Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the Los Angeles Times of December 17, carried an important op-ed article, ``American's anti-torture tradition,'' by my nephew, Robert F. Kennedy, Jr. Bobby is senior attorney for the Natural Resource Defense Council, and is also chief prosecuting attorney for Hudson Riverkeeper and president of the Waterkeeper Alliance. In addition, he is clinical professor and supervising attorney at the Environmental Litigation Clinic at Pace University Law School in White Plains, NY. In the article, Bobby recounts the story of GEN George Washington's courageous decision during the Revolutionary War to insist that his soldier's treat British forces and prisoners humanely, even though American civilians and prisoners were treated brutally by the British. Indeed, as a British officer wrote at the time, ``Wherever our armies have marched, wherever they have encamped, every species of barbarity has been executed. We planted an irrevocable hatred wherever we went, which neither time nor measure will be able to eradicate.'' Our early leaders understood that our values are our greatest asset, and our own generation must never forget that fundamental principle.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, as we all know, the Budget Reconciliation Act contains an appalling number of devastating cuts that will hurt millions of Americans. But I do commend the conferees for including the Family Opportunity Act, which will remove the barriers in current law that penalize families struggling to stay together and make ends meet when their children have high health costs because of disabilities. For the past 6 years, Senator Grassley and I have worked with many parents and leaders in communities across the country to reach this milestone. Countless parents, family members, citizens, friends, neighbors, and colleagues face this problem today. As they make very clear, the Nation is failing families with severely disabled children by not giving them access to the health care they need to stay home and live in their communities. Many of them have been on the front lines in raising the Nation's awareness of their plight, and they have been fearless and tireless warriors for justice, and this legislation could not have happened without them. Today, their long wait is nearly over. The Family Opportunity Act is for them. It allows families of children with severe disabilities to purchase health care coverage under Medicaid, without first having to impoverish themselves or give up custody of their disabled children. Almost 1 in 10 children in America has significant disabilities. But many do not have access to even the most basic health care they need, because their private health insurance won't cover them. Often, their needs are treated as ``exclusions'' in their policies--no coverage for hearing aids, for services related to mental retardation, for physical therapy, for services at school, and on and on. That is why this legislation is so important--these children will now have access to these needed services and have a genuine opportunity at least to achieve full potential. When we think of disabled children, we tend to think of them as disabled from birth. But fewer than 10 percent of such children are born with their disabilities. A bicycle accident or a serious fall or illness can suddenly disable even the healthiest of children. Many of them with significant disabilities do not have access to even the most basic health services, because their families can't afford them. No longer will these families be forced to become poor, stay poor, or even do the unthinkable by putting their children in institutions or giving up custody of them, so that their children can qualify for Medicaid. Families of special needs children often have to turn down jobs, turn down raises, or turn down overtime pay to keep a child eligible for benefits under Medicaid. No longer will parents be forced to give up their children or give up being part of our Nation's economy. This bill will change the life of 13-year-old Alice in Oklahoma, who was disabled because of multiple dystrophy. Under this bill, she will be able to have a personal assistant living at home with her family. She will be able to go to her neighborhood school. This bill will change the life of Johnny in Indiana, who has a severe mental illness and needs numerous mental health therapies and drugs. His mother will no longer be forced to give up custody of him in order to obtain the treatment he needs. Her goal of being a productive citizen and keeping her son at home will no longer be denied because her son will now have the health care and support he needs. This bill will transform the life of Abby in Massachusetts, who is 6 years old and has multiple disabilities. Her parents are deeply concerned about her future if the existing buy-in State program for Medicaid is weakened. Without the buy-in, her parents would be bankrupted by her current medical bills. Now Abby and her family will have real opportunity to grow and work and prosper. The legislation also gives States greater flexibility to enable children with mental health disabilities to obtain the health care they need in order to live at home and in their communities, instead of being placed in institutions. It establishes Family to Family Information Centers in each State to help parents find the resources they need to meet the unique health care requests of their disabled children. Six years ago this week, President Clinton signed the Ticket to Work Act into law. That legislation demonstrates our commitment to give adults with disabilities the right to lead independent and productive lives, without giving up their health care. Today we make the same commitment to children with disabilities and their families. These provisions will undoubtedly be among the most important bills passed by this Senate. It closes the health care gap for the Nation's most vulnerable population, and enables families of disabled children to be equal participants in the American dream. It will truly change lives, and I commend my colleagues in both the House and the Senate on both sides of the aisle for their dedicated and their leadership that have made this day possible at long last.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, reserving the right to object, I had requested in the time that was requested 15 minutes. That is clear. Furthermore, reserving the right to object, I ask unanimous consent to amend the resolution to strike division E, the Public Readiness and Emergency Preparedness Act. This is the provision that provides drug companies with unprecedented immunity from liability which was added to the Defense appropriations bill in the conference during the middle of the night. It does not belong in this bill. I ask unanimous consent.

Mr. KENNEDY. Mr. President, will the Chair remind me when I have 3 minutes remaining? Mr. President, over these last several months in the Senate we have addressed the issue of a potential epidemic, the pandemic flu. There have been two areas of leadership. One has been in our HELP Committee under the chairmanship of Senator Enzi and Senator Burr, where we have tried to work out a whole approach to deal with the area of epidemics and bioterrorist attacks, and another with the leadership of Senator Harkin, who had asked that we commit some $8 billion to be able to purchase vaccines and also antiviral drugs for influenza. I attended the NIH announcement by the President of the United States when he actually requested $7.1 billion to prepare for a flu pandemic. Those funds were going to be used for public health, first of all, to be able to detect flu outbreaks overseas; secondly, to be able to detect them here at home; then to be able to build containment capacities, what we call ``surge'' capacity; and, also to have a generously funded vaccine program, and also an antiviral program. That is really where we were before the Defense appropriations bill. A number of us on the HELP Committee had a series of negotiations to try to make a bipartisan recommendation to the Senate. We did so on pensions, on higher education, on workforce, and on Head Start. We were able to do so in a number of different areas. And we were moving ahead toward making a recommendation in issues related to the purchase of vaccines and antivirals. There are two important issues to consider with the purchase of pandemic influenza vaccine and antivirals. One is the danger to an individual that is going to take those vaccines or antivirals; and the other is the risk those dangers raise for the companies that produce them. One is the compensation issue, and the other is the liability issue. We have dealt with these issues on several occasions. We dealt with them with respect to the swine flu. We dealt with these issues with smallpox. We dealt with these issues for childhood vaccines. One thing we know from experience is, if you do not have an adequate compensation program, no matter how much money you put in for the purchase of vaccines or of antivirals, the program is not going to work. There has to be an assurance that, if first responders and others are going to go out there and take their chance with these new vaccines or other drugs, that if they become grievously ill or sick or even die there will be some compensation for them and for their families for lost wages and medical costs and the like. And there has to be the assurance to the first responders and others that those vaccines are not going to be produced negligently. Otherwise, they will not take the risk of using the vaccines or drugs. That is the framework. We have to ask ourselves, for the liability and compensation provisions that have been put in the Defense appropriations bill, how do they line up with what has been successful in the past, with bipartisan efforts? These provisions fail in every respect of the word. First, there is a compensation program that is not funded. It is not funded. It will depend upon future appropriations. If you want to buy a pig in a poke, buy that particular provision. All you have to do is ask my friend from Utah, Senator Hatch, how we have funded the compensation program for the downwinders. Over a long period of time, we did not have the required payments for them, when we know, as a direct result of governmental action, we adversely affected tens, even hundreds, of thousands of downwinders in the State of Utah and in the West more broadly. We have not measured up to our responsibilities to them, and the compensation program before us now is no more adequate. And as a consequence, this compensation program is not going to work. Not only that, what have we done with regard to the manufacturers? What kind of immunity have we given to them? It's really extraordinarily broad, effectively complete. What they call the ``bad actor'' provision describes the circumstances in which the immunity from liability fails. And it's really very narrow, because a company's actions have to meet a very narrow definition of willful misconduct. Page 12 of this 40-page liability section says in order to have any kind of liability, you have to have willful misconduct. This is an act or omission that is taken intentionally to achieve a wrongful purpose; knowingly without legal or factual justification; and in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit. As if that isn't clear, and narrow, enough, on the same page, underneath this language, is a rule of construction. This rule says that this language establishes a standard for liability more stringent than a standard of negligence in any form or recklessness. So companies are not deterred from acting recklessly, or with gross negligence. Now that is pretty narrow, but apparently it isn't narrow enough. Right here on page 12, it says that the Secretary of Health and Human Services, in consultation with the Attorney General, must issue regulations that further restrict the scope of actions or omissions that may qualify as willful misconduct. So ``willful misconduct,'' which should just mean intentional, isn't good enough. Well, at least we have solved that, right, to make it as narrow as possible? Wrong. Go down to the standard of evidence. The bill changes the standard of evidence in the various trials, to ``clear and convincing evidence.'' That is at the bottom of page 13. The bill defines a very narrow standard of willful misconduct, and it sets a very high standard of evidence. Shouldn't that be enough? Wrong. You don't have a case against a company under these provisions unless the FDA begins an enforcement case against that company. So if FDA goes ahead and begins the case, you have a chance, right? Wrong again. FDA has to bring it and conclude it successfully before you have any right to proceed with your case. A person might think, I am not very satisfied with how this liability provision has worked, maybe I will appeal to the courts of this country, right? Wrong. There is absolutely no, no, no, no judicial review when the Secretary of Health and Human Services grants a company immunity by issuing a declaration. No judicial review of that. And there is no judicial review of FDA's decision not to bring an enforcement action. So it is whatever the administration says, whatever the Secretary says, whatever the head of the FDA says, with changed and gimmick rules. This is a sham. There is no possibility of liability here. Now, we would say, OK, this is bad, but this liability protection is limited to just a few products, right, products that few of us will ever have to use? It actually applies to products--vaccines, drugs, diagnostic tests--for epidemics. We rarely have to worry about epidemics, right? Well, who defines ``epidemics''? It is rather interesting who defines epidemics. Senator Domenici says diabetes is an epidemic. Senator Frist himself says meth abuse is an epidemic. Bill Frist himself said obesity is an epidemic. Senator Bond says arthritis is an epidemic. This week in Newsweek Magazine, the Secretary of Health and Human Services, who is going to enforce this provision, says this: We're seeing an epidemic of chronic diseases. Obesity is just one example. So how many diseases are going to be considered epidemics? A lot, perhaps, but at least we say that is all right, because it is just going to apply to drugs for that particular epidemic disease, right? Wrong again. This provides the same kind of liability protections for any of the drugs or anything else that deals with the side effects of the products for that epidemic disease. My goodness. Generally around here we measure who the winners are and who the losers are. And we have seen over the last year and a half how the drug companies come out on top, time and time and time and time again. But never, never, never, ever, ever like they have with this sweetheart deal that was stuck into this conference report after the assurances had been given to the conferees that there were no provisions in it with regard to liability. The Medicare drug law made it illegal for the Government to negotiate prescription drug discounts for seniors. They do it in the VA system, and drug prices for the VA are lower. But we weren't able to permit the government to negotiate drug prices for seniors. The Republican Congress blocked legislation to allow importation of safe and less expensive drugs. And now we find in this biodefense and pandemic flu provision liability shields for companies that make dangerous drugs, with no compensation for injured patients. That is a scandal. It has no business being in this bill. The Judiciary Committee requested an opportunity to examine it. It was rejected. We have had no hearings on this particular provision. It is the wrong thing to include in this legislation. Let me share what one of our colleagues has said about childhood obesity: The responsibility for this growing epidemic rests with us--the American consumer. We need to get serious about fighting fat. Let me cite you the language of the provision, the broad definition on page 31 of what gets liability protections under this bill. It says: ``Qualified pandemic or epidemic product'' means any drug, biological product, any device to diagnose, mitigate, prevent, treat, or cure a pandemic or epidemic or limit harm from the pandemic or epidemic. And the term includes not only those products, but any other product, any other product that is produced to deal with the side effects of those products. This is a scandal. It is a giveaway. It is outrageous. It is rare, if ever, that we give this kind of privileged status to any industry in the country, and give this kind of authority and power solely to one branch of the Government. There is no second guessing. There is no judicial review. There is no further involvement of the Congress. That is basically and fundamentally wrong and we are asking and committing $3.7 billion to go down this road. It is outrageous and it is wrong. I am sure that as soon as the Secretary of Health and Human Services issues what is called a declaration for a pandemic or epidemic to give immunity from liability to vaccines or other products, there is going to be a charge to the courts. The constitutionality of this provision is going to go into the Federal district courts and the circuit courts of appeal. Included in the Record is legal authority that I believe shows that this provision, the way it is drafted, is absolutely unconstitutional because of the indefiniteness of the criteria under which the executive branch makes decisions and because there is the real possibility and likelihood of serious injury to individuals without any right to go to court or for judicial review of declarations. This provision is going to be challenged along the way. We want to tell those in the bio industry--and they are healthy in my State and I have worked with them--if you want to work with us to get an effective compensation program, as we did in the past with smallpox or childhood vaccines, if you want to get an effective provision to deal with liability, one that is responsible and that responsible drug manufacturers will welcome, then we are more than willing to welcome you and to work with you. But I think we can be certain that this provision will not be effective, and it is misleading the American people to say we are making a downpayment in the development of vaccines for the reasons I have mentioned this evening. Slipping a provision into a major spending bill late at night at the end of Congressional session is a trick to shield from public debate a provision that is so wrongheaded that it would never stand public scrutiny. The Republican congressional leadership has snuck yet another special favor to drug companies into the defense appropriations bill. It is an outrageous provision that has nothing to do with protecting our troops, and it should be dropped from the bill. This provision allows drug companies to flagrantly disregard basic safety measures in making a broad range of drugs or vaccines, while giving patients who are injured by shoddy products only an empty promise of compensation. It is cynical to claim that this is what is needed to deal with avian flu. Drug industry advocates will say that this debate is about trial lawyers, and we have heard phrases like ``jackpot justice'' and ``runaway juries,'' and tales of endless lawsuits against the firms that make the vaccines. But that couldn't be further from the truth: Senator Dodd and I offered a plan that included important legal protections for drug companies that make experimental flu vaccines and other drugs needed to respond to a pandemic or a bioterrorism attack as well as a compensation program modeled after the Vaccine Injury Compensation Program that already works well for childhood vaccines. Our proposal follows the successful examples of the past. For swine flu, for the smallpox vaccine and for childhood vaccines, the Government has set up a way to compensate the injured. Whenever Congress has provided an alternative to liability in the past, there has always been an assured means for patients to receive compensation. The current proposal violates that past practice. It twists and turns the law to stack the deck against patients, and abrogates basic principles of judicial review. It is no wonder the provision's authors hid it from public debate and didn't let the Senate Judiciary Committee even look at the proposal before it was jammed into the massive conference report. If they had allowed our Judiciary Committee to examine this proposal, we would have quickly seen its constitutional flaws. I received a detailed analysis of this provision from Professor Erwin Chemerinsky, who is the Alston and Bird Professor of Law and Political Science at the Duke University School of Law. According to his analysis, the provision gives the Secretary of HHS ``unfettered discretion . . . to grant complete immunity from liability'' while also ``depriving all courts of jurisdiction to review those decisions.'' Professor Chemerinsky has found three areas in which the provision infringes the Constitution. First, the provision delegates powers to the executive branch without the limitation of a prescribed standard. It is an extraordinarily broad delegation--the Secretary decides when to declare emergencies, what diseases or threats to health are covered, which drugs or products will be immunized, which individual citizens lose their right to go to court and recover for injuries caused by the drugs or products, the geographic area in which these rules will apply and the length of time they will apply. This violates the nondelegation doctrine, which says that Congress my not delegate its legislative authority to the executive branch without clear guidelines. Second, it violates federalism principles by improperly intertwining Federal and State law, making a new Federal cause of action that depends on State law. It also makes the Federal cause of action depend on the FDA or the Attorney General taking an enforcement action. It is a violation of due process, however, to allow official inaction to prevent a person from pursuing his or her rights in court. Third, the provision completely prohibits judicial review of declarations that provide drug companies with immunity. The U.S. Supreme Court has repeatedly stressed that the preclusion of all judicial review raises ``serious questions'' concerning separation of powers and due process of law. Judicial review of government actions has long regarded as ``an important part of our constitutional tradition'' and an indispensable feature of that system. I reserve whatever time I have remaining.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I ask unanimous consent to have a letter from Mr. Ed Tong printed in the Record for the consideration of the fiscal year 2006 Defense Authorization Act. The letter reflects the view of a supporter of the minority small business contracting program, which is reauthorized in this bill.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the Christmas spirit was nowhere to be found tonight on the floor of the United States Senate as Republicans rushed through unconscionable cuts to the programs that American families deserve. This conference report affects the lives of every single American, and it lets them down. It fails our commitments to the education of our children, to our health care, to the poor, and to our jobs. At a time when we should be moving forward, and helping families meet the challenges of higher costs, this conference report moves us backward. Education Parents know that education is a critical factor in making the American dream a reality for their children. An educated citizenry also makes a strong Nation possible. We cannot compete in the world without skilled workers. We cannot maintain a strong defense without a skilled and educated military. Once again, the United States has been presented with a global challenge, as we were when the Soviets launched Sputnik in 1958. In order to face this challenge with confidence, we should invest in the transforming power of education. That's not what this conference report says. This conference report says that education is not a priority. It says global competitiveness is not a priority. It says basic fairness is not a priority. It says the American dream is not a priority. In the face of this global challenge, this conference report does not invest more in education. In fact, for the first time in a decade, this conference report cuts the education budget. As we learn more about the critical importance of early education, as our elementary and secondary schools struggle to help our children meet higher standards, as a college degree is becoming an imperative, and as the cost of that degree is skyrocketing, the Federal budget for education is actually going down. If our country is to remain strong in this rapidly changing world, our economy must work for everyone, and every American must have an equal opportunity to succeed. No Child Left Behind is not just a political slogan. It's a solemn pledge to every parent and every child in America. At a time when requirements under the law are more demanding than ever, this conference report cuts funding overall for No Child Left Behind programs by $1 billion, for a total that is $13.4 billion less than promised in the law. Over 3.2 million children will be left behind. Next year, schools have to raise the bar for adequate yearly progress, administer tests in reading and math on an annual basis, and ensure that all teachers are highly qualified. This conference report tells them they're on their own. Title I--the key NCLB program, which targets disadvantaged students-- is cut for the first time in 13 years. Title I funds will be $28 million lower than last year, and 160,000 fewer children will be served. Funding to Massachusetts schools will be cut more than $4.3 million. The conference report cuts Head Start funds by $68.5 million, leaving 750,000 eligible preschoolers without services, and dropping from the program 9,500 children who are currently enrolled in Head Start classrooms. It slashes the Even Start family literacy program, taking services away from nearly 35,000 children. The conference report cuts funds for after-school programs, denying after-school programs to 13,000 children currently enrolled. The conference report also cuts funds to keep our schools safe and drug- free. With the first cut to special education funding in a decade, this conference report moves backwards on our commitment to disabled students. The Federal share of the cost of educating students with disabilities actually drops from 18.6 percent last year to 17.8 percent this year. The funding in the report is more than $4 billion short of the amount promised just 1 year ago when we passed the IDEA Improvement Act. At a time when American students are performing below the international average in math and science, the conference report cuts $13 million in funds for the Math and Science Partnerships at the Department of Education, leaving funding well below half of the amount promised in No Child Left Behind. At a time when technology is more and more prevalent in our lives and in our economy, this conference report continues the bewildering downward trend in educational technology funding. In fiscal year 2004, the program was funded at almost $700 million. This conference report includes $248 million, a 50 percent cut since last year and just over a third of the 2004 funding. At a time when college costs have skyrocketed 46 percent since 2001, and almost 400,000 college-ready students do not go to a 4-year college because of financial need, this conference report provides no increase in student aid. It leaves Pell grants frozen in place for the fourth year in a row. Jobs Just as this conference report leaves millions of children behind, it also leaves millions of American workers behind. Close to 8 million Americans are unemployed, and most remain unemployed for 18 weeks or more. The picture is so bleak that many workers have given up hope of finding work altogether. The real unemployment rate is almost 9 percent when these discouraged workers are counted. Workers affected by the recent storms in the gulf are particularly at risk. Hundreds of thousands of gulf coast workers continue to struggle to find work in the wake of Hurricanes Katrina and Rita. Twenty-five percent of Katrina evacuees are unemployed, including 30 percent of those evacuees that have been relocated across the country. African- American and Hispanic evacuees fare even worse, with an overall unemployment rate of about 43 percent. Thus far, a total of 502,000 initial claims for unemployment benefits can be traced to the two storms. Yet, the conference report would cut funding for unemployment insurance and employment services offices that help jobless workers around the country. The conference report also cuts job training, as many workers struggle to improve their skills in order to secure good jobs. These illogical steps are an insult to those struggling to recover from our Nation's greatest national disaster and those struggling to meet the challenges of a global economy. In addition, as we continue the long process of rebuilding the gulf coast, thousands of relief and recovery workers are facing toxic working conditions. Workers cleaning up in the aftermath of the storms are being exposed to hazardous chemicals, oil and sewage contaminated waters, mold, and other hazardous substances. Even outside of the gulf coast region, death rates among Hispanic and immigrant workers continue to be alarmingly high. Yet, our Government will be doing less to protect the lives and health of our workers. The small, 1.8 percent increase that the conference report provides for funding the Occupational Safety and Health Administration is more than eaten up by inflation and won't be enough to maintain current levels of enforcement and training. The conference report also short-sightedly ignores the future needs of health care workers. We are facing a looming threat of a pandemic flu epidemic, yet the conference report prohibits the Department of Labor from enforcing key safety standards to protect health care workers from tuberculosis. These are very basic measures that would help protect healthcare workers from all deadly infectious diseases, and it is unconscionable to bow to special interests at the expense of those who will be on the front lines of our battle against this public health crisis. In addition to threatening the safety of American workers, the conference report also threatens their job security. It is hardly news to any of us that globalization is rapidly creating a single global workforce. Now more than ever, the jobs of American workers are at risk due to the poor wages and working conditions in other parts of the world. It's critical that we invest in efforts to improve working conditions around the world, for the sake of all workers, including our own. Yet, the conference report slashes the budget for the International Labor Affairs Bureau, ILAB, by 22 percent--from $93 million to $72.5 million--threatening our ability to protect American jobs and protect the basic rights of workers and children across the globe. Health The conference report also fails to protect American families from public health catastrophes. Congress has few higher priorities than protecting the American people from the deadly strain of influenza that is threatening the world and could take the lives of millions of Americans and damage the health of millions more. The threat from this deadly new disease has been compounded by our inattention and failure to prepare. For years, public health experts sounded warning after warning about the devastation that a flu pandemic would bring, but year after year, we failed to respond to this deadly threat in its earliest stages. Canada, Australia, Britain, Japan, and other nations released plans long ago. They're implementing their plans now, but the Bush administration has put out a plan for only one Federal agency. A response plan for the Department of Health and Human Services is a critical first step, but even that plan is incomplete. It's missing the actual operational plans for responding to a pandemic. The President has called, however, for a significant investment in preparedness. I attended his speech at NIH, where he urged that $7 billion be appropriated immediately for preparedness. We still have time to avert the serious consequences that a pandemic would bring, but only if we act now to begin improving our readiness. The Senate heeded the call to action by unanimously approving an amendment for $8 billion in preparedness funding offered by Senator Harkin. But the Republican leadership isn't on board. They stripped the $8 billion amendment out of this conference report, and provided only half that amount in the Defense Appropriations conference report. These irresponsible cuts will mean that critical programs will have to be delayed. Which parts of our response do our Republican colleagues think we should delay? Production of new vaccines? Stockpiling of flu medicine? Support for hospitals and health agencies preparing for the pandemic? I'd like to hear them explain to the American people which of these activities they think are unimportant, which of these priorities can wait, and which are not needed if disaster strikes. This conference report also means that we will fail to capitalize on the promise of this century of the life sciences. With the 1 percent across the board cut, funding for NIH will decrease. This has happened only four other times in NIH history. This is woefully inadequate to maintain our tradition of research excellence and breakthrough medical science. This is the lowest NIH funding level in 35 years and the research and development budget fails to keep up with inflation. These budget cuts will mean that four of five innovative new ideas will be ignored. Over 500 new research grants will fall by the wayside. It's unbelievable that with the threat of a pandemic looming over America, the Republican Congress is denying the resources we need to discover new, life-saving treatments and cures. Not only does the conference report not include funding for the avian flu preparedness, funding that would help to improve State and local preparedness against bioterrorist attacks was cut by over $96 million. As we know, maintaining the health of our Nation is not limited to emergency preparedness. Providing basic health services to the most vulnerable Americans and health promotion, and disease prevention are also vitally important. But this conference report cuts critical health promotion and prevention programs at the CDC will be cut by $307 million and HRSA programs are slashed by $754 million. This conference report funds community health centers, that serve as a safety net of care for the most vulnerable, at less than half of the increase passed by the Senate, while eliminating the Healthy Communities Access Program which provides funds for health care providers, community-based organizations and local government to coordinate and strengthen health services for the poor and uninsured members of their communities. Funding is also cut for critical health professions training programs that address the shortages of providers and train them to deliver care in underserved areas and to serve the 46 million Americans who lack health insurance--often in community health centers. Funding for critical health professions training programs that encourage diversity in the health professions and train health care providers that will deliver care in underserved areas are cut 52 percent and training for geriatric medicine was cut by 100 percent. With a 1 percent across the board cut, several programs, including family planning and HIV/AIDS prevention programs, will now receive a decrease in funding, despite the growing need for these services.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, this holiday season is a time for families to come together, reflect on the year's challenges and opportunities, and give thanks for all that has been accomplished. It is also a time to take action to help those less fortunate. The year 2005 was a year of great challenges, and among the greatest were the hurricanes that ripped through the gulf coast. The magnitude of Hurricane Katrina was unprecedented. Its aftermath brought us images that we thought we would never see in America--lives lost, communities destroyed, families uprooted. The toll was particularly devastating for hundreds of thousands of young children and students torn from the surroundings and institutions they depend on, and I'd like to spend a few moments discussing this aspect of the recovery effort. We are all familiar with the devastation that past hurricanes have caused. Some have temporarily closed schools and colleges. In the aftermath of Hurricane Andrew in 1992, the Army, Navy, and National Guard joined in helping to repair classrooms and reopen school doors in about 3 weeks. Last year, Florida schools damaged by Hurricane Charley reopened within a month, and students were quickly back on track in their classrooms. But Hurricane Katrina caused vastly greater devastation, especially in Louisiana, Mississippi, and Alabama. More than 700 schools and 30 colleges and universities were damaged or destroyed. Almost all have been closed, at least temporarily, and many will not open until January at the earliest. Some are in danger of never reopening. The number of students affected is staggering. More than 370,000 elementary, middle, and high school students were displaced. Over 100,000 college students were affected by the disaster. And 18,500 Head Start or Early Head Start children were uprooted from programs. These are not just statistics. These are real people whose lives have been changed forever. Hurricane Katrina reminded us that we are all part of a single American family. And we have a responsibility to help members of that family when they are in need. For too many weeks, our friends in the gulf region have waited for Congress to provide help in rebuilding their lives and their communities. Today, I am pleased that we will take an important step in actually providing the assistance so obviously needed. The Katrina and Rita relief provisions in the conference report passed by the Senate today include several proposals developed by Senator Enzi and myself to help the children and students affected by these hurricanes. It includes assistance to ensure that the youngest children uprooted by these tragic storms receive the services, help, and support they need. The bill dedicates funding to provide access to Head Start preschool programs and child care. It provides much-needed relief for the public and private schools across the country that generously opened their doors to schoolchildren whose lives were turned upside-down by these disasters. These schools provided classrooms, teachers, and services for all of these students, and did so without a penny from the Federal Government. It also includes relief for colleges in the affected areas, and ensures that college students displaced by the hurricane will receive the financial aid they need to stay in school and continue working toward their degree. Several colleges in Louisiana are in danger of closing their doors for good, unless they receive this critical assistance soon. The funding approved by the Senate today may not be enough to guarantee their future, but at least it offers much needed support. This relief is long overdue, and I commend the Senate for taking action. When these devastating storms struck, the entire nation responded in a way that is as caring and as generous as the American spirit. Thousands volunteered to help. Families opened their homes. School districts across the country accommodated displaced students in their schools. Colleges and universities graciously opened their doors. The Nation is grateful to all who did so much to help respond in the tragic aftermath of the hurricanes. We are grateful to the school principals and superintendents and the college presidents and deans who served as first-Responders and helped so many students continue their education. But these educators need help as they struggle to accommodate the students. Congress must do its part to help these devastated communities get back on their feet and enable students to return to their schools. We also need to help the institutions that are laboring so hard to provide a safety net for these children and their families. That is why the proposals in this conference report are so important. This funding will rehabilitate and strengthen the educational institutions that serve and assist children and students affected by Hurricanes Katrina and Rita, and help meet the needs of early education, elementary and secondary education, and higher education. Thousands of young children affected by the storms need to return home to safe and healthy settings. They need good early childhood programs in adequate facilities. Their families need health and counseling services to cope with the trauma brought on by the storms. The bill facilitates enrollment in Head Start and Early Head Start by waiving income eligibility and other requirements, so that families affected by Katrina will be able to enroll their children more easily. It provides $90 million for affected Head Start centers to provide preschool opportunities to displaced students. It also provides additional support and guidance to meet the emotional needs of children and their families. We are reminded by this disaster that schools are the heart of local communities across America. When schools open, families return, businesses return, and lives begin to return to normal. So I am pleased that the report provides $750 million for special school reopening grants to districts and communities significantly affected by Hurricane Katrina. These grants will aid in the effort to retain highly qualified teachers, recover lost data, establish temporary facilities, and take other steps necessary to reopen the schools. The bill also responds to the efforts of schools in Texas, Georgia, Florida, and other States that opened their doors to displaced students. It provides $645 million for public and private schools that have enrolled displaced students, in order to ease the transition of students into new schools, support basic instruction, purchase textbooks and materials, and temporarily expand facilities to avoid overcrowding. Both public and private schools can benefit from this aid, but the proposal sets ideology aside and rejects the attempts by the House and the administration to provide this aid in the form of vouchers to parents through a 1-800 number. Instead, the bill uses the mechanisms of current law to provide aid for students in private schools through the public school system. The funds can only be used for the same list of allowable educational services as for public schools and so cannot and should not be used for religious activities. It makes clear that all of the aid is temporary, and is being provided in response to the extraordinary circumstances resulting from these disasters. It is not a precedent for future policymaking. In addition, to help meet the demand for qualified teachers, the bill authorizes the Secretary of Education to encourage states to extend temporary reciprocity for the certification of teachers and para- professionals across state lines. Teachers certified as highly qualified in one state should be recognized as meeting this standard in other States as well. To ease the burden faced by colleges and universities in the declared disaster area, the bill also authorizes the Secretary of Education to waive various Federal reporting requirements. It includes $200 million for student aid and waives the institutional matching requirement for students affected by the hurricane. These funds can also be used to help institutions in Louisiana rebuild their facilities and welcome their students home. Our priority should be to help these colleges and universities move into the future. This relief package is a welcome step to help life return to normal for the hundreds of thousands of children and students uprooted by these deadly storms. We begin today to help the gulf coast communities rebuild and re-open their schools and colleges. We need to continue this important work in the coming weeks, by assessing the ongoing needs of those affected by the hurricanes, and doing all that is necessary to help them rebuild their lives.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I welcome this opportunity to congratulate our outstanding mayor in Boston, Tom Menino, on his reelection last month. The people of Boston love Tom, and for good reason. Running for his fourth full term as mayor, Tom received an incredible 68 percent of the vote on election day, an extraordinary new mandate to continue his leadership that has meant so much to our city. Tom is Boston's modern FDR, and at the end of this term he will become the longest serving mayor in Boston's 375-year history. It is a distinction Tom Menino has earned through his unwavering dedication and commitment to the people of Boston. For 12 years, Mayor Menino has worked day in and day out to unite our diverse city, make its neighborhoods and communities stronger, create fertile opportunities for businesses, and improve the quality of life for all the people of Boston. He has fought to protect and expand housing for low-income families in the midst of the Nation's tightest housing market. He has never stopped working to meet the needs and protect the basic rights of every resident of our city--regardless of their race or background. He has been a pioneer in education, creating Read Boston to help every child read at grade level by third grade and the Afterschool for All partnership so that learning doesn't end once school lets out for the day. He has fought to close the achievement gap for all of Boston's children and made Boston the first urban school district to have every school wired to the Internet. Tom Menino has proven that America's great urban areas can succeed and thrive in this new economy, at a time when more and more of our Nation seems headed for the suburbs. Tom modestly describes himself as an urban mechanic, but it is far more accurate to say that he is an urban genius. Each day, he adds new proof that there are second and third acts for America's cities in our modern Nation. Above all, Mayor Tom Menino has always worked tirelessly to ensure that Boston's brightest days lie ahead and that our city will continue to build on its incomparable history. Tom has worked especially closely with our local colleges and universities to make certain that Boston remains the most prestigious destination in America for young men and women seeking excellence in higher education. He has welcomed our burgeoning biotech and medical research sectors in order to guarantee that Boston stays at the cutting edge of these highly promising industries of the future. This new century may well be the century of the life sciences, and Tom Menino is making sure that Boston helps write that history. Next year marks the 100th anniversary of the inauguration of another visionary Mayor of Boston, my grandfather, John F. Fitzgerald, whose love of our city was legendary and whose commitment to progress was unchallenged. Grampa Fitzgerald might not immediately recognize modern Boston as his beloved hometown, but he would be thoroughly at home with its vitality and its spirit of innovation, progress, and opportunity. Those qualities he fought so hard for a century ago are alive and well today, an he would be grateful that the city he loved so dearly is now in the capable hands of Mayor Tom Menino. In the years ahead, I look forward to continuing to work with Mayor Menino to find solutions to the real and often daunting challenges facing Boston and all of urban America. No one is more committed to solving the big issues than Tom Menino. He and his extraordinary wife Angela have made a remarkable team for Boston, and all of us in the city look forward very much to more of the unique brand of Menino leadership in the years ahead.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, many of us had hoped the Senate would take up the Intelligence authorization bill and allow us to offer an amendment to require the Director of National Intelligence to make the presidential daily briefs on Iraq available to the Intelligence Committees of the Senate and House, beginning with the last term of the Clinton administration and ending on the first day of the war in Iraq in 2003. Unfortunately, an unidentified Republican has a hold on the bill to prevent Senate action unless the amendment is withdrawn along with two other amendments on secret detention facilities. It is obvious that some of our Republican colleagues are bent on avoiding the truth about the war. To prevent debate on this all- important issue, the Republican majority is apparently willing to let the whole intelligence bill fail. I don't agree with that tactic. It is a blatant coverup. President Bush has repeatedly claimed in recent weeks that Congress had access to the same intelligence he did in deciding to go to war in Iraq. As President Bush specifically stated in his Veterans Day address in Pennsylvania last month, ``. . . more than a hundred Democrats in the House and Senate--who had access to the same intelligence--voted to support removing Saddam Hussein from power.'' He repeated the claim on November 14, November 17, and again in his December 14 address to the Nation on the war in Iraq. In fact, he had made the same statement 98 times between March and October 2004, when his decision to go to war was under serious challenge in the presidential election that year. It is hardly surprising, therefore, that the President is now dusting off the same talking points today, when his decision to go to war is again under serious challenge. Vice President Cheney and National Security Advisor Hadley have made similar claims. How they could all make such an obvious false claim is beyond belief. It is bad enough that they distorted the intelligence on the need for the war. Now they are blatantly distorting the facts about how much access Congress had to the intelligence. Someone on the White House staff obviously needs to correct the President's talking points before he parrots them in another speech. President Bush should have taken a close and comprehensive look at the intelligence, rather than building a case for war based on cherry- picked intelligence It is not enough to recognize now that the intelligence was not accurate. Whatever flaws existed in the intelligence were far outweighed by the devious way the administration manipulated the intelligence to support its preconceived desire for war and ignored the serious doubts that we now know undermined the intelligence. The administration claims the intelligence wasn't deliberately distorted to justify the war. But how can they possibly pretend that Congress had access to that intelligence? The White House has access to thousands of intelligence documents that Congress never sees. According to a December 14 report by the Congressional Research Service, ``The President, and a small number of presidentially-designated Cabinet-level officials, including the Vice President--in contrast to Members of Congress--have access to a far greater overall volume of intelligence and to more sensitive intelligence information, including information regarding intelligence sources and methods. They, unlike Members of Congress, also have the authority to more extensively task the intelligence community, and its extensive cadre of analysts for follow-up information.'' But, the principal document that Congress doesn't see is the presidential daily brief, the so-called PDB, which is prepared specifically for the President. It contains very important classified intelligence, and equally important information about the credibility of the intelligence. It is therefore an extremely valuable document. President Bush receives the PDB every morning and is given an oral briefing on it by top intelligence officials. The practice began in the Johnson administration and is intended to give each President a detailed overall view of national security concerns, including terrorist threats against the United States. As the administration well knows, Members of Congress certainly do not receive this daily briefing document. In fact, when Congress has sought copies of PDBs, the requests have been denied. In the case of Iraq, as part of its investigation of the pre-war intelligence, the Senate Intelligence Committee specifically asked to review the PDBs relevant to the key issues of Iraq's weapons of mass destruction and Saddam Hussein's links to terrorists. The White House flatly denied the request. The committee is now working on the second phase of its investigation, which is whether the administration distorted the intelligence on Iraq in order to strengthen the case for war. So far, however, instead of providing the PDBs as part of an effort to find the truth, the White House continues to hide behind a veil of secrecy by refusing to disclose these briefs. It is difficult to believe that there is any sound national security reason for the administration to continue stonewalling Congress by denying access to these PDBs. The obvious explanation is coverup. Members of the Silberman-Robb Commission appointed by the President to examine pre-war intelligence were given access to articles within PDBs on Iraq's weapons of mass destruction programs. Four of the 10 members of the 9-11 Commission were given PDB articles they requested. If these commissioners were given access, Congress should have been given access as well for its own investigation of the all-important questions about why we went to war and the way we went to war. The administration's drumbeat for war in Iraq began at the end of the summer in 2002. It was carefully staged. As White House Chief of Staff Andrew Card said on September that year about the plan for war, ``From a marketing point of view, you don't introduce new products in August.'' Hardly by coincidence, the timing of the war also coincided with the final phase of the congressional election campaigns that year. One further point deserves mention. Initially, in the run-up to the war in 2002, the Administration did not produce and give Congress a National Intelligence Estimate--a document summarizing the collective expert wisdom of the intelligence community--to support its claims about Iraq's involvement with al-Qaida and its development of nuclear, chemical, and biological weapons of mass destruction. When Democrats on the Senate Intelligence Committee insisted that an estimate be produced, it was finally provided on October 1, 2002, 2 days before the congressional resolution authorizing the war was brought before the Senate for debate. The estimate itself buried important dissenting views in the footnotes. The Senate adopted the war resolution on October 11, the day after it passed the House of Representatives--and after 6 weeks of an aggressive White House campaign replete with images of mushroom clouds over America, in a brazen attempt to pressure Congress to give the President the blank check he wanted for the war, and to do so before adjourning for the November elections. As we now know all too well, Saddam had no weapons of mass destruction and no ties to al-Qaida; 150,000 American troops are bogged down in a quagmire in Iraq in a war that America never should have fought, that has seriously undermined our respect in the world, and that has made the real war on terrorism far harder to win. It is time for the administration to come clean and provide the PDBs to the Congress. This is not a meaningless debate about documents. The issue is the quality and quantity of intelligence the President was looking at when he made the decision to go to war. It's essential to get to the bottom of the rush to war--not only to get the truth, but also because there are other threats on the horizon as well--in Iran, North Korea and elsewhere. America must get it right next time, and access to the PDBs is an essential part of doing so.

Mr. KENNEDY. Mr. President, I expect maybe about 12 minutes. If I could get 15 I will try and yield some back.

Mr. KENNEDY. Mr. President, I thank the Senator from North Dakota. I hope both our colleagues, and Americans, will have a chance to listen carefully to his assessment of the whole budget process that we have been faced with in the Senate. It has very important implications for the American people. It will impact the financial condition of our Nation and of Americans and its relationship to the world economy. Most of all, I hope our colleagues and friends have listened to him carefully, talking about what the issue is before us in the Senate today before we vote. As I have said previously, the budget is a question of priorities. The Republican proposal is going to give $95 billion in tax giveaways, the vast majority of which will benefit the wealthiest individuals, with just crumbs for individuals who earn below the $100,000. And who is paying for it? The neediest people in our country. The conference report leaves the tax cuts for the rich under the Christmas tree but leaves middle-class families out in the cold. This is what we are talking about: families who make over $1 million will get $32,000 and families with incomes under $100,000 will get $29. Now we have to ask, where will we get those resources? How are we going to come up with that money? Those who have been the most vulnerable in our society are the ones who will be penalized, particularly the elderly and needy who rely on the Medicaid Program and also the young people who rely on the student financial aid program. The portion of the Senate bill reported by the Health, Education, Labor and Pensions Committee passed on a very strong bipartisan basis, unanimous on the education features of it. The bill included $12 billion in new student aid and benefits, $8 billion of this was put to need-based aid, which would be available to young people, to effectively raise the Pell grant, which is so important for more than 5 million families in this country, from $4,050 to $4,500. The bill also provided some additional assistance for those who were focusing on the study of math, science, and high-need foreign languages, basically a recognition and a response to the need to keep America competitive with China and India, and globally, in terms of engineering and other math and science graduates. So we decided to provide some stimulus and additional help to encourage people to study math and science. But we did it in addition to providing an increase for all needy students. Most of the hearings that we have had in our committee, under the chairmanship of Senator Enzi, have focused on college access and affordability--and I pay tribute to him both for his leadership in getting this proposal through the Senate, and also for battling for any help for students in the conference. We passed, in the budget resolution last January, a very significant increase for education that would have helped all needy students. The Senate Republicans and Democrats went on record to say in our Nation's budget we want to allocate additional resources to education. We increased it by $5.4 billion, and that was struck down by the Republican leadership over in the House of Representatives and completely lost in the conference report to that bill. So this has been a long battle to try and provide some additional help. What has come back from the conference in this reconciliation bill is no different. It is completely unsatisfactory. The conference completely struck our $450 increase for Pell students, putting the maximum Pell grant right back down to $4,050, where it has been for four years. The conference included some increase for individuals who are going to study math and science. As I mentioned, math and science is important, but we cannot focus on it at the expense of all other students. Most thoughtful educators believe that one has to begin with math and science in the very early grades. We are going to do something about math and science, and we have a bipartisan group that want to improve math and science education, but the approach in this legislation is not the answer to the challenge faced by our Nation. This year, over 5 million students rely on the Pell grant to afford the cost of college. In the Senate bill, we gave additional aid to every one of those students. The bill that returned from the partisan meetings with the House takes that aid away from millions of students. In order to qualify for the additional aid in this report, students have to attend full time. Over 40 percent of the students who attend public 4-year colleges in a degree-granting program attend part time, so they will see none of the assistance that is provided in this bill. Those are hard-working students who have to work 25, 30 hours a week or more, one or two jobs, in order to put themselves through school. They will see no help from this bill. To get any of this additional assistance, the students must maintain a B average. Is this the message we want to send to the students, that their aid disappears if they slip to a B-minus? How does this help the students? To get any additional grant aid in their junior or senior year, they must major in math, science, or engineering. I strongly support and encourage more students to study math and science but not at the expense of other students. What does this say to the young people who want to be teachers? You are out of luck. What does it say to the millions of people we need to be nurses? You are out of luck. You do not benefit one cent with this particular program. The Senate bill took a balanced approach, and made sure that all the children who needed our help got an increase in aid. That is not what came out of conference. I think that is sending a message to young people: Don't bother spending your time being a teacher anymore, don't try to study to become a nurse because that extra aid and assistance will not be there. Federal need-based aid was established to help all low-income students afford the higher education of their choice. That was the need. That was the reason for it. We said as a country that we have young people of talent and ability who can gain entrance into the best schools and colleges, but they cannot quite put it all together because their families can't afford it along with rest of their basic needs. We said, OK. They are able to gain entry into the schools and colleges of their choice, and we will help them afford it. Through a combination of the grants and aid programs, work-study programs, and their summer income, they will be able to continue through their degree. Not only did these individuals gain, but the Nation gained. The whole country reaped the benefit, because we said that every student matters and every student deserves our help. That is not what this conference report says. During this holiday season, we should be focused on the true meaning of Christmas and the special thoughts that Americans of many faiths have at this time of year for their families, their friends and neighbors, and peoples everywhere. We're reminded that each of us as an obligation to care for one another and to help those in need--to lend a hand to the least of those in our midst. As the Bible teaches us, we should ``Love thy neighbor as thyself.'' But this budget reconciliation bill does the opposite. It robs from the poor to make room for tax giveaways to the rich. Wealthy Americans, banks and drug companies are big winners under this deal. Those who need hope and help are the big losers. It's a bill Scrooge would love. Sadly, as we complete this measure at Christmastime, it will indeed be the neediest members of our society who have to tighten their belts. Republicans have decided to leave tax giveaways for the wealthy under the Christmas tree, while leaving middle-class families out in the cold. Those with incomes over $1 million will receive an average of $32,000 in tax cuts. But those with incomes under $100,000 will receive an average of only $29. Bah humbug. Children and families struggling to pay for health care will be among those who are hurt the most, and 46 million Americans lack health insurance, but this bill will increase costs and cut health benefits for millions of low-income families. It slashes Medicaid funding by $6.9 billion over the next five years, and $28.4 billion over 10 years. Under this administration, the number of uninsured has already risen to historic levels. But this Republican bill will send the level even higher, by raising costs and cutting benefits for low-income families who rely on Medicaid for needed health care. The conference report is actually Worse than the Republican House bill in many respects. It would take away the guaranteed benefits for the 25 million children who receive health care through Medicaid by creating an ambiguous new state option called ``flexible benefits.'' It hurts seniors by increasing the prescription drug co-payments beyond those in the House bill, allowing states to charge up to 20 percent of the cost of each drug, beyond the means of many low-income Medicaid families. It indexes cost-sharing to medical inflation, a much higher rate of increase than family wages. It allows states to increase cost- sharing up to four times the amount allowed under current law. The majority of the savings from these provisions don't come from the actual co-payments and premiums paid by Medicaid enrollees. They result from families using fewer medical services, because the increased costs will put the health services they need beyond their reach. Unlike the Senate bill, which made the majority of its cuts by reducing overpayments to drug companies and HMOs, the conference report cuts Medicaid by limiting the access of low-income families to needed health care. Instead of getting rid of the outrageous slush fund for Medicare HMOs, it cuts health care for poor children. The Republican Congress is telling hard-working Americans everywhere that they don't care about the hardships they face. Their policies encourage failure, not hope for a better life. This bill means that mothers trying to hold down a job and put food on their table will go without the child care assistance and child support they need and deserve. Behind closed doors, Republicans also have added a welfare reauthorization in this bill despite their repeated efforts to block debate on the reauthorization in the Senate. Democrats supported moving forward, but Republican reluctance to spend money on our most vulnerable citizens kept the leadership from bringing the bill to the floor. So House Republican leaders decided to avoid the standard legislative process by unfairly slipping their welfare bill into this massive budget reconciliation bill. The bill includes new work requirements without adequate child care funding. By eliminating the current caseload reduction credit, the bill requires over half the States to increase the number of welfare recipients in federal work activities by two-thirds in 2007, unless they have a substantial drop in their welfare caseload over the next year. Despite this increase in required work, the bill fails to allow child care funds to keep pace with inflation. The bill under-funds child care by $11 billion in terms of what is needed to maintain current purchasing power and to meet the increased work requirements. In Massachusetts alone, 13,500 children are already on waiting lists to receive these essential services. Under this bill, the situation can only get worse. The bill will make life harder for poor children who rely on child support to survive. It greatly weakens enforcement efforts to make dead-beat dads live up to their responsibilities and provide for their children. Under the Republican plan, nearly $2.9 billion will be lost in child support payments over the next five years and $8.4 billion in over the next ten years. In Massachusetts, $58 million in child support payments will be lost over the next five years, and $170 million over the next ten years. These are the Nation's poorest children. They are vulnerable and in need. But the Republican plan would abandon them. Merry Christmas. Families having to choose between putting food on the table and keeping warm this winter are also big losers under this bill. In Massachusetts, the Low Income Home Energy Assistance Program, LIHEAP, serves 134,000 needy families. These families it will receive a maximum benefit of $765 for the current heating season. This is enough for only one tank of oil. It takes at least two to four tanks to make it through the winter. Unfortunately, under this bill, low income families struggling to make it through the winter won't see any additional funds until fiscal year 2007. The bill cruelly ignores the obvious fact that the heating crisis is here now. They claim that they have provided for LIHEAP in other bills. But when you add up the numbers, they've only provided $2.4 billion in regular funds and $1.6 billion in emergency funds. The emergency funds are given out at the discretion of the President, so it's possible that states will see little to none of the $1.6 billion this year. Obviously, the Republican majority had no intention of fully funding LIHEAP at its authorized level of $5.1 billion. Republicans mouth the same old rhetoric about wanting to help our neediest citizens. But when it comes to putting their money where their mouth is they fall short--very short--and it's the nation's poor who suffer. Students struggling to get a college degree are the big losers as well. We know that education is the key to keeping America strong, secure, and competitive. Now, more than ever, we must embrace and invest in education to advance America in the years ahead. To do so requires a commitment to educational opportunity for all-- especially for talented youth who have so much potential, but need help affording a college degree. The cost of tuition and fees at public colleges has skyrocketed in recent years and Pell grants have fallen far behind. Under current law, this will be the fourth year in a row that the maximum Pell grant has not been increased. For countless families, the gap is so great that college is out of reach. Over 400,000 talented, qualified students each year can't go to a 4-year college because they can't afford it, 170,000 don't attend college at all. That's unacceptable. But in the face of this crisis, the Republican budget deal abandons the Senate provisions that increased the maximum Pell grant by $450. It includes the biggest cuts in student loan programs ever, in order to pay for $13 billion in tax giveaways for the richest Americans. The Senate bill included $8 billion to increase grant aid for all Pell grant recipients. In contrast, the small amount of funding for student aid included in this Conference report--$13 billion for tax cuts and only $3.75 billion for students--will only be available for a very small number of students eligible for Pell Grants. This bill abandons the government's long-time commitment to ensuring that the neediest students get the most help. It imposes so many hurdles to new aid that it is sure to leave behind those who need our help the most to stay in school. Under this proposal, a single mother who can attend college only part-time because she has to work 40 hours a week to put food on the table will not be eligible for a penny in new grant aid. Under this proposal, a student who did not have the opportunity to take rigorous courses in high school because this administration underfunded the No Child Left Behind Act would not be eligible for a penny in new grant aid. Under this proposal, a student who decides that the best road to a good job is to pursue a credential, such as a dental hygiene certificate, would not be eligible for a penny in new grant aid. In today's global economy, we need stronger incentives for students to study math and science, and the Senate bill did that. We also need to address the broader crisis of hundreds of thousands of qualified students who never go to college, because the costs are too high and student aid is too low. All qualified students should get the help they need to achieve the American dream. Take the case of Carli, from Hampton, NH. She's a junior at a public college in the State, and she already has $25,000 of debt. She relies on her Pell grant, but even with that, she has to work 20 hours a week during the school year and 40 hours a week in the summer. She writes, ``This is not a question of not working hard enough. It has been an uphill battle to put myself through school. I am happy to do it, but I just want to know that when I'm through, there is a place for me in the American Dream too.'' Becky, from Holyoke, MA is a junior in college and is already in $24,000 of debt. She's alarmed at how high her debt will be when she graduates. She writes, ``We students are the future of the USA. By putting us at risk and in a financial crisis, Bush and his cronies are putting the future of the USA at risk.'' In addition to abandoning so many students who so desperately need our help, this bill also rejects our Senate-passed proposals to increase competition in the federal loan programs. As a result, private lenders will still have their unfair advantage over the more cost- efficient federal loan program. The end result will be increased costs to taxpayers. The actions taken today hand the keys of the student loan program over to profit-hungry banks and lenders. Congress missed the opportunity to say students, not banks, should be given a break. American students deserve better. America deserves better. Mr. President, I ask unanimous consent to have printed in the Record this letter signed by over 146 organizations that are against the reconciliation report. Also, I ask unanimous consent to have printed in the Record a letter from the U.S. Conference of Catholic Bishops that finds that this is basically an immoral, unfair, and unjust budget. I also ask unanimous consent to have printed in the Record a letter from a the educational groups who oppose this report. There are even more groups than these who have joined in to oppose this bill. I have not seen groups as united as these in their opposition to the way this report fails to prioritize the needs of the American family. And they speak loudly and clearly.

Mr. KENNEDY. If you are concerned about children, the children's groups are strongly opposed to this. If you are concerned about education, virtually the whole education community is strongly opposed to it. If you care about those in poverty and the problems our needy families face, all those groups that combat poverty are strongly opposed to it. I hope my colleagues will look at what is in this report, listen to the grave concerns of all of these organizations, and join me in strongly opposing this legislation. I hope my colleagues will stand up for the American family and vote against this conference report.

Mr. KENNEDY. Mr. President, I reclaim a minute of my time.

Mr. KENNEDY. Mr. President, if the Senator would outline the $9 billion of additional aid and assistance to students, if he would outline those figures, they are in complete conflict with the information we have about what is and what is not in this bill. I hope he's not referring to the higher loan limits that students have been given which will result in increased profits for the banks. Is he taking into account the higher origination fees that students in the Direct Loan program may have to pay under this proposal? What about the fact that only 10 percent of the total need-based population is going to benefit at all from the math and science program? If he wants to provide it sometime, or list it, we would be enormously grateful. That's not what our calculations say.

Mr. KENNEDY. I will include it in the Record at the appropriate time. I thank the Senator for trying to make a good case of a bad record. I will include the responses to each of those areas in my remarks. I thank the Senator.

Mr. KENNEDY. Mr. President, in follow-up with respect to the education provisions in the conference report on the pending bill, it is important to note that the Senate bill included $6 billion for Pell grants, to do more to ensure that every talented student who has the opportunity to go to college can afford to do so. In addition, the Senate bill included a further $2 billion for college students studying math and science. By contrast, the conferees' bill reduces spending in the student loan programs by $13 billion and allocates only $3.75 billion to new grant aid. That's $13 billion in tax giveaways for the wealthy and only a meager $3.75 billion increase in grants to help students go to college. It gets worse. In order to receive the funds that are available, students must jump through multiple hoops. As a result, only a very small percentage of students will ever see the aid. In fact, based on an analysis by the Congressional Budget Office, our estimates show only about 10 percent of the students who currently receive Pell grants will receive additional assistance under this bill--hardly a commitment to educational opportunity for all students. We need to provide incentives for students to study math and science. But it makes no sense to do so at the expense of other students. As the cost of college rises and Pell grants remain stagnant, it's wrong to take $13 billion in savings from the student loan program and not give a single penny to 90 percent of the students struggling to make it through college. Senator Gregg pointed to the loan forgiveness provisions in this conference report. I strongly support those provisions and urged their inclusion in the Senate bill. But these provisions are merely an extension of current law. They ensure that we won't now eliminate the incentive we've been providing for teachers who agree to teach in high- need fields in high-poverty schools. Loan forgiveness is an extremely important program, but it does nothing for the almost 170,000 college- ready students, who each year fail to go to college because they can't afford the upfront costs of doing so. These students need additional grant aid--even if they choose to be teachers and not scientists and engineers. Senator Gregg also said that the fixed interest rate structure in this conference report will cost students $5 billion. In fact, the fixed interest rate structure actually saves about $6 billion more than the variable rate structure proposed by Senator Gregg and included in the House bill. Instead of the variable interest rate capped at 8.25 percent, as proposed by Senator Gregg, the Senate bill kept the current law structure of 6.8 percent fixed rate, which is obviously better for students than an 8.25 percent rate. The Federal Reserve has increased interest rates in each of its last 13 meetings. The Senate bill was designed to protect more students from the current trend of increasing rates. I had proposed a variable rate capped at 6.8 percent--the option supported by the student groups. But our Republican colleagues refused to accept this option. Many of us wanted to do even more for students than we achieved in the Senate bill. Instead, we were forced to find $7 billion in savings--now $13 billion in this final version--so that this Republican Congress and the Bush administration can provide greater tax giveaways to the wealthy. Our Senate bill opened the doors of opportunity for many more young people. We took the fat out of bank profits and put most of it back where it belongs--helping the nation's neediest students. This conference report puts an additional $6 billion into tax cuts for the wealthy--on top of the $7 billion in the Senate bill--while doing nothing for 90 percent of those struggling to pay for college. Those are the wrong priorities, Mr. President, and I very much regret that our Republican colleagues have insisted on turning a good Senate bill into a shameful retreat on aid to college education.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I support the Defense authorization bill as a strong expression of our support in the Senate for our Armed Forces at this difficult point in our history. We are proud of the courage of our troops in Iraq and their extraordinary dedication in carrying out their mission. But I strongly object to the action of the conferees in including a last-minute rider to the bill that received little debate and that would drastically restrict the fundamental right to habeas corpus for aliens detained by the Department of Defense at Guantanamo Bay, Cuba. Section 1405 of the bill amends the habeas corpus statute in the U.S. Code by adding these words: ``Except as provided in section 1405 of the National Defense Authorization Act for Fiscal Year 2006, no court, justice, or judge shall have jurisdiction to hear'' any habeas corpus claim or any other action relating to the detention of an alien at Guantanamo. For centuries, the writ of habeas corpus has been a cornerstone of the rule of law in Anglo-American jurisprudence. Since the Second Magna Carta in 1679, it has served as the primary means to challenge unlawful government detention. Literally, the writ means ``have the body,'' i.e. the person detained, brought before a court or judge to consider the legality of detention. The writ was used to prevent indefinite detention, and ensured that individuals could be held no longer than 3 to 6 months without indictment or trial for felony or treason. In other words, it requires the Government to provide a court with a legal basis for its decision to deprive persons of their liberty. This provision strikes at one of the basic principles of liberty enshrined in the Anglo-Saxon system of government that the executive may not arbitrarily deprive persons of liberty for an indefinite period. As Blackstone wrote in his commentaries: To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm or tyranny throughout the whole kingdom. But confinement of a person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. This principle was so important to the Framers that ``the great writ'' was the only common law writ enshrined in the Constitution. Article I, section 9 of the Constitution states, that ``The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public safety may require it.'' Any changes to the writ of habeas corpus, this most fundamental of rights, should be made carefully, through open debate, and with a full understanding of the implications of the change. The Senate did not hold a single hearing on the need for this drastic change. In fact, the sponsor of the amendment, Senator Graham, admitted that some of his comments during the debate were not accurate statements of law. Senator Specter, the chairman of the Judiciary Committee, opposed the provision, and spoke eloquently on the lack of appropriate process for its consideration. The provision was adopted by the Senate with less than 2 hours of debate. Since its passage, all negotiations on this provision have occurred in back rooms, without the involvement of the vast majority of Congress, and without even consulting most of the conferees. Such a cavalier treatment of the basic right to habeas corpus is appalling. The constitutional writ of habeas corpus deserves better than that. Justices Scalia and Stevens, dissenting in the recent case of Hamdi v. Rumsfeld, acknowledged the power of Congress to suspend the writ of habeas corpus, but they noted the limits on that power embedded in the Constitution. In this dissent, they said: To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of September 11, 2001, constitute an ``invasion,'' and whether those attacks still justify suspension several years later, are questions for Congress. Here, neither the legislation nor the report language makes any findings that would satisfy the requirements of the Suspension clause. Without such a record, it would be preposterous for Senators to claim that somehow their actions fulfilled the constitutional requirement for suspending habeas corpus. Section 1405, therefore, can be treated only as a modification of the statutory provisions for habeas corpus in the U.S. Code. In Rasul v. Bush, for example, decided last year, the Supreme Court made clear that it was considering the statutory right to habeas corpus, not the constitutional right. They did not determine whether the constitutional right to habeas corpus was reached. Since Congress cannot act in violation of the Constitution to prohibit judicial review, the courts still have the power to determine whether the constitutional right of habeas corpus is available in cases where section 1405 deprives a detainee of the statutory right. So this unseemly action may well not have achieved its purpose. Some may claim that the right of habeas corpus does not apply to Guantanamo because Section 1405 defines the United States specifically to exclude Guatanamo Bay, Cuba. But as the Supreme Court found in Rasul, the common law right of habeas corpus is not limited to the formal territorial boundaries of a nation, but is defined by ``the practical question of `the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.' `` It is this common law right which our founders enshrined in the Constitution. Thus, the scope of the constitutional right to corpus habeas is the same as the common law right. In Rasul, the Supreme Court stated that the United States ``exercises `complete jurisdiction and control' over Guanatanamo Naval Base, and may continue to exercise such control permanently. . .'' Supporters of this provision argue that after stripping the courts of jurisdiction for habeas corpus claims, the provision adds back limited appeal rights for detainees in two classes: No. 1, those who have had a Combatant Status Review Tribunal, which serves as an initial designation of enemy combatant status but is not a final judgment; and No. 2, those who have received a final decision from a military commission. Over 500 detainees in the first category, those who have had a CSRT--many of them have already filed a petition to challenge their designation as enemy combatants. We are not aware of any detainees in the second category. For the first category, section 1405 does not apply the habeas- stripping provision to pending cases, so the courts retain jurisdiction to consider these petitions--in addition to pending military commission cases--consistent with Lindh v. Murphy. During deliberations on the floor for this provision, the Senate specifically rejected language from the original Graham amendment, which would have brought these categories of cases within its reach. Section 1405 also leaves completely undisturbed a challenge to the military commission process now pending in the Supreme Court in the case of Hamdan v. Rumsfeld. The sponsors of the original amendment made it clear on the floor of the Senate that the provision has prospective application only, which is what my colleagues and I understood to be the drafters' intent. When Congress authorizes a procedure to challenge military commissions or the tribunals, Congress is clearly not endorsing or authorizing the use of commissions or tribunals themselves. The Senate has numerous bills before it to authorize military commissions, and it has not acted on any of them. In addition, section 1405 in no way endorses the amorphous and unlimited definition of enemy combatant currently used by the Bush administration. We all hope that the administration will soon provide Congress and the American people with a definition of who is an ``enemy combatant,'' with clear limits on who is subject to such a designation and is subject to indefinite detention as a result. Sadly, section 1405 also undermines the giant step forward we took in giving such overwhelming support to the McCain amendment and its prohibitions on abusive interrogation techniques. Yet section 1405 appears to undermine that amendment. We have established clear rules, but the Graham amendment is a flagrant attempt to prevent their enforcement. That is not what we intended when nearly all of us voted for Senator McCain's prohibition and that is not the message we intend to send to the world when we did so. In this devious maneuver, Congress has slammed the front door on torture, then surreptitiously opened a back door to it. This legislation obviously raises larger policy concerns in addition to its ambiguous statutory language and the constitutional concerns. America was founded on the principle that no one, especially not the President, is above the law. Section 1405, however, sends exactly the wrong message. By barring claims from the detainees, it creates a legal black hole in Guantnanamo where detainees can be abused and tortured. We can't continue to turn a blind eye to the treatment of detainees at Guantanamo. The actions of our Government, wherever they are taken, should be limited by the rule of law. Yet this provision attempts to put Guantanamo above the rule of law. As we try to build democratic societies in Iraq and Afghanistan, how can we possibly prove to them that arbitrary imprisonment is wrong and that all persons are entitled to humane treatment, when Congress so blatantly refuses to practice what it preaches? The hypocrisy is as breathtaking as it is shameful. It is an outrage that the conferees have included this irresponsible provision in this must-pass bill, and I hope the Senate will do all it can to remove it in the new session that begins in January.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I commend the House and Senate conferees for their agreement to extend the Defense Department program to prevent defense contracting firms supporting or subsidizing the kind of discrimination that has long been a problem in such contracting. The extension through September 2009 is clearly needed to achieve that important goal. Defense contracting has long been dominated by old-boy networks that make it very difficult for African-Americans, Latinos, Asians, and Native Americans to participate fairly in these opportunities, or even obtain information about them. Minorities historically have been excluded from both public and private construction contracts in general, and from Federal defense contracts in particular. Since its adoption, the Defense Department's effort, called the 1207 program, has helped level the playing field for minority contractors. Extending the program was a priority, since it's clear there is much more to do. Since the program was first enacted in 1986, racial and ethnic discrimination has continued to be a substantial obstacle to minority participation in Federal contracts. In some cases, overt discrimination prevents minority- owned businesses from obtaining needed loans and bonds. Prime contractors, unions, and suppliers of goods and materials have consistently preferred to do business with white contractors rather than minority firms. Minorities have been consistently underutilized in government contracting. In 1996, the Urban Institute released a report documenting minority firms received only 57 cents in government contracts for every dollar they should have received based upon their eligibility. For specific racial groups and women, the disparities were even greater. African-American owned firms received only 49 cents on the dollar; Latino-owned firms, 44 cents; Asian-American owned firms, 39 cents; Native American-owned firms, 18 cents. These statistics are particularly troubling, because they exist despite affirmative action programs in many jurisdictions. Without such programs, the problem would be worse. The Urban Institute report found that disparities for minority- and women-owned firms were greatest in the areas where no affirmative action program was in place. For African Americans, the percentage dropped from 49 percent to 22 percent, for Latinos from 44 percent to 26 percent, for Asians from 39 percent to 13 percent, and for Native Americans from 18 percent to 4 percent. These figures show that affirmative action is not only effective, but still urgently needed. We've also seen repeated reports of bid shopping and of minority businesses being denied contracts despite submitting the lowest bid. Also, the Department's decision to award a growing number of defense contracts noncompetitively has excluded minority-owned businesses from a significant number of contracting opportunities. No-bid contracts also hurt white-owned businesses, but they disadvantage minority-owned firms in particular. These problems affect a wide variety of areas in which the Department offers contracts, and the problems are detailed in recent studies. A 2002 Dallas study found that minority business enterprises were significantly disadvantaged in obtaining contract work. Evidence in that report also suggests that discrimination takes place in subtle ways, such as by making unrealistic demands on minority contractors, or refusing to pay them on time. A Hispanic-American contractor noted that on several occasions, he and other minority contractors were not informed of bid opportunities with government agencies, even though they performed services in the field. A Native American contractor in goods and other services noted that some customers visit his company and walk out, once they see the owner is not a white man. Many minority firms reported being consistently underestimated by white prime contractors who assume they are not capable of doing the work because they are minority-owned. Minority firms expressed concern that they will never become large enough to compete for larger contracts if they are denied a chance to prove themselves on smaller contracts. In Cincinnati, a 2002 study found that ``bid shopping'' by prime contractors continues to harm minority firms. The firms also reported numerous obstacles in seeking work in the city, such as denial of opportunities to bid, lack of response to minority presentations for bidding, limited financing, problems obtaining bonds, slow pay, predatory business practices, and stereotypical attitudes that minorities are incapable of performing good work. A 2003 study of contracting in Ohio found racial prejudice in both the public and private sectors. A State inspector was alleged to have expressed hatred for African Americans in ugly terms. An African- American professional service contractor said that his prime contractor deliberately sabotaged his work by breaking his equipment. A state inspector conceded to an African-American contractor that he was requiring him to do more expensive work than he would have required of a large white-owned contractor doing an identical job nearby. Banks and unions sometimes contribute to the obstacles by discriminating against minorities in awarding financing. A 2004 study in Alameda, CA, also found significant underutilization of minority-owned firms. I have received a letter from an African-American business owner, Mr. John McDonald, explaining the difficulties minority firms face in the contracting business and I ask unanimous consent to have it printed in the Record.

Mr. KENNEDY. One of the purposes of this program is to ensure that government contracting does not subsidize--even indirectly--private discrimination. Because discrimination affects contracting by private firms as well as State and local governments, and all contractors bid in for these contracts as well as for Federal defense contracts, it is important to ensure a level playing field in Federal contracting. Finally, the data in the Department of Commerce benchmark study supports the need to improve contracting opportunities for minority- owned businesses. The 1207 program helps to correct these pervasive problems of discrimination without imposing an undue burden on white-owned businesses. Small businesses owned by white contractors are eligible to receive the benefits of the program if they are socially or economically disadvantaged. All of us benefit when recipients of Federal opportunities reflect America's diversity, and I'm proud to support the reauthorization of the 1207 program.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I strongly support the Violence Against Women Act of 2005, and I commend Senator Biden, Senator Specter, Senator Leahy and Senator Hatch for their bipartisan leadership on this very important legislation. The current authorization for the act expired on September 30, and it has taken far too long to build upon the successes of existing anti-violence against women programs and enhance the safety and security of the victims of domestic violence, dating violence, sexual assault, and stalking. We have a responsibility in Congress to do all we can to eradicate domestic violence. Our bill gives the safety of women and their families the high priority it deserves, and I urge my colleagues in the House to support it. This bill eases housing problems for battered women. It also includes new funds for training health professionals to recognize and respond to domestic and sexual violence, and to help public health officials recognize the need as well. The research funds provided by the bill are vital, because we need the best possible interventions in health care settings to prevent future violence. Violence against women can occur at any point in a woman's life, beginning in childhood and taking place in a wide variety of circumstances and settings. It's essential for any bill on such violence to include girls and young women as well, and this bill does that. Another important section of the bill provides greater help to immigrant victims of domestic violence, sexual assault, trafficking and similar offenses. This section will remove the obstacles in our current immigration laws that prevent such victims from safely fleeing the violence in their lives, and help dispel the fear that often prevents them from reporting their abusers to appropriate authorities. Eliminating domestic violence is especially challenging in immigrant communities, since victims often face additional cultural, linguistic and immigration barriers to their safety. Abusers of immigrant spouses or children are liable to use threats of deportation to trap them in endless years of violence. Many of us have heard horrific stories of violence in cases where the threat of deportation was used against spouses or children--``If you leave me, I'll report you to the immigration authorities, and you'll never see the children again.'' Or the abuser says, ``If you tell the police what I did, I'll have immigration deport you.'' Congress has made significant progress in enacting protections for these immigrant victims, but there are still many women and children whose lives are in danger. Our legislation does much more to protect them, and I commend the sponsors for making domestic violence in immigrant communities an important priority. The improvements in immigration protections in the bill are designed to help prevent the deportation of immigrant victims who qualify for immigration relief under the Violence Against Women Act (VAWA). It will consolidate adjudications of such immigration cases in a specially trained unit, enhance confidentiality protections for victims, and offer protection to vulnerable immigrant victims who had been left out of the protections in current law. Overall, the bill represents major new progress in protecting women from violence, and I look forward to early action by the House in this important reauthorization. I ask unanimous consent that a more detailed summary of the provisions on immigrants be printed at this point in the Record.

Mr. KENNEDY

Mr. KENNEDY. So just as a point of information, what time do we expect that time will begin, if the pending request for time is agreed to and whatever time the floor leaders agreed to?

Mr. KENNEDY. I thank the Chair.

Mr. KENNEDY. Reserving the right to object, and I don't intend to, what is the business before the Senate now?

Mr. KENNEDY. And what time do we start the 1 hour prior to the cloture vote?

Mr. KENNEDY. At that time, after this consent agreement, then the hour tolls prior to the cloture vote; am I correct?