicare. Administrative costs are low, patient satisfaction is high, and patients have the right to choose any doctor and hospital they think is best--not the one an insurance company thinks is best for them. Today I am introducing legislation to extend Medicare to all Americans, from birth to the end of life. Those who prefer private insurance can choose any of the plans offered to members of Congress and the President. I call this approach Medicare for All, because it will free all Americans from the fear of medical expenses and enable them to seek the best possible care when illness strikes. Nothing is more cynical than a Member of Congress who gives a speech denouncing health care for all, then goes off to see his doctor for a visit paid for by the Federal Employees Health Benefit Plan. To ease the transition, Medicare for All will be phased in by age group, starting with those 55-65 years old and children up to the age of 20. The plan contains a number of provisions to reduce costs and improve quality, including more effective use of health information technology. It also puts new emphasis on preventive care, because preventing illness before it occurs is always better and less expensive than treating patients after they become ill. My proposal will be entirely voluntary. Any American who wishes to stay in their current employer-sponsored plan can do so, and employers can tailor their health plans to provide additional services to their employees that wrap around Medicare coverage. As we implement this reform, financing must be a shared responsibility. All will benefit, and all should contribute. Payroll taxes should be part of the financing, but so should general revenues, to make the financing as progressive as possible. We can offset a large part of the expense by a single giant step-- bringing health care into the modem age of information technology. By moving to electronic medical records for all Americans when they go to the hospital or their doctor, we can save hundreds of billions of dollars a year in administrative costs while improving the quality of care. Equally important, we should pay for health care based on value and results, not just the number of procedures performed or days in a hospital bed. We all know that Medicare is one of the most successful social programs ever enacted. It makes no sense to make it available only to senior citizens. I have no doubt that if we were enacting Medicare today, we would not limit its benefits to seniors. The need for good health coverage is as urgent today for all Americans as it was for senior citizens 40 years ago, when Medicare was first enacted. The battle to achieve Medicare for All will not be easy. Powerful interests will strongly oppose it, because they profit immensely from the status quo. But no battle worth fighting is easy--and the struggle to fulfill the promise of this century of the life sciences for all our citizens is as worthy as any in American history. I urge my colleagues to make good on the promise of America, and see that all our citizens receive the quality health care that should be their birthright. I urge the Senate to support Medicare for All.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, in this century of the life sciences, medical miracles have the potential to improve the health and extend the lives of millions of Americans and millions more across the world. But for too many of our citizens, quality affordable health care is a distant dream, and the promise of the century of the life sciences rings hollow. Forty-six million Americans have no health insurance. Under the current Administration, the number has climbed every year of this Administration, from 40 million in 2000 to 46 million today. That's equivalent to the population of 24 States and the District of Columbia--combined. That's 46 million Americans who wonder whether a cough or fever will turn into a serious illness that brings financial ruin, and 46 million Americans who have to make the impossible choice between paying for a visit to the doctor or paying the rent to keep a roof over their heads. Even these figures understate the problem. Over a two year period, 82 million Americans, one out of every three Americans under 65, will be uninsured for a period of at least two months. The burden of lack of health insurance falls most heavily on minority populations. Less than 13 percent of white Americans are uninsured, but over 20 percent of African Americans lack health insurance. For Hispanic Americans, the figure is even more appalling--over a third of Hispanic Americans lack coverage. Over 80 percent of the uninsured are members of working families. They work 40 hours a week, fifty-two weeks a year--but all their hard work can't buy them the health insurance they need to protect themselves and their families--because they can't afford it and their employers don't provide it. In any given year, one third of the uninsured go without needed medical care. Eight million uninsured Americans fail to take the drugs their doctors prescribe--because they can't afford to fill the prescription. 270,000 children suffering from asthma never see a doctor. 27,000 uninsured women are diagnosed with breast cancer each year. They are twice as likely as insured women not to receive medical treatment until their cancer has spread. As a result, they are 50 percent more likely to die of the disease. The list of grim examples goes on and on. Some argue that despite the lack of health care coverage, the uninsured get the care they need. But that's a myth. The facts prove otherwise. Thirty five percent of the uninsured--over 15 million Americans--skip recommended treatment because of cost. Over a third of the uninsured need care but do not get it, and nearly half postpone care because of its cost. Millions of Americans are at risk of ignoring serious illnesses, because they can't afford to see a doctor for a needed test. Whether the disease is AIDS or mental illness or cancer or heart disease or diabetes, the uninsured are left out and left behind. In hospital and out, young or old, black or white, they receive less care, suffer more, and are 25 percent more likely to die than those who are insured. But the large and growing number of the uninsured is only part of the health care crisis. Costs are rising out of control, making health care coverage less affordable for businesses and individuals, and undercutting American industry in the global marketplace. There is no doubt that America has the finest health care professionals, the best hospitals and the most creative medical researchers in the world. But having the best components is no guarantee of success for the health care system as a whole. In the amount of money spent on health care per person, America is first in the world by a large margin. By that standard, we spend 49 percent more than the Swiss, 88 percent more than the Germans, 150 percent more than the British, and 160 more than the Japanese. Despite this enormons expenditure, America's health care system fails all too often to deliver quality health care. Among the world's leading industrialized countries, the United States ranks only 22nd in average life expectancy and 25th in infant mortality. The most significant difference between the American health care system and those of our economic competitors is that these other nations regard health as a right, not a privilege. They make certain that their citizens have access to good health care. By establishing a national system of care, they have been able to hold down costs and keep quality high. In the United States, we have refused to commit to quality health care for all Americans. As a result, those who can afford the best care receive it, but millions of other Americans are left by the wayside. Because of our fractured system of care, America's health care system is the most economically inefficient in the industrial world. The administrative costs alone of our system are nearly double those of Canada. Reducing our administrative costs to the low level of the Canadian system would save about $250 billion every year. The difference between the way health care is financed in Canada and the U.S. saves the Canadian auto industry $4.00 an hour in worker compensation compared to the U.S. The Canadian branches of the big three automakers have released a joint letter with the Canadian Auto Workers Union stating that the Canadian system is a ``strategic advantage for Canada'' and ``has been an important ingredient'' in the success of Canada's ``most important export industry.'' Wise investments have helped contain health care costs here at home too. Since 1996, costs per patient in the Veterans medical system have actually decreased 7 percent, while private sector costs per patient have increased by 62 percent. The VA system did not achieve these savings by stinting on patient care or denying needed services. The VA has been widely praised for improving its quality of care through investments in information technology and a strong commitment to quality for all. As a result of America's failure to focus on comprehensive care and cost reduction, costs are soaring out of control. Health care premiums have gone up over 70 percent in the last five years--over 5 times the overall rate of inflation in the economy. More and more small businesses can't afford to offer health care to their employees. Health care costs mean that working Americans who have health coverage through their job are increasingly worried that their employer will eliminate the coverage on which they rely. Those who obtain coverage on the individual market must often pay huge premiums and accept large gaps in their coverage if they have any history of illness, no matter how slight. Many cannot obtain coverage at any price. Even those who have health insurance have little security. Millions of Americans have seen health care costs eat away their savings and cut into their paychecks more and more every year. Since the year 2000, the average cost of a family health insurance policy has increased by over $4,500, so that it now costs the average family nearly $11,000 for a health care policy. Family earnings have not kept pace. According to the Kaiser Family Foundation, health insurance premiums climbed by 73 percent over the last five years--but earnings increased only 15 percent. The costs keep climbing higher and higher. Almost one in five working families have seen their premiums go up over 15 percent--and one in ten have faced increases over 20 percent. These out-of-control costs are devastating for both individuals and businesses. Working families often face the agonizing choice between paying for health insurance and paying rent or buying groceries. Or they compromise by buying a meager insurance policy that provides little refuge when big danger strikes. It's no wonder that unpaid medical bills cause nearly half the bankruptcies in America. It's no wonder that practically every business leader in America cites rising health care costs as a top concern. When General Motors has to spend more on health care than it does on steel, it's time for a change. When ten percent of the total cost of a ton of steel manufactured in the United States is consumed by retiree health benefits alone, it's time for a change. When Starbucks spends more on health care than it does on coffee, it's time for a change. In world markets, American businesses have to compete with foreign firms whose health costs are heavily subsidized by the government. American workers are the best in the world, but we give other nations an unfair advantage, because we refuse to enact long overdue policies to reduce health costs and ease the heavy burden of health care for American employees. To say that this Administration and its Republican allies in Congress have stood idly by as this crisis has worsened would be untrue. To say they have taken no action as 3,000 more Americans have become uninsured during every single day of the Bush Administration would be inaccurate. They have taken action--by making the health care crisis worse. Tomorrow, the House of Representatives will vote on a budget bill that will make the health care crisis worse for the 50 million Americans for whom Medicaid is literally the difference between life or death. The Republican bill makes them pay more and more for the health care on which their lives depend. I urge the House to reject these distorted priorities. Currently, communities across the nation are struggling to cope with the disaster caused by the Republican Medicare drug ``plan''. Millions of seniors have faced a baffling array of choices, instead of the certainty of Medicare in getting the medications they need. Millions of persons with disabilities, or those facing the challenge of HIV/AIDS or living with mental illnesses have been denied the prescriptions they require, or have been told to pay exorbitant fees by the insurance companies that Republicans put in charge of the drug benefit. Try telling those who have been denied their medicines that they are in charge of their health care. Tonight, the President will try to make the American people believe that the solution to rising health costs is to shift more and more of those costs to patients, or to deny care to those in need. That's the wrong prescription for health care. The President's proposal will let the wealthiest Americans rack up billions of dollars in tax giveaways, while shifting the costs of health care to working families and those least able to pay. Our people deserve true health care reform--not gimmicks and giveaways that worsen the crisis. They deserve a guarantee that when they get sick, they'll be able to obtain decent health care at a price they can afford. Medicare has meant quality health care for millions of senior citizens for forty years. The time has come to make Medicare available to every American who wants to enroll in it. It's the best way to bring the enormous promise of this new century of the life sciences to every American. America's failure to guarantee the basic right to health care for all its citizens was one of the great public policy failures of the 20th century, and we must not allow that failure to continue in this new century. There is a better way. Our goal should be an America where no citizen of any age fears the cost of health care, and no employer stops creating jobs because of the high cost of providing health insurance. We should build on the tried and true and trusted model of Medicare. Administrative costs are low, patient satisfaction is high, and patients have the right to choose any doctor and hospital they think is best--not the one an insurance company thinks is best for them. Today I am introducing legislation to extend Medicare to all Americans, from birth to the end of life. Those who prefer private insurance can choose any of the plans offered to members of Congress and the President. I call this approach Medicare for All, because it will free all Americans from the fear of medical expenses and enable them to seek the best possible care when illness strikes. Nothing is more cynical than a Member of Congress who gives a speech denouncing health care for all, then goes off to see his doctor for a visit paid for by the Federal Employees Health Benefit Plan. To ease the transition, Medicare for All will be phased in by age group, starting with those 55-65 years old and children up to the age of 20. The plan contains a number of provisions to reduce costs and improve quality, including more effective use of health information technology. It also puts new emphasis on preventive care, because preventing illness before it occurs is always better and less expensive than treating patients after they become ill. My proposal will be entirely voluntary. Any American who wishes to stay in their current employer-sponsored plan can do so, and employers can tailor their health plans to provide additional services to their employees that wrap around Medicare coverage. As we implement this reform, financing must be a shared responsibility. All will benefit, and all should contribute. Payroll taxes should be part of the financing, but so should general revenues, to make the financing as progressive as possible. We can offset a large part of the expense by a single giant step-- bringing health care into the modem age of information technology. By moving to electronic medical records for all Americans when they go to the hospital or their doctor, we can save hundreds of billions of dollars a year in administrative costs while improving the quality of care. Equally important, we should pay for health care based on value and results, not just the number of procedures performed or days in a hospital bed. We all know that Medicare is one of the most successful social programs ever enacted. It makes no sense to make it available only to senior citizens. I have no doubt that if we were enacting Medicare today, we would not limit its benefits to seniors. The need for good health coverage is as urgent today for all Americans as it was for senior citizens 40 years ago, when Medicare was first enacted. The battle to achieve Medicare for All will not be easy. Powerful interests will strongly oppose it, because they profit immensely from the status quo. But no battle worth fighting is easy--and the struggle to fulfill the promise of this century of the life sciences for all our citizens is as worthy as any in American history. I urge my colleagues to make good on the promise of America, and see that all our citizens receive the quality health care that should be their birthright. I urge the Senate to support Medicare for All.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, Coretta Scott King was a driving force, not just for the civil rights movement, but for the great march toward progress. Martin Luther King and Coretta Scott King awakened the conscience of a nation that began the journey toward equality, knocking down the walls of discrimination based on race, on religion, and on ethnicity. We have all benefited so much from their inspiration and their leadership. Coretta was not only a powerful and charismatic figure and leader for our time, but she was a mother who helped her children grow up to be individuals with a sense of dignity, a sense of pride in their heritage and a strong commitment to do something for someone else. I admire her for that as well, and my thoughts and prayers are with her children today. The signs of bigotry and discrimination are still evident today. They're much more sophisticated and much more subtle than when Dr. King was facing the police dogs and the beatings that took place in Selma, Montgomery, and in towns and cities across America. There's no question that we're a fairer and a better nation because of Dr. King, and I believe what Coretta Scott King would want us to do is continue this march toward progress when it comes to disability rights, women's rights, civil rights--and not retreat from it.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I suggest the absence of a quorum.

Mr. KENNEDY. I have 7\1/2\ minutes, am I correct in that?

Mr. KENNEDY. I will yield myself 7 minutes. First of all, I thank my friend, Senator Kerry, for his strong commitment on this issue and his eloquence, passion, and support of this position. This is a time in the Senate that a battle needs to be fought. This vote that we are casting with regard to Judge Alito is going to have echoes for years and years to come. It is going to be a defining vote about the Constitution of the United States, about our protections of our rights and our liberties in the Constitution of the United States. People in my State at this particular time are concerned about the difficulties they are having with prescription drugs. They are concerned about the problems they are having in paying their oil bills. They are concerned about their problems in paying for the education of their children. They are troubled by what they see as a result of Katrina. They are bothered by what they hear about the corruption in Washington and are deeply troubled by what is happening in Iraq. They have not had a chance to focus on what is the meaning of this vote in the Senate this afternoon. But all you have to do is look back into history. Look back into the history of the judiciary. Look back to the history of the Fifth Circuit that was making the decisions in the 1950s. Look at the record of Justice Wisdom, Judge Tuttle, Judge Johnson of Alabama and the courage they demonstrated that said at last we are going to break down the walls of discrimination in this country that have gripped this Nation for 200 years. Our Founding Fathers failed the test when they wrote slavery into the Constitution. Abraham Lincoln pointed the way, and we passed the 13th, 14th, and 15th amendments and had a Civil War, but we did not resolve this issue. It was only until the courage of members of--what branch of Government? Not the Congress. Not the Senate. Not the executive. The judiciary, the Fifth Circuit. We are talking now about the Supreme Court, but they are the ones who changed this country inevitably with what we call the march toward progress, the march toward knocking down the walls of discrimination that permitted us to pass the 1964 Civil Rights Act in public accommodations, so people whose skin was not White could go into restaurants and hotels--public accommodations; the 1965 act for voting, voting rights; the 1968 act on public accommodations; the 1973 act to say that women are going to be treated equally; the Americans with Disabilities Act that say the disabled are going to be part of the American family. All of that is the march to progress. My friends, the one organization, the one institution that protects it is the Supreme Court of the United States. Too much blood has been shed in those battles, too much sweat, too many tears, to put at risk that march for progress. And that is what we are doing with this nominee. He failed to demonstrate before the Judiciary Committee that he was committed to the continued march toward progress. He doesn't have to say how he is going to vote on a particular case, but he has to make it clear that he understands what this Nation is all about, why we are the envy of the world with the progress that we have made to knock down the walls of discrimination and prejudice and open up new opportunities for progress for our people. That is the definition of America. Why are we going to put that at risk by putting someone on the Supreme Court who is not committed to that progress? We are not asking that they take a particular position on an issue. That is what is before us. We have a responsibility to try to present this to the American people. Our constituents who are working hard, taking care of their kids, trying to do a job across this country--they are beginning to focus on it. It came to the Senate floor last Wednesday. Today is Monday. What is the next business? What is the next measure on the calendar? Asbestos? Isn't that interesting? Is there anything more important than spending time and permitting the American people to understand this issue? I don't believe so, and that is what our vote at 4:30 is about. If you are concerned and you want a Justice who is going to stand for the working men and women in this country--it is not going to be Judge Alito. If you are concerned about women's privacy rights, about the opportunity for women to gain fair employment in America--it is not Judge Alito. If you care about the disabled, the Rehabilitation Act that we passed, the IDEA Act to include children in our schools, that we passed, that has been on the books for 25 years, the Americans with Disabilities Act that we have passed to bring all of the disabled into our society, if you are looking for someone who is going to be a friend of the disabled--it is not going to be Judge Alito. Finally, if you are looking for someone who is going to be willing to stand up to the executive branch of Government at a time that he is going to exceed his power and authority and the law of this country--it is not going to be Judge Alito. It is not going to be. He is not going to be similar to Sandra Day O'Connor who, in the Hamdi case, said: Oh, no. No President, even in times of war, is above the law in this country. He is not going to be similar to Warren Burger, who said ``No, Mr. President. No, you have to surrender the papers,'' at the time of the Watergate break-ins. ``No, Mr. President.'' This is the time. This is the issue. This happens to be the wrong judge at the wrong time for the wrong Court. I hope this body will give us the time to be able to explain this in greater detail to our fellow Americans so a real vote can be taken. When it is, I believe this nominee will not be approved. I understand my time has expired.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it is a privilege today to join Senator McCain and 25 of our colleagues in submitting a resolution recognizing January 2006 as National Mentoring Month. Business, community, and media leaders have formed a coalition to raise public awareness about the importance of taking time to make a real difference in the life of a child. Under the impressive leadership of the National Mentoring Partnership and the Harvard School of Public Health, the coalition is sponsoring an advertising campaign to explain the benefits of mentoring for children and mentors alike. Each of us has had adults who have made a positive difference for us, family, teachers, coaches, clergy, neighbors or caring friends who were there to listen and offer guidance. Each of us has the opportunity to offer that same gift to young persons today. Each week with many of my colleagues in the Senate, I read with an elementary school student in the District of Columbia in the Everybody Wins program. During our lunchtime sessions, my second grade partner and I share good books and stories. Whether mentors choose reading programs or some other activity, these times are dedicated to listening and responding to the child's needs. Mentors have busy lives, but every child needs to know that we can make time for them. In States across this country there are long lists of young persons waiting for mentors. This important project will connect new mentors to these waiting children and enhance the quality of their lives. I urge the Senate to approve this resolution.

Mr. KENNEDY

Mr. KENNEDY. Reserving the right to object, Mr. President, we certainly hope there will be no objection. My friend and colleague from Connecticut is roughly scheduled on the hour, but that seems to be a reasonable request. We could add the other 5 minutes at the end of the hour if that would be agreeable to the Senator from Virginia.

Mr. KENNEDY. Mr. President, I thank the Senator from Connecticut for his excellent statement. I spoke on this issue yesterday. I wish to include in the Record some letters that I have received from the representatives of the working community. I will include them in the Record. The first letter I am going to include in the Record is a letter I received from the AFL-CIO. Included in the comments are these words: As the enclosed memorandum explains more fully, Judge Alito's decisions and dissents show a disturbing tendency to take an extremely narrow and restrictive view of laws passed by Congress to protect workers' rights, resulting in workers being deprived of wage and hour, health and safety, anti- discrimination, pension, and other important protections. On a number of occasions, Judge Alito's colleagues on the Third Circuit have criticized his opinions for their excessively narrow view of worker protection and civil rights statutes. Judge Alito holds federal agencies to an unrealistically high standard when they seek to enforce worker protection laws, often reversing them on hypertechnical grounds and depriving workers of important protections as result. It continues: Working families are struggling mightily against an assault on our hard-won gains in the legislative arena and at the bargaining table. Wages are being cut, pensions and health benefits are being drastically reduced or eliminated, and job security is vanishing. Now more than ever, workers need the protections offered to them under the laws passed by Congress to protect their pay, benefits, retirement security, and health. Working families need and deserve Supreme Court Justices who understand and respect the importance of hard- fought rights and protections, not Justices who take an unduly narrow view of the law, and of our rights. Judge Alito's judicial philosophy is one that appears at odds with workers' interests. Given the current composition of the Supreme Court, and the absence of even a single Justice with a worker advocacy background, we cannot afford to have the Court further skewed against working families' interests. In recent years, many cases have been decided in the Supreme Court by a one-vote margin. The Supreme Court, decided, by one-vote margins, two cases involving the question of whether certain groups of workers were protected under the National Labor Relations Act. Millions of state employees were deprived of their ability to seek relief in court under the Fair Labor Standards Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act because of decisions decided by a one-vote margin. The Court issued a decision restricting States in their ability to adopt their own workplace safety laws, again by a one-vote margin. By a one-vote margin, the Supreme Court excused employers from having to pay backpay when they are found to have discriminated against union supporters who happen to be undocumented workers. The importance of this nomination to the rights and protections of working families is clear. There is an excellent letter I received from AFSME. It points out: As a judge on the 3rd Circuit Court of Appeals in Philadelphia, Lilts's extreme views can be seen in his rulings where he consistently limits Congress' authority to enact laws that protect the rights of workers and individuals. . . . Then it says: In one such case, Alito denied a female police officer's sexual harassment claims despite overwhelming evidence that she had indeed been victimized. Public employees also have not been spared under Judge Alito. He wrote an opinion in a Pennsylvania case where he stated that the Family and Medical Leave Act did not apply to state employees. Rightfully so, the Supreme Court ruled in disagreement with Alito, upholding the family care provision of the FMLA. Several courts since then, including the very conservative Fourth Circuit Court of Appeals, have concluded that state employees shall have access to the entire range of protections under the FMLA, thus rejecting Alito's earlier ruling. Perhaps most disturbing about Judge Alito's judicial philosophy is his narrow reading of our civil rights laws, notably Title VII of the Civil Rights Act of 1964. . . . It continues: While Alito's 15 years as a Judge raises major concerns, the time he spent as Presidential appointee in the Reagan White House is equally disturbing. When Alito was a Justice Department lawyer in the 1980s he urged President Reagan to veto legislation that would have protected consumers from crooked car dealers. . . . Alito wrote that protecting Americans is not the federal government's job. He said in his memo, ``After all, it is the states, and not the federal government, that are charged with protecting the health, safety and welfare of their citizens. This philosophy is extremely harmful to state employees who deserve to have federal worker protections apply to them as well. That is a letter from Mr. Gerald W. McEntee. There is a similar letter from the United Auto Workers. I ask unanimous consent those letters be printed in the Record at the conclusion of my remarks.

Mr. KENNEDY. Whoever is confirmed to succeed Justice Sandra Day O'Connor will have enormous power to affect Americans' daily lives. We have a constitutional duty to ensure Justice O'Connor's successor has demonstrated a core commitment to upholding the fundamental rights and freedoms on which our Nation was founded. Our decision whether to confirm a Supreme Court nominee affects the rights and freedoms not only of our generation, but those of our children and grandchildren as well. The Court's decisions affect whether employees' rights will be protected in the workplace. I have just referred to three letters that I have received. I have received many others that have been quite specific, pointing out the different areas where the judge has basically turned his back on the employees' rights and workers' rights. They will affect the ability of Americans to be secure in their homes from unwarranted searches and seizures. They affect whether families will be able to obtain needed medical care under their health insurance policies. And they affect whether people will actually receive the retirement benefits they were promised. They affect whether people will be free from discrimination in their daily lives. They affect whether Americans' most private medical decisions will remain a family matter or will be subject to government interference. And they affect whether students will be given fair consideration when they apply to college. They affect whether persons with disabilities will have access to public facilities and programs. They affect whether we will have reasonable environmental laws that keep our air and water clean. There they are. These are the issues which the Supreme Court has ruled on very recently. We wonder about the Supreme Court Justices, what judgments and decisions are they making that are so important to the average family. Why should an average family in America who is watching this debate think this nominee and his decisions are going to affect them? That is a reasonable question. Here you are. Employees, if you are a worker, you may question whether employees' rights will be protected in the workplace. I have just outlined several examples where there have been Supreme Court Justices who have denied workers fair consideration. The ability of Americans to be secure in their own homes from unwarranted searches and seizures, we went through the Groody case, Justice Alito permitting the strip-searching of a 10-year-old girl who was clearly not included in the warrant that was approved by the judge. He was criticized, not by those of us who have expressed reservations about the nominee, but criticized by a judge on the Third Circuit, talking about how Judge Alito's actions were out of order. They affect whether families will be able to obtain medical care under their health insurance policies. Remember the debates we had on the Patients' Bill of Rights? We had legislation that passed here, passed the House. We came very close to getting legislation--doesn't each HMO have to provide the types of coverage they have committed themselves to or do they not? Does that violate ERISA or doesn't it violate ERISA? These are important judgments. But it comes down to whether individuals are going to get the health care coverage they thought they were going to get. That is going to be decided by the Supreme Court of the United States. They affect whether people will actually receive the retirement benefits they were promised. The retirement pensions are in free fall in the United States of America at the present time; absolutely free fall. They say for retirement you need to have your savings--that is part of it--you need the Social Security and Medicare, and you need to have your retirement. Those are the three legs on the stool for a dignified retirement. These are the issues involving pensions. We have now seen 700 pension funds collapse over the period of the last 4 years, and $8 billion that workers had put aside has effectively been lost. These issues will come up. What are the obligations of companies in order to pay back workers? Those issues eventually come before the Supreme Court--whole lifeline savings. Those issues come up before the Supreme Court. Mr. President, I see my friend from West Virginia who had been scheduled during this time. I have had an opportunity to speak previously. There are some additional comments I would like to make, but certainly the Senate looks forward to the words of the Senator from West Virginia. I yield at this time. Exhibit 1 American Federation of Labor and Congress of Industrial Organizations, Washington, DC, December 14, 2005. Dear Senator: The AFL-CIO, a federation of 53 national and international unions representing over nine million working women and men, has reviewed Judge Samuel Alito's record on the U.S. Court of Appeals for the Third Circuit in cases of importance to working families. Based on this review, we are compelled to oppose his nomination to be an Associate Justice on the United States Supreme Court. As the enclosed memorandum explains more fully, Judge Alito's decisions and dissents show a disturbing tendency to take an extremely narrow and restrictive view of laws passed by Congress to protect workers' rights, resulting in workers being deprived of wage and hour, health and safety, anti- discrimination, pension, and other important protections. On a number of occasions. Judge Alito's colleagues on the Third Circuit have criticized his opinions for their excessively narrow view of worker protection and civil rights statutes. Judge Alito holds federal agencies to an unrealistically high standard when they seek to enforce worker protection laws, often reversing them on hypertechnical grounds and depriving workers of important protections as a result. We are also very concerned about Judge Alito's views on the scope of Congressional power, given some of his rulings in this area, and his views about voting rights, given his criticism of the Warren Court and its reapportionment decisions. It is critical that Senators explore these and other areas thoroughly at Judge Alito's upcoming confirmation hearings in order to understand his views and his judicial philosophy on these important issues. Working families are struggling mightily against an assault on our hard-won gains in the legislative arena and at the bargaining table. Wages are being cut, pensions and health benefits are being drastically reduced or eliminated and job security is vanishing. Now more than ever, workers need the protections offered to them under the laws passed by Congress to protect their pay, benefits, retirement security, and health. Working families need and deserve Supreme Court justices who understand and respect the importance of our hard-fought rights and protections, not justices who take an unduly narrow view of the law, and of our rights. Judge Alito's judicial philosophy is one that appears to be at odds with workers' interests. Given the current composition of the Supreme Court, and the absence of even a single justice with a worker advocacy background, we cannot afford to have the Court further skewed against working families' interests. In recent years, many cases have been decided in the Supreme Court by a one-vote margin. The Supreme Court decided, by one-vote margins, two cases involving the question of whether certain groups of workers were protected under the National Labor Relations Act. Millions of state employees were deprived of their ability to seek relief in court under the Fair Labor Standards Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act because of decisions decided by a one-vote margin. The Court issued a decision restricting states in their ability to adopt their own workplace safety laws, again by a one-vote margin. By a one-vote margin, the Supreme Court excused employers from having to pay back pay when they are found to have discriminated against union supporters who happen to be undocumented workers. The importance of this nomination to the rights and protections of working families is clear. The AFL-CIO urges you to oppose Judge Alito's nomination and to insist on a more moderate nominee with a record demonstrating greater respect for workers' rights. Sincerely, John J. Sweeney, President.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, what is past is prologue. Today, we see history repeating itself. In 1978, President Carter signed into law the ``Foreign Intelligence Surveillance Act,'' successfully concluding years of debate on the power of the President to conduct national security wiretapping. As a result of lengthy hearings and consultation, Congress enacted that law with broad bipartisan support. Its purpose was clear--to put a check on the power of the President to use wiretaps in the name of national security. One of the clear purposes of that law was to require the government to obtain a judicial warrant for all electronic surveillance in the United States in which communications of U.S. citizens might be intercepted. The Act established a secret court, the Foreign Intelligence Surveillance Court, to review wiretapping applications and guarantee that any such electronic surveillance followed the rule of law. Since 1979, the special court has approved nearly 19,000 applications and denied only 4. Last year, the Administration reached an all-time-high with the number of applications granted. In the Foreign Intelligence Surveillance Act, Congress established the exclusive means by which electronic surveillance could be conducted in the United States for national security purposes. One of the principal goals of the legislation was to ensure that information obtained from illegal wiretaps could not be used to obtain a warrant from the Foreign Intelligence Surveillance Court. We even made sure that there would be criminal penalties for anyone who failed to comply with these rules. The PATRIOT Act did not give the President the authority to spy on anyone without impartial judicial review--and neither did the Joint Resolution, enacted in 2001, authorizing the use of force against those responsible for the attacks of September 11th. The President seemed to agree. In 2004, in Buffalo he stated categorically that ``any time that you hear the United States talking about a wiretap, it requires a court order.'' He said that ``Nothing had changed--when we're talking about chasing down terrorists, we're talking about getting a court order before we do so.'' Now, however, the President and the administration claim they do not have to comply with the law. Just yesterday, the administration again asserted its constitutional authority to eavesdrop on any person within the United States--without judicial or legislative oversight and it claims that the Congress implicitly granted such power in the Joint Resolution of 2001. But that Joint Resolution says nothing about domestic electronic surveillance. As Justice O'Connor has said, ``A state of war is not a blank check for the president when it comes to the rights of the nation's citizens.'' The bipartisan 9/11 Commission made clear that the Executive Branch has the burden of proof to justify why a particular governmental power should be retained--and Congress has the responsibility to see that adequate guidelines and oversight are made available. The Executive Branch has failed to meet the 9/11 Commissioners' burden of proof. The American people are not convinced that these surveillance methods achieve the right balance between our national security and protection of our civil liberties. These issues go to the heart of what it means to have a free society. If President Bush can make his own rules for domestic surveillance, Big Brother has run amok. If the President believes that winning the war on terror requires new surveillance capabilities, he has a responsibility to work with Congress to make appropriate changes in existing law. He is not above the law. Congress and the American people deserve full and honest answers about the Administration's domestic electronic surveillance activities. On December 22, 2005, I asked the President to provide us with answers before the Senate Judiciary Committee began hearings on Judge Alito's nomination to the Supreme Court. We got no response. The Senate Judiciary Committee is scheduled to begin separate hearings on February 6 on the President's actions. Instead of providing us with the documents the Administration relied upon, the Justice Department continues to circulate summaries and ``white papers'' on the legal authorities it purports to have to ignore the law. It now appears that the President did so on at least thirty occasions after September 11. There is no legitimate purpose in denying access by Members of Congress to all of the legal thought and analysis that the President relied upon when he authorized these activities. Every 45 days, the President ordered these activities to be reviewed by the Attorney General, the White House Counsel and the Inspector General of the National Security Agency. That's not good enough. These are all executive branch appointees who report directly to the President. Congress spent seven years considering and enacting the Foreign Intelligence Surveillance Act. It was not a hastily conceived idea. We had broad agreement that both Congressional oversight and judicial oversight were fundamental--even during emergencies or times of war, which is why we established a secret court to expedite the review of sensitive applications from the government. Now, the administration has made a unilateral decision that Congressional and judicial oversight can be discarded, in spite of what the law obviously requires. We need a thorough investigation of these activities. Congress and the American people deserve answers, and they deserve answers now.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I thank my friend and colleague, the Senator from Vermont. Again, we do many important things in the Judiciary Committee, but none are more important than the selection of our Supreme Court Justices. I again thank the Senator from Vermont for his leadership in ensuring we're going to have a fair, open, appropriate, and a prodding, probing hearing and for the leadership he provides for our committee on so many different matters of importance to the American people. The stakes in this nomination could not be higher. This is the vote of a generation. If confirmed, Judge Alito will have enormous impact on our basic rights and liberties for decades to come. After all, the Supreme Court is the guardian of our most cherished rights and freedoms, and they are symbolized in the four eloquent words inscribed above the entrance of the Supreme Court of the United States: ``Equal justice under law.'' Those words are meant to guarantee our courts will be an independent check on abuses of power by the other two branches of Government. They are a commitment that our courts will always be a place where the poor and the powerless can stand on equal footing with the wealthy and the privileged. Each of us in the Senate has a constitutional duty to ensure that anyone confirmed to the Court will uphold that clear ideal. Contrary to what a number of my Republican colleagues have argued, the Senate's role is not limited to ensuring that the nominee is ethical and possesses a certain level of legal skill and professional experience. To end the inquiry there would be a shameful abdication of our historic responsibility. The selection of a Supreme Court Justice is of great importance to every man and woman in America because the decisions rendered by the Court affect their lives every day. Because of the enormous authority a successful nominee to the High Court will have for decades to come, it is the responsibility of the Senate to determine what constitutional values the nominee holds before he or she is confirmed. Has the nominee learned the great lessons of our Nation's history? Will the nominee be fair and openminded or will his judgments be tainted by rigid ideology? Is he genuinely committed to the principles of equal justice under law? The American people will have no second chance to decide whether this person should be trusted with such awesome responsibility. As their representatives, it is our responsibility to ask the tough questions and demand meaningful answers. For the Senate to become a rubberstamp for the judicial nominees of any President would be a betrayal of our sworn duty to the American people. Taking our responsibility seriously and doing the job we were sent here to do is not being partisan, as some Republicans have charged. In fact, it is those Republicans who are being partisan by defending a nominee's right to remain silent when Senators ask him highly relevant questions about his constitutional values. To ask a nominee for a candid statement of his current belief about what a provision of the Constitution means is not asking for a guarantee of how he will rule in the future. It is every bit as appropriate as reading a Law Review article or a case he wrote last year or a speech he gave as a judge. Unfortunately, on issue after issue, instead of answering candidly, Judge Alito merely recited the existing law but never disclosed his view of major constitutional issues. That is a disservice to the American people, and Senators on both sides of the aisle should find his evasiveness unacceptable. The confirmation process should not be reduced to a game of hide the ball. The stakes for our country are too high. One of the most important of all responsibilities of the Supreme Court is to enforce constitutional limitations on Presidential power. A Justice must have the courage and the wisdom to speak truth to power, to tell even the President he has gone too far. Chief Justice John Marshall was that kind of Justice when he told President Jefferson he had exceeded his war-making powers under the Constitution. Justice Robert Jackson was that kind of Justice when he told President Truman he could not misuse the Korean war as an excuse to take over the Nation's steel mills. Chief Justice Warren Burger was that kind of Justice when he told President Nixon to turn over the White House tapes on Watergate. Justice Sandra Day O'Connor was that kind of Justice when she told President Bush that ``a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.'' We need that kind of Justice on the Court more than ever. It is our duty to ensure that only that kind of Justice is confirmed. Today, we have a President who believes torture can be an acceptable practice despite laws and treaties that explicitly prohibit it. We have a President who claims the power to arrest American citizens on American soil and jail them for years without access to counsel or the courts. We have a President who claims he has the authority to spy on Americans without the court order required by law. The record demonstrates we cannot count on Judge Alito to blow the whistle when the President is out of bounds. He is a longstanding advocate of expanding Executive power even at the expense of core individual liberties. One thing is clear: Judge Alito's view of the balance of powers is inconsistent with the Supreme Court's historic role of enforcing constitutional limits on Presidential power. His consistent advocacy of what he calls the gospel of the unitary executive is troubling. As Steven Calabresi, one of the originators of the unitary executive theory, has said, ``The practical consequence of this theory is dramatic: It renders unconstitutional independent agencies and counsels to the extent that they exercise discretionary executive power.'' But this bizarre theory goes much further. Its supporters concede that without the unitary executive as a foundation, the Bush administration cannot even hope to justify its constitutional abuses in the name of fighting terrorism. Judge Alito refused to discuss his current view of the constitutional limits on Presidential power. But in a speech Judge Alito gave in 2004 to the Federalist Society, he stated that he believed ``the theory of the unitary executive best captures the meaning of the Constitution's text and structure.'' Under this radical view, all current independent agencies would be subject to the President's control. This would destroy the independence of agencies such as the Federal Election Commission, the Securities and Exchange Commission, the Consumer Product Safety Commission, and the Federal Reserve Board. He strongly criticized the Supreme Court's ruling rejecting the theory of unitary executive and outlined a strategy for bypassing it. When Judge Alito made that speech, he had already been serving as appellate judge for 10 years, and he was describing his own view of the Constitution. Similarly, Judge Alito had written earlier that ``the President's understanding of a bill should be just as important as that of Congress,'' and that Presidents should issue signing statements announcing their own legal interpretations in the hope of influencing the way the courts would construe the law. On Executive power, ``Protective of the Executive Branch, the issuance of interpretative signing statements would have two chief advantages. First, it would increase the power of the executive to shape the law.'' This is his view. But as Justice Hugo Black wrote in the steel seizure case, ``the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.'' This is not just a theoretical case. As we all now know, President Bush issued such signing statements on a bill that contained Senator McCain's ban on torture. In that statement, the President reserved the right to ignore the McCain requirements and even asserted that in certain circumstances his actions are beyond the reach of the courts. I think many of us remember that meeting Senator McCain had with the President down in the White House, and the Senator from Arizona thanked the President for working out the language that would be included in the Defense appropriations bill and the President thanked him for his help and assistance in working that out. They both shook hands. This picture was on all three networks that night. Four or five days later, the President signed the bill, and he issued an executive signing statement that said he continued to retain all of his constitutional power, and that he was effectively taking any question of his Executive power out of the hands of any courts in this country. That is a complete reversal to what was agreed to, a complete reversal to what was said, a complete reversal to the understanding of the Senator from Arizona. The Senator from Arizona has spoken about it. That is Executive power. We learned in high school there are two branches of Government, the House and the Senate. They pass the law, the President signs it. It is the law. If he vetoes it, it is not the law. That is not Judge Alito's view. He believes the President, by signing it, has an independent voice and that voice is a voice that should be listened to and heard, a very bizarre view of Executive authority and Executive power. In cases involving claims of privacy and freedom from unjustified searches and seizures under the Bill of Rights, Judge Alito has consistently deferred to the Government at the expense of core individual rights. In the Doe v. Groody case, Judge Alito issued a dissent defending the strip search of a 10-year-old girl without authorization from a warrant. In his majority opinion, Michael Chertoff, former head of the criminal division in the Department of Justice, who is now President Bush's Secretary for Homeland Security, sharply criticized Judge Alito's view as threatening to turn the requirement of a search warrant into little more than a rubberstamp. This is not Democrats saying this; this is President Bush's Secretary of Homeland Security saying this. He was a judge on that circuit, criticizing this kind of action, extension of a search warrant, because of the inclusion of some kind of other document into the search warrant. We understand what Michael Chertoff was saying, and Judge Alito issued the dissent. In Mellott v. Heemer, Judge Alito reported it was reasonable for marshals to pump a sawed-off shotgun at a family sitting in their living room. The family committed no crime. Seven marshals had detained and terrorized a family and friends, ransacked their home while carrying out an unresisted civil eviction. Yet Judge Alito's decision meant the family never got a trial before a jury of their peers. Judge Alito's record in cases involving civil and individual rights shows a judge who repeatedly rules against individuals seeking justices for wrongs by the powerful. In Bray v. Marriott Hotels, a hotel worker claimed she was denied a promotion because she was an African American. The Third Circuit held she was entitled to a trial because the employer falsely stated she was unqualified and had evaluated her qualifications differently compared to White applicants. Judge Alito would have denied her the chance to prove her case. His colleagues on the court--not the Democrats on the committee--his colleagues on the court wrote that his dissent would have eviscerated key provisions of the landmark Civil Rights Act of 1964. His record in other areas of civil rights is also troubling. In the case in which a disabled person sought physical access to a medical school under the Rehabilitation Act of 1973, the court's majority wrote that few, if any, Rehabilitation Act cases would survive if Judge Alito's view prevailed. That is the majority, not Members of the Democratic Party. That is the majority of the court members, looking at his view. There it is--issues on race, issues on disability, individual rights and liberties, those individuals, farmers, and others in a home involving a civil action, who committed no crime, where marshals used gestapo-like tactics. They were denied an opportunity for a court to give a hearing. Judge Alito said no. That is why many Members wonder what kind of an opportunity the average American is going to have. Does Judge Alito tip more to the powerful and the entrenched interests and the Executive authority? Does he give those individuals-- women, minorities, disabled workers--a fair shake? Judge Alito said, let's look at the record. We have looked at the record. We looked at primarily the dissents, as pointed out in the previous discussions. Ruth Bader Ginsburg, who is considered to be a more progressive figure on the Court, Judge Bork, a conservative figure who was proposed for the court, agreed 91 percent of the time. It is in the dissent that we understand whether an individual and individual rights are protected. Those are the indicators. As we have seen from studies--not just from the members of the Judiciary Committee but by independent sources--Knight Ridder, Yale Law School Study Group, even the Washington Post, Cass Sunstein, a distinguished authority and thoughtful individual about constitutional law--all have reached a very similar conclusion that I have outlined here. We will hear on the other side: Well, they are only finding a few cases. We have suggested and included in the record of the Judiciary Committee this happens to be the prevailing position of the nominee. In another case, a jury ruled a woman had provided enough evidence to show that she had wrongly lost her job because of sex discrimination. Ten members of the Third Circuit who heard the case on appeal agreed. Only Judge Alito argued that she had not provided adequate proof of discrimination. Who is out of step? Who is out of step? Who is out of the mainstream? In the Riley v. Taylor case, Judge Alito dissented from a ruling prohibiting the removal of African-American jurors because of their race. It is unbelievable in today's America, in a case involving a minority defendant, that he was willing to ignore the overwhelming evidence that the Government insisted on an all-White jury for a Black defendant. He found no problem with that and with their inclusion for the death penalty. Eventually, that case was overturned, as it should have been. What was going on in the mind? We talk of equal justice under law. We see what has happened to individuals. We see what has happened in this extremely important judicial proceeding. Many of Judge Alito's other decisions demonstrate a similar tendency against the individual. In Rouse v. Plantier, a group of diabetic inmates sued prison officials for being deliberately insensitive to medical needs. The trial court held there was enough evidence for the jury to decide whether the inmates' constitutional rights had been violated. Judge Alito refused to allow the jury to decide whether the Government was responsible for a broad systematic failure to provide the necessary medical group. These inmates had diabetes. We know the dangers of diabetes. One out of four of our Medicare dollars is spent on diabetes. One out of 10 of all health dollars is spent on diabetes. It can be devastating, leading to blindness, or the losing of a limb, more often the leg. They need attention and treatment. This is a serious problem that is increasing in our society. There was a systematic failure in terms of providing for that. They thought it should go to the jury. Was it or was it not a factual issue? The lower court said they ought to be able to go, but not Judge Alito. He reached a different conclusion. In case after case, Judge Alito's decisions demonstrate a systematic tilt toward powerful institutions and against individuals attempting to vindicate their rights. He cites instances where he has decided for the little guy, but they are few and far between. We have an independent duty to evaluate Supreme Court nominees to determine whether their confirmation is in the best interests of our Nation. That is the test. It is a test with which Judge Alito himself seems to agree. He said we should look at his record and decide whether he should be confirmed. I have done so. I have compared the challenges the Court will face in the future with Judge Alito's record and I cannot support his nomination. In this new century, the Court will undoubtedly consider sweeping new claims to expand Executive power at the expense of core individual rights, including detention of Americans on American soil without access to counsel or the court, and eavesdropping on Americans in violation of Federal law. The Court will decide new issues in America's struggle against prejudice and discrimination. It must remain a fair and impartial decisionmaker for ordinary Americans seeking justice. Justice Alito's record shows he should not be entrusted with these vital decisions facing our Nation's Court, and I urge my colleagues to join me in opposing Judge Alito's nomination.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, what is past is prologue. Today, we see history repeating itself. In 1978, President Carter signed into law the ``Foreign Intelligence Surveillance Act,'' successfully concluding years of debate on the power of the President to conduct national security wiretapping. As a result of lengthy hearings and consultation, Congress enacted that law with broad bipartisan support. Its purpose was clear--to put a check on the power of the President to use wiretaps in the name of national security. One of the clear purposes of that law was to require the government to obtain a judicial warrant for all electronic surveillance in the United States in which communications of U.S. citizens might be intercepted. The Act established a secret court, the Foreign Intelligence Surveillance Court, to review wiretapping applications and guarantee that any such electronic surveillance followed the rule of law. Since 1979, the special court has approved nearly 19,000 applications and denied only 4. Last year, the Administration reached an all-time-high with the number of applications granted. In the Foreign Intelligence Surveillance Act, Congress established the exclusive means by which electronic surveillance could be conducted in the United States for national security purposes. One of the principal goals of the legislation was to ensure that information obtained from illegal wiretaps could not be used to obtain a warrant from the Foreign Intelligence Surveillance Court. We even made sure that there would be criminal penalties for anyone who failed to comply with these rules. The PATRIOT Act did not give the President the authority to spy on anyone without impartial judicial review--and neither did the Joint Resolution, enacted in 2001, authorizing the use of force against those responsible for the attacks of September 11th. The President seemed to agree. In 2004, in Buffalo he stated categorically that ``any time that you hear the United States talking about a wiretap, it requires a court order.'' He said that ``Nothing had changed--when we're talking about chasing down terrorists, we're talking about getting a court order before we do so.'' Now, however, the President and the administration claim they do not have to comply with the law. Just yesterday, the administration again asserted its constitutional authority to eavesdrop on any person within the United States--without judicial or legislative oversight and it claims that the Congress implicitly granted such power in the Joint Resolution of 2001. But that Joint Resolution says nothing about domestic electronic surveillance. As Justice O'Connor has said, ``A state of war is not a blank check for the president when it comes to the rights of the nation's citizens.'' The bipartisan 9/11 Commission made clear that the Executive Branch has the burden of proof to justify why a particular governmental power should be retained--and Congress has the responsibility to see that adequate guidelines and oversight are made available. The Executive Branch has failed to meet the 9/11 Commissioners' burden of proof. The American people are not convinced that these surveillance methods achieve the right balance between our national security and protection of our civil liberties. These issues go to the heart of what it means to have a free society. If President Bush can make his own rules for domestic surveillance, Big Brother has run amok. If the President believes that winning the war on terror requires new surveillance capabilities, he has a responsibility to work with Congress to make appropriate changes in existing law. He is not above the law. Congress and the American people deserve full and honest answers about the Administration's domestic electronic surveillance activities. On December 22, 2005, I asked the President to provide us with answers before the Senate Judiciary Committee began hearings on Judge Alito's nomination to the Supreme Court. We got no response. The Senate Judiciary Committee is scheduled to begin separate hearings on February 6 on the President's actions. Instead of providing us with the documents the Administration relied upon, the Justice Department continues to circulate summaries and ``white papers'' on the legal authorities it purports to have to ignore the law. It now appears that the President did so on at least thirty occasions after September 11. There is no legitimate purpose in denying access by Members of Congress to all of the legal thought and analysis that the President relied upon when he authorized these activities. Every 45 days, the President ordered these activities to be reviewed by the Attorney General, the White House Counsel and the Inspector General of the National Security Agency. That's not good enough. These are all executive branch appointees who report directly to the President. Congress spent seven years considering and enacting the Foreign Intelligence Surveillance Act. It was not a hastily conceived idea. We had broad agreement that both Congressional oversight and judicial oversight were fundamental--even during emergencies or times of war, which is why we established a secret court to expedite the review of sensitive applications from the government. Now, the administration has made a unilateral decision that Congressional and judicial oversight can be discarded, in spite of what the law obviously requires. We need a thorough investigation of these activities. Congress and the American people deserve answers, and they deserve answers now.