Herb Kohl

Mr. KOHL

Mr. KOHL. Mr. President, the ability of American companies to out innovate and better compete with their global competitors is more important today than ever. Yet, the FBI estimates that U.S. companies lose billions of dollars each year to criminals who steal their trade secrets--their innovative ideas, formulas, designs and other proprietary information. For example, last year, a Chinese national working for an American automobile manufacturer was convicted of stealing trade secrets for a Chinese competitor. His actions were estimated to cost the American company between $50 and $100 million. That is why I rise today with Senators Whitehouse and Coons to introduce the Economic Espionage Penalty Enhancement Act of 2011. This bill is simple and straightforward--it increases the maximum penalties for stealing a trade secret to benefit a foreign company. The measures in this bill were recommended to Congress by the U.S. Intellectual Property Enforcement Coordinator, in conjunction with the Departments of Commerce, Homeland Security, Justice and State, and the U.S. Trade Representative. The Economic Espionage Act Penalty Enhancement Act, while a modest bill, is intended to be a starting point for a larger discussion about the implementation of the Economic Espionage Act, EEA, and whether additional updates and improvements are needed in light of the global economy and advances in technology. In 1996, Congress enacted the EEA, making it a federal crime to steal a trade secret. Nearly fifteen years later, trade secret theft and economic espionage continue to pose a threat to U.S. companies to the tune of billions of dollars a year. As we reexamine the law, we will be looking at how we can help prosecutors bring more of these criminals to justice and companies better protect their trade secrets. Among the issues we will look at are whether additional protections are needed for trade secrets as part of EEA prosecutions, whether whistleblower protections should be added, and whether we need a federal civil private right of action. Businesses spend every resource at their disposal to develop proprietary economic information including their customer lists, pricing schedules, business agreements, and manufacturing processes, to name a few. This information is literally a business's lifeblood. Stealing it can be the death knell for a company. The chief executive of GM recently said that industrial espionage is a major threat to the company and that he worries about it ``every day.'' But these thefts have a much greater impact beyond the American company that falls victim to an economic spy. The economic strength, competitiveness, and security of our country rely upon the ability of industry to compete without unfair interference from foreign governments and from their own domestic competitors. Without freedom from economic sabotage, our companies lose their hard-earned advantages and their competitive edge. This problem is not new, but it has grown and evolved in the fifteen years since the Economic Espionage Act became law. U.S. corporations face intense competition at home and abroad. As much as 80 percent of the assets of today's companies are intangible trade secrets. They must be able to protect their trade secrets to remain competitive and keep our economy strong. Advances in technology make the protection of trade secrets more difficult and more critical than ever. Trade secrets can simply be downloaded from a company's computer, uploaded to the Internet, and transferred anywhere in the world in a matter of minutes. Within a matter of days, a U.S. corporation can lose complete control over its trade secrets. Unfortunately, we have many examples of the risk and harm posed by economic espionage. In 2009, a Chinese-born engineer who had been employed by a leading aerospace company was convicted of economic espionage and sentenced to fifteen years in prison for collecting sensitive information about the U.S. space shuttle that he intended to share with the Chinese government. Prior to his sentencing, the district court judge said that although we do not know how much information he shared with China, we do know that he hurt not only his former employer but also the national security of the United States. Domestic economic espionage, known as industrial espionage, can be just as threatening to American companies. For example, just this month a former computer programmer for a Wall Street bank was sentenced to eight years in prison for stealing secret code used in the bank's valuable high-frequency trading system. The trading system earned the bank $300 million in 2009 alone. He took a job at a startup company that was planning to directly compete with the Wall Street bank, and gave that company the stolen code. In my home State of Wisconsin a disgruntled employee of a company that manufactures aftermarket airplane parts was prosecuted under the economic espionage statute and sentenced to thirty months in prison for attempting to sell trade secrets to competitors. The trade secret-- details and measurements of particular airplane parts--took years and hundreds of thousands of dollars for the manufacturer to create, test and gain Federal Aviation Administration approval. Fortunately, the perpetrator was caught before he sold the trade secrets, but had he been successful the manufacturer would likely have been forced out of business. The examples above illustrate the seriousness of these crimes. The legislation that we introduce today will increase the maximum sentence for economic espionage from 15 years to 20 years and to direct the Sentencing Commission to consider increasing the penalty range for theft of trade secrets and economic espionage. This is a first step in our efforts to do more to stem the flow of valuable business information out of our country. We must definitively punish anyone who steals information from American companies. Over the coming months, this measure will provide a framework for our discussions about how we can do more to solve this problem. I look forward to working with my colleagues on this critical problem. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, the ability of American companies to out innovate and better compete with their global competitors is more important today than ever. Yet, the FBI estimates that U.S. companies lose billions of dollars each year to criminals who steal their trade secrets--their innovative ideas, formulas, designs and other proprietary information. For example, last year, a Chinese national working for an American automobile manufacturer was convicted of stealing trade secrets for a Chinese competitor. His actions were estimated to cost the American company between $50 and $100 million. That is why I rise today with Senators Whitehouse and Coons to introduce the Economic Espionage Penalty Enhancement Act of 2011. This bill is simple and straightforward--it increases the maximum penalties for stealing a trade secret to benefit a foreign company. The measures in this bill were recommended to Congress by the U.S. Intellectual Property Enforcement Coordinator, in conjunction with the Departments of Commerce, Homeland Security, Justice and State, and the U.S. Trade Representative. The Economic Espionage Act Penalty Enhancement Act, while a modest bill, is intended to be a starting point for a larger discussion about the implementation of the Economic Espionage Act, EEA, and whether additional updates and improvements are needed in light of the global economy and advances in technology. In 1996, Congress enacted the EEA, making it a federal crime to steal a trade secret. Nearly fifteen years later, trade secret theft and economic espionage continue to pose a threat to U.S. companies to the tune of billions of dollars a year. As we reexamine the law, we will be looking at how we can help prosecutors bring more of these criminals to justice and companies better protect their trade secrets. Among the issues we will look at are whether additional protections are needed for trade secrets as part of EEA prosecutions, whether whistleblower protections should be added, and whether we need a federal civil private right of action. Businesses spend every resource at their disposal to develop proprietary economic information including their customer lists, pricing schedules, business agreements, and manufacturing processes, to name a few. This information is literally a business's lifeblood. Stealing it can be the death knell for a company. The chief executive of GM recently said that industrial espionage is a major threat to the company and that he worries about it ``every day.'' But these thefts have a much greater impact beyond the American company that falls victim to an economic spy. The economic strength, competitiveness, and security of our country rely upon the ability of industry to compete without unfair interference from foreign governments and from their own domestic competitors. Without freedom from economic sabotage, our companies lose their hard-earned advantages and their competitive edge. This problem is not new, but it has grown and evolved in the fifteen years since the Economic Espionage Act became law. U.S. corporations face intense competition at home and abroad. As much as 80 percent of the assets of today's companies are intangible trade secrets. They must be able to protect their trade secrets to remain competitive and keep our economy strong. Advances in technology make the protection of trade secrets more difficult and more critical than ever. Trade secrets can simply be downloaded from a company's computer, uploaded to the Internet, and transferred anywhere in the world in a matter of minutes. Within a matter of days, a U.S. corporation can lose complete control over its trade secrets. Unfortunately, we have many examples of the risk and harm posed by economic espionage. In 2009, a Chinese-born engineer who had been employed by a leading aerospace company was convicted of economic espionage and sentenced to fifteen years in prison for collecting sensitive information about the U.S. space shuttle that he intended to share with the Chinese government. Prior to his sentencing, the district court judge said that although we do not know how much information he shared with China, we do know that he hurt not only his former employer but also the national security of the United States. Domestic economic espionage, known as industrial espionage, can be just as threatening to American companies. For example, just this month a former computer programmer for a Wall Street bank was sentenced to eight years in prison for stealing secret code used in the bank's valuable high-frequency trading system. The trading system earned the bank $300 million in 2009 alone. He took a job at a startup company that was planning to directly compete with the Wall Street bank, and gave that company the stolen code. In my home State of Wisconsin a disgruntled employee of a company that manufactures aftermarket airplane parts was prosecuted under the economic espionage statute and sentenced to thirty months in prison for attempting to sell trade secrets to competitors. The trade secret-- details and measurements of particular airplane parts--took years and hundreds of thousands of dollars for the manufacturer to create, test and gain Federal Aviation Administration approval. Fortunately, the perpetrator was caught before he sold the trade secrets, but had he been successful the manufacturer would likely have been forced out of business. The examples above illustrate the seriousness of these crimes. The legislation that we introduce today will increase the maximum sentence for economic espionage from 15 years to 20 years and to direct the Sentencing Commission to consider increasing the penalty range for theft of trade secrets and economic espionage. This is a first step in our efforts to do more to stem the flow of valuable business information out of our country. We must definitively punish anyone who steals information from American companies. Over the coming months, this measure will provide a framework for our discussions about how we can do more to solve this problem. I look forward to working with my colleagues on this critical problem. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, Senator Johnson and I congratulate the residents of the town of Plum Lake in Vilas County, WI, as they celebrate the 100th anniversary of their town's founding. Plum Lake comprises the communities of Sayner and Star Lake, both of which have long traditions as vacation destinations because of the friendly people and the magnificence of the lakes and forests, as well as the abundance of fish and game. Folks looking to escape the day to day grind can retire to this beautiful area year round to hunt, fish, water and snow ski, and hike along nature trails. Visitors are often surprised to discover that the town's slogan, ``Birthplace of the snowmobile,'' reflects its invention there by Carl Eliason in 1924. The town of Plum Lake was officially formed by an ordinance passed by the Vilas County Board on January 5, 1911. The ordinance went into effect April 1, 1911, creating the new town from territory detached from the town of Arbor Vitae. The first town meeting was held in Sayner on April 14, 1911. In the 19th century, Plum Lake was the center of a vibrant lumber industry, which eventually gave way to tourism. Two years before the founding of the town, in the summer of 1909, Herb Warner and others began construction on one of Wisconsin's oldest golf courses, the Plum Lake Golf Club, which opened in 1912. Plum Lake also boasts one of Wisconsin's oldest summer camps, Camp Highlands, which began when Harry O. Gilette, a University of Chicago Laboratory School headmaster, brought 10 boys to a remote point on Plum Lake for a summer in the wilderness in 1904. Today, Plum Lake maintains both its majestic views and its place as a prime vacation destination. We are very proud to represent this community and we congratulate the town of Plum Lake on this historic milestone. We join with all Wisconsinites in expressing our pride in the treasures of our State.

Mr. KOHL

Mr. KOHL. Mr. President, as chairman of the Senate's Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights, I pay tribute to a giant of antitrust law and economics, the economist and legal scholar Alfred E. Kahn, who passed away on December 27, 2010, at the age of 93. A scholar at the forefront of public utility deregulation, Dr. Kahn was perhaps best known as the ``father of airline deregulation.'' His work in the Carter administration in the 1970s to deregulate the airline industry led the way for dramatic reductions in airline fares, saving consumers billions, when he spearheaded passage of the U.S. Airline Deregulation Act of 1978 as chair of the now-defunct Civil Aeronautics Board. While a highlight of his career, this was just one of many of Dr. Kahn's achievements--throughout his life he was an outstanding advocate for consumers, against monopoly and unnecessary government interference in the private market, and for the creative and vigorous enforcement of antitrust law. Born on October 17, 1917, in Paterson, NJ, the son of Russian immigrants, Alfred Edward Kahn graduated from New York University, first in his class, at the age of 18 and received a Ph.D. from Yale University. In the early 1940s, Dr. Kahn worked at the Brookings Institution, in the Antitrust Division of the Department of Justice, and for the War Production Board as an economist. During World War II, Dr. Kahn served as an Army economist for the Commission on Palestine Surveys. Soon after the war, he spent 2 years as a professor at Ripon College in Wisconsin, before beginning his esteemed career at Cornell University, which, other than the time he spent in public service, would last until his death. Before stepping onto the national political scene, Dr. Kahn served as head of the New York State Public Service Commission, the State's regulator for electricity, gas, water, and telephones. From there, seeking to use deregulation as a means to stimulate economic growth, President Carter tapped Dr. Kahn to serve as chairman of the now- defunct Civil Aeronautics Board in 1977. The CAB was entrusted with economic regulation of the airlines--including the routes carriers could fly and the fares they could charge. At the time of his appointment, Dr. Kahn professed to know little about the airline business, referring to airplanes as ``marginal costs with wings.'' However, he was a quick study, and the industry was ripe for change. Substantial investments had recently been made in wide-body aircraft, and industry players wanted access to new routes and new passengers. Though slight in physical stature and viewed purely as an academic and not someone who could wield much influence, Dr. Kahn was able to take on the industry and persuade the establishment that excessive government regulation had long-harbored inefficiency and was facilitating artificially inflated fares. Through various avenues, including the press, CAB proceedings, and testimony in Congress, Dr. Kahn was the intellectual leader and primary advocate of deregulating the airline industry, highlighting that many planes were flying half full at fares many could not afford. Less than 2 years after assuming his post at the CAB, Congress passed and President Carter signed into law the Airline Deregulation Act. This landmark legislation was the first complete dismantling of a Federal regulatory scheme since the 1930s. In all, Dr. Kahn testified before U.S. House and Senate committees more than 70 times in his career. He testified before our Antitrust Subcommittee several times, always eloquently and honestly, with impressive candor and penetrating insight. In later years, Dr. Kahn steadfastly defended his work on airline deregulation by pointing out that more Americans were flying with greater choice at lower rates than ever before. In a 1998 essay in the New York Times, Dr. Kahn admitted that even though the ``resulting competitive regime has been far from perfect, it has saved travelers more than $10 billion a year.'' For Dr. Kahn, the deregulation of the airline industry had one powerful effect: empowering the consumer through competition. This was perhaps the signal achievement of his outstanding career. Throughout his life, he stood for consumers against entrenched monopolies, for innovation against the established economic order, and for unleashing the dynamism and creativity of an unfettered free market and excessive and heavyhanded regulation. Not only a brilliant economist and legal scholar, Dr. Kahn will be remembered for his sharp wit and humor. Dr. Kahn famously created a buzz with his initiative to eliminate government ``bureaucratese'' when the Washington Post published a copy of his memo calling for his staff to use ``plain English'' and ``quasi-conversational, humane prose'' in their writing. Following his time in Washington, Dr. Kahn returned to chair the economics department at Cornell, where he would author more than 130 academic papers and 8 books. Upon his passing, I want to express my gratitude to Dr. Alfred Kahn for his contributions to the antitrust and regulatory economics fields and for his service to the American people and offer my deepest condolences to his wife and family.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today with Senator Graham to introduce the Sunshine in Litigation Act of 2011, a bill that will curb the ongoing abuse of secrecy orders in Federal courts. The result of this abuse, which often comes in the form of sealed settlement agreements, is to keep important health and safety information hidden from the public. As we recognize Sunshine Week, this bipartisan, commonsense measure is an important step to improving transparency in our courthouses by requiring judges to consider public health and safety before permitting secrecy agreements. This problem of court secrecy has been occurring for decades, and most often arises in product liability cases. Typically, an individual brings a cause of action against a manufacturer for an injury or death that has resulted from a defect in one of its products. The injured party often faces a large corporation that can spend a virtually unlimited amount of money defending the lawsuit, prolonging the time it takes to reach resolution. Facing a formidable opponent and mounting medical bills, a plaintiff often has no choice but to settle the litigation. In exchange for the award he or she was seeking, the victim is forced to agree to a provision that prohibits him or her from revealing information disclosed during the litigation. Plaintiffs get a respectable award, and the defendant is able to keep damaging information from getting out. But the American public incurs the loss because they remain unaware of critical public health and safety information that could potentially save lives. This concern about excessive secrecy is warranted by the long history of tobacco companies, automobile manufacturers, pharmaceutical companies, medical device manufacturers, and others settling with victims and using the legal system to hide information which, if it became public, could protect the American people from future health and safety harms. Surely, there are appropriate uses for such orders, like protecting trade secrets and other truly confidential company information, as well as personal identifying and classified information. This legislation makes sure such information is protected. But, protective orders are certainly not supposed to be used for the sole purpose of hiding damaging information from the public, to protect a company's reputation or profit margin. One of the most famous cases of abuse of secrecy orders involved Bridgestone/Firestone tires. From 1992 to 2000, tread separations of various Bridgestone and Firestone tires caused accidents across the country, many resulting in serious injuries and even fatalities. Instead of owning up to their mistakes and acting responsibly, Bridgestone/Firestone quietly settled dozens of lawsuits, most of which included secrecy agreements. It wasn't until 1999, when a Houston public television station broke the story, that the company acknowledged its wrongdoing and recalled 6.5 million tires. By then, it was too late. More than 250 people had died and more than 800 were injured as a result of the defective tires. If the story ended there, and the Bridgestone/Firestone cases were just an aberration, one might argue that there is no urgent need for legislation. But, unfortunately, the list of abuses goes on. There is the case of General Motors. Although an internal memo demonstrated that GM was aware of the risk of fire deaths from crashes of pickup trucks with ``side saddle'' fuel tanks, an estimated 750 people were killed in fires involving trucks with these fuel tanks. When victims sued, GM disclosed documents only under protective orders, and settled these cases on the condition that the information in these documents remained secret. This type of fuel tank was installed for 15 years before being discontinued. More recently, the world's largest automaker, Toyota, has faced a barrage of litigation relating to its recall of over 8 million cars due to sudden unintended acceleration problems, causing more than eighty deaths. After years of lawsuits, Congressional oversight hearings, and Toyota's efforts to keep settlements and product information secret, a California Federal judge finally made public thousands of previously sealed documents, noting that ``the business of this litigation should be in the public domain.'' Had a judge been required to weigh the public's interest in health and safety, as this legislation would require, perhaps we would have known more about the risks sooner and some of those lives could have been saved. Until we put the public interest on par with the interests of private litigants, public health and safety will remain at risk. This very issue is currently before a Federal judge in Orlando, FL. There, the court is faced with deciding whether AstraZeneca can keep under seal clinical studies about the harmful side effects of an antipsychotic drug, Seroquel. Plaintiffs' lawyers and Bloomberg News sued to force AstraZeneca to make public documents discovered in dismissed lawsuits. In 2009, the court unsealed some of the documents at question, but denied requests to release AstraZeneca's submissions to foreign regulators and sales representatives' notes on doctors' meetings. Despite a recent $68.5 million settlement, continued efforts to unseal crucial documents proved unsuccessful. This is exactly the sort of case where we need judges to consider public health and safety when deciding whether to allow a secrecy order. We are mindful of the risks to public health and safety that court secrecy orders can pose in the wake of last year's horrific BP oil spill in the Gulf of Mexico. As the parties continue to fight over crucial documents, injured parties continue to accept secret settlements. We can only hope that information vital to public health and safety, which could protect against the next disaster, is not being shielded from us as well. The examples go on and on. At a 2007 hearing before the Senate Judiciary Committee Subcommittee on Antitrust, Competition Policy and Consumer Rights, Johnny Bradley Jr. described his tragic personal story that demonstrates the implications of court endorsed secrecy. In 2002, Mr. Bradley's wife was killed in a rollover accident allegedly caused by tread separation in his Cooper tires. While litigating the case, his attorney uncovered documented evidence of Cooper tire design defects. Through aggressive litigation of protective orders and confidential settlements in cases prior to the Bradleys' accident, Cooper had managed to keep the design defect documents confidential. Prior to the end of Mr. Bradley's trial, Cooper Tires settled with him on the condition that almost all litigation documents would be kept confidential under a broad protective order. With no access to documented evidence of design defects, consumers continue to remain in the dark about this life-threatening defect. In 2005, the drug company Eli Lilly settled 8,000 cases related to harmful side effects of its drug Zyprexa. All of those settlements required plaintiffs to agree ``not to communicate, publish or cause to be published . . . any statement . . . concerning the specific events, facts or circumstances giving rise to [their] claims.'' In those cases, the plaintiffs uncovered documents which showed that, through its own research, Lilly knew about the harmful side effects as early as 1999. While the plaintiffs kept quiet, Lilly continued to sell Zyprexa and generated $4.2 billion in sales in 2005. More than a year later, information about the case was leaked to the New York Times and another 18,000 cases settled. Had the first settlement not included a secrecy agreement, consumers would have been able to make informed choices and avoid the harmful side effects, including enormous weight gain, dangerously elevated blood sugar levels, and diabetes. There are no records kept of the number of confidentiality orders accepted by State or Federal courts. However, anecdotal evidence suggests that court secrecy and confidential settlements are prevalent. Beyond Bridgestone/Firestone, General Motors, Toyota, Seroquel, BP, Cooper Tire, and Zyprexa, secrecy agreements have also had real life consequences by allowing Dalkon Shield, Bjork-Shiley heart valves, and numerous other dangerous products and drugs to remain in the market. And those are only the ones we know about. While some judges have already begun to move in the right direction by giving serious weight to public health and safety, we still have a long way to go. The Sunshine in Litigation Act is a modest proposal that would require Federal judges to perform a simple balancing test to ensure that in any proposed secrecy order in a case pleading facts relevant to public health and safety, the defendant's interest in secrecy truly outweighs the public interest in information related to public health and safety. Specifically, prior to making any portion of a case confidential or sealed, a judge would have to determine--by making a particularized finding of fact--that doing so would not restrict the disclosure of information relevant to public health and safety. Moreover, all courts, both Federal and State, would be prohibited from issuing protective orders that prevent disclosure to relevant regulatory agencies. This legislation does not prohibit secrecy agreements across the board, and it does not place an undue burden on judges or on our courts. It simply states that where the public interest in disclosure outweighs legitimate interests in secrecy, courts should not shield important health and safety information from the public. Since last Congress, we have made changes to make absolutely clear that this would apply only to those cases with facts relevant to public health and safety, and to ensure that there is no undue burden on judges or our courts. The time to focus some sunshine on public hazards to prevent future harm is now. I urge my colleagues to support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today with Senator Graham to introduce the Sunshine in Litigation Act of 2011, a bill that will curb the ongoing abuse of secrecy orders in Federal courts. The result of this abuse, which often comes in the form of sealed settlement agreements, is to keep important health and safety information hidden from the public. As we recognize Sunshine Week, this bipartisan, commonsense measure is an important step to improving transparency in our courthouses by requiring judges to consider public health and safety before permitting secrecy agreements. This problem of court secrecy has been occurring for decades, and most often arises in product liability cases. Typically, an individual brings a cause of action against a manufacturer for an injury or death that has resulted from a defect in one of its products. The injured party often faces a large corporation that can spend a virtually unlimited amount of money defending the lawsuit, prolonging the time it takes to reach resolution. Facing a formidable opponent and mounting medical bills, a plaintiff often has no choice but to settle the litigation. In exchange for the award he or she was seeking, the victim is forced to agree to a provision that prohibits him or her from revealing information disclosed during the litigation. Plaintiffs get a respectable award, and the defendant is able to keep damaging information from getting out. But the American public incurs the loss because they remain unaware of critical public health and safety information that could potentially save lives. This concern about excessive secrecy is warranted by the long history of tobacco companies, automobile manufacturers, pharmaceutical companies, medical device manufacturers, and others settling with victims and using the legal system to hide information which, if it became public, could protect the American people from future health and safety harms. Surely, there are appropriate uses for such orders, like protecting trade secrets and other truly confidential company information, as well as personal identifying and classified information. This legislation makes sure such information is protected. But, protective orders are certainly not supposed to be used for the sole purpose of hiding damaging information from the public, to protect a company's reputation or profit margin. One of the most famous cases of abuse of secrecy orders involved Bridgestone/Firestone tires. From 1992 to 2000, tread separations of various Bridgestone and Firestone tires caused accidents across the country, many resulting in serious injuries and even fatalities. Instead of owning up to their mistakes and acting responsibly, Bridgestone/Firestone quietly settled dozens of lawsuits, most of which included secrecy agreements. It wasn't until 1999, when a Houston public television station broke the story, that the company acknowledged its wrongdoing and recalled 6.5 million tires. By then, it was too late. More than 250 people had died and more than 800 were injured as a result of the defective tires. If the story ended there, and the Bridgestone/Firestone cases were just an aberration, one might argue that there is no urgent need for legislation. But, unfortunately, the list of abuses goes on. There is the case of General Motors. Although an internal memo demonstrated that GM was aware of the risk of fire deaths from crashes of pickup trucks with ``side saddle'' fuel tanks, an estimated 750 people were killed in fires involving trucks with these fuel tanks. When victims sued, GM disclosed documents only under protective orders, and settled these cases on the condition that the information in these documents remained secret. This type of fuel tank was installed for 15 years before being discontinued. More recently, the world's largest automaker, Toyota, has faced a barrage of litigation relating to its recall of over 8 million cars due to sudden unintended acceleration problems, causing more than eighty deaths. After years of lawsuits, Congressional oversight hearings, and Toyota's efforts to keep settlements and product information secret, a California Federal judge finally made public thousands of previously sealed documents, noting that ``the business of this litigation should be in the public domain.'' Had a judge been required to weigh the public's interest in health and safety, as this legislation would require, perhaps we would have known more about the risks sooner and some of those lives could have been saved. Until we put the public interest on par with the interests of private litigants, public health and safety will remain at risk. This very issue is currently before a Federal judge in Orlando, FL. There, the court is faced with deciding whether AstraZeneca can keep under seal clinical studies about the harmful side effects of an antipsychotic drug, Seroquel. Plaintiffs' lawyers and Bloomberg News sued to force AstraZeneca to make public documents discovered in dismissed lawsuits. In 2009, the court unsealed some of the documents at question, but denied requests to release AstraZeneca's submissions to foreign regulators and sales representatives' notes on doctors' meetings. Despite a recent $68.5 million settlement, continued efforts to unseal crucial documents proved unsuccessful. This is exactly the sort of case where we need judges to consider public health and safety when deciding whether to allow a secrecy order. We are mindful of the risks to public health and safety that court secrecy orders can pose in the wake of last year's horrific BP oil spill in the Gulf of Mexico. As the parties continue to fight over crucial documents, injured parties continue to accept secret settlements. We can only hope that information vital to public health and safety, which could protect against the next disaster, is not being shielded from us as well. The examples go on and on. At a 2007 hearing before the Senate Judiciary Committee Subcommittee on Antitrust, Competition Policy and Consumer Rights, Johnny Bradley Jr. described his tragic personal story that demonstrates the implications of court endorsed secrecy. In 2002, Mr. Bradley's wife was killed in a rollover accident allegedly caused by tread separation in his Cooper tires. While litigating the case, his attorney uncovered documented evidence of Cooper tire design defects. Through aggressive litigation of protective orders and confidential settlements in cases prior to the Bradleys' accident, Cooper had managed to keep the design defect documents confidential. Prior to the end of Mr. Bradley's trial, Cooper Tires settled with him on the condition that almost all litigation documents would be kept confidential under a broad protective order. With no access to documented evidence of design defects, consumers continue to remain in the dark about this life-threatening defect. In 2005, the drug company Eli Lilly settled 8,000 cases related to harmful side effects of its drug Zyprexa. All of those settlements required plaintiffs to agree ``not to communicate, publish or cause to be published . . . any statement . . . concerning the specific events, facts or circumstances giving rise to [their] claims.'' In those cases, the plaintiffs uncovered documents which showed that, through its own research, Lilly knew about the harmful side effects as early as 1999. While the plaintiffs kept quiet, Lilly continued to sell Zyprexa and generated $4.2 billion in sales in 2005. More than a year later, information about the case was leaked to the New York Times and another 18,000 cases settled. Had the first settlement not included a secrecy agreement, consumers would have been able to make informed choices and avoid the harmful side effects, including enormous weight gain, dangerously elevated blood sugar levels, and diabetes. There are no records kept of the number of confidentiality orders accepted by State or Federal courts. However, anecdotal evidence suggests that court secrecy and confidential settlements are prevalent. Beyond Bridgestone/Firestone, General Motors, Toyota, Seroquel, BP, Cooper Tire, and Zyprexa, secrecy agreements have also had real life consequences by allowing Dalkon Shield, Bjork-Shiley heart valves, and numerous other dangerous products and drugs to remain in the market. And those are only the ones we know about. While some judges have already begun to move in the right direction by giving serious weight to public health and safety, we still have a long way to go. The Sunshine in Litigation Act is a modest proposal that would require Federal judges to perform a simple balancing test to ensure that in any proposed secrecy order in a case pleading facts relevant to public health and safety, the defendant's interest in secrecy truly outweighs the public interest in information related to public health and safety. Specifically, prior to making any portion of a case confidential or sealed, a judge would have to determine--by making a particularized finding of fact--that doing so would not restrict the disclosure of information relevant to public health and safety. Moreover, all courts, both Federal and State, would be prohibited from issuing protective orders that prevent disclosure to relevant regulatory agencies. This legislation does not prohibit secrecy agreements across the board, and it does not place an undue burden on judges or on our courts. It simply states that where the public interest in disclosure outweighs legitimate interests in secrecy, courts should not shield important health and safety information from the public. Since last Congress, we have made changes to make absolutely clear that this would apply only to those cases with facts relevant to public health and safety, and to ensure that there is no undue burden on judges or our courts. The time to focus some sunshine on public hazards to prevent future harm is now. I urge my colleagues to support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today in support of S. 23, the America Invents Act. This bipartisan bill is the product of a great deal of hard work and negotiation, and I congratulate Senators Leahy, Hatch and Grassley on their accomplishment. This bill is a reasonable compromise that will update and strengthen our U.S. Patent system so that American businesses can better compete in the 21st Century. The American system of patenting inventions has helped make our country the center of innovation for more than two centuries. The America Invents Act will ensure that inventors and those who invest in their discoveries are able to rely on their most important asset--their patent. Patents are vital components in the research and development cycle that help create small businesses and jobs. In my home State of Wisconsin, we have a strong tradition of invention and innovation--from the invention of the first practical typewriter in 1869 to a cure for Rickets disease in 1925 to cutting edge drug therapies for the 21st Century. More than 50 Wisconsin based startup companies have been fueled by patents that resulted from research at the University of Wisconsin. And there are countless other Wisconsin companies that rely on patents to sustain and grow their business. I am able to support the Patent Reform Act because of the improvements made to the bill since it was first introduced. As is the nature of compromise, I recognize that we cannot all get every change we want. I thank Senator Leahy for making substantial changes to accommodate many of my concerns. Specifically, I appreciate your willingness to strike a major section of the bill regarding prior user rights--which would have done serious harm to the University of Wisconsin and its patent licensing business. The bill incorporates additional changes that were important to research universities, including provisions related to venue, grace period for first inventor to file, oath, and collaborative research. Patent protection will be stronger with the inclusion of ``could have raised'' estoppel, strong administrative estoppel, and explicit statutory authority for the Patent and Trademark Office, PTO, to reject petitions by third parties and order joinder of related parties. Improvements have also been made regarding damages. Finally, I am pleased that we were able to address the PTO's funding needs in a way that maintains Congress' duty to carefully oversee the PTO while ensuring that it has the resources necessary to issue top quality patents in a timely manner. Again, I commend Senator Leahy for his many years of work on this bill, and I look forward to the House taking up this legislation.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today with Senators Blumenthal, Sherrod Brown, Casey, Gillibrand, Mikulski and Bill Nelson to introduce the Elder Abuse Victims Act of 2011. This legislation creates in the Department of Justice an Office of Elder Justice, OEJ, that will protect America's seniors by strengthening law enforcement's response to elder abuse. The OEJ will provide leadership, training materials and other needed information to prosecutors, law enforcement, adult protective services and others, in order to build a robust infrastructure to effectively address elder abuse. Additionally, the bill will encourage states to set up multidisciplinary teams where information and resources are shared in order to better serve the victims of elder abuse. The plight of vulnerable seniors is a subject of great concern. Elder abuse is often hidden from sight by the victims themselves. Even so, experts conservatively estimate that as many as two million Americans age 65 and older have been injured, exploited, or otherwise mistreated by someone on whom they depend for care or protection. As Federal policymakers, it is time that we step forward and tackle this challenge with dedicated efforts and more vigorous programs that will make fighting elder abuse as important a priority as ongoing efforts to counter child abuse. We need to provide assistance to our courts, which would benefit from having access to designated staff that has particular knowledge and expertise in elder abuse. Specialized protocols may be required where victims are unable to testify on their own behalf, due to cognitive impairments or poor physical health. And there is a great need for specialized knowledge that will support successful prosecutions and enhance the development of case law. Today, many state elder abuse statutes lack adequate provisions to encourage wide reporting of abuse and exploitation, more thorough investigations, and greater prosecution of abuse cases. For the victims of elder abuse, many of whom are physically frail and very frightened, we must do much more. First and foremost, we must be more responsive. Not too long ago, it was difficult to even get an abuse case investigated. While that is starting to change, we have much more work to do. Sometimes, for example, emergency interventions may be needed, particularly if the older person is being harmed at the hands of family members or trusted ``friends.'' It may be necessary to remove the older adult from his or her home to a temporary safe haven. To do this, we must build a much more robust infrastructure. This legislation, strongly supported by the Elder Justice Coalition, will go a long way toward improving the ability of law enforcement, prosecutors and other government agencies to respond to abuse of older Americans. I urge my colleagues to support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today with Senators Blumenthal, Sherrod Brown, Casey, Gillibrand, Mikulski and Bill Nelson to introduce the Elder Abuse Victims Act of 2011. This legislation creates in the Department of Justice an Office of Elder Justice, OEJ, that will protect America's seniors by strengthening law enforcement's response to elder abuse. The OEJ will provide leadership, training materials and other needed information to prosecutors, law enforcement, adult protective services and others, in order to build a robust infrastructure to effectively address elder abuse. Additionally, the bill will encourage states to set up multidisciplinary teams where information and resources are shared in order to better serve the victims of elder abuse. The plight of vulnerable seniors is a subject of great concern. Elder abuse is often hidden from sight by the victims themselves. Even so, experts conservatively estimate that as many as two million Americans age 65 and older have been injured, exploited, or otherwise mistreated by someone on whom they depend for care or protection. As Federal policymakers, it is time that we step forward and tackle this challenge with dedicated efforts and more vigorous programs that will make fighting elder abuse as important a priority as ongoing efforts to counter child abuse. We need to provide assistance to our courts, which would benefit from having access to designated staff that has particular knowledge and expertise in elder abuse. Specialized protocols may be required where victims are unable to testify on their own behalf, due to cognitive impairments or poor physical health. And there is a great need for specialized knowledge that will support successful prosecutions and enhance the development of case law. Today, many state elder abuse statutes lack adequate provisions to encourage wide reporting of abuse and exploitation, more thorough investigations, and greater prosecution of abuse cases. For the victims of elder abuse, many of whom are physically frail and very frightened, we must do much more. First and foremost, we must be more responsive. Not too long ago, it was difficult to even get an abuse case investigated. While that is starting to change, we have much more work to do. Sometimes, for example, emergency interventions may be needed, particularly if the older person is being harmed at the hands of family members or trusted ``friends.'' It may be necessary to remove the older adult from his or her home to a temporary safe haven. To do this, we must build a much more robust infrastructure. This legislation, strongly supported by the Elder Justice Coalition, will go a long way toward improving the ability of law enforcement, prosecutors and other government agencies to respond to abuse of older Americans. I urge my colleagues to support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL. Mr. President, I rise today with Senators Blumenthal, Sherrod Brown, and Casey to introduce the End Abuse in Later Life Act of 2011. This legislation improves the provisions in the existing Violence Against Women Act dealing with abuse in later life by enhancing direct services for victims and increasing the kinds of experts who participate in multidisciplinary training programs. Abuse in later life is a sad and growing problem in our society. Experts conservatively estimate that 14.1 percent of older Americans have been injured, exploited, or otherwise mistreated by someone on whom they depend for care or protection each year. This type of abuse is especially disturbing because the victims are often physically frail, defenseless, and very frightened. It is time that we take action on the Federal level to protect older Americans who fall victim to physical, financial, sexual and emotional abuse. We can do this by training law enforcement, prosecutors, governmental agencies, victim advocates, and relevant court officers to recognize and address instances of abuse in later life. This legislation also encourages cross-training of these groups and multidisciplinary collaborative community efforts in order to better serve victims. By passing this legislation, we will ensure that abuse later in life is given the serious consideration it deserves and make great strides to protect one of the most vulnerable populations in America. I urge my colleagues to support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today with Senators Blumenthal, Sherrod Brown, and Casey to introduce the End Abuse in Later Life Act of 2011. This legislation improves the provisions in the existing Violence Against Women Act dealing with abuse in later life by enhancing direct services for victims and increasing the kinds of experts who participate in multidisciplinary training programs. Abuse in later life is a sad and growing problem in our society. Experts conservatively estimate that 14.1 percent of older Americans have been injured, exploited, or otherwise mistreated by someone on whom they depend for care or protection each year. This type of abuse is especially disturbing because the victims are often physically frail, defenseless, and very frightened. It is time that we take action on the Federal level to protect older Americans who fall victim to physical, financial, sexual and emotional abuse. We can do this by training law enforcement, prosecutors, governmental agencies, victim advocates, and relevant court officers to recognize and address instances of abuse in later life. This legislation also encourages cross-training of these groups and multidisciplinary collaborative community efforts in order to better serve victims. By passing this legislation, we will ensure that abuse later in life is given the serious consideration it deserves and make great strides to protect one of the most vulnerable populations in America. I urge my colleagues to support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce the No Oil Producing and Exporting Cartels Act, NOPEC. This legislation will authorize our government, for the first time, to take action against the illegal conduct of the OPEC oil cartel. It is time for the U.S. government to fight back against efforts to fix the price of oil and hold OPEC accountable when it acts illegally. Our legislation will hold OPEC member nations to account under U.S. antitrust law when they agree to limit supply or fix price in violation of the most basic principles of free competition. NOPEC will authorize the Attorney General to file suit against nations or other entities that participate in a conspiracy to limit the supply, or fix the price, of oil. In addition, it will specify that the doctrines of sovereign immunity and act of state do not exempt nations that participate in oil cartels from basic antitrust law. I have introduced this legislation in each Congress since 2000. This legislation passed the full Senate in the 110th Congress by a vote of 70-23 in June 2007 as an amendment to the 2007 Energy Bill before being stripped from that bill in the conference committee. The identical House version of NOPEC also passed the other body as stand alone legislation in the 110th Congress in 2007 by an overwhelming 345- 72 vote. It is now time for us to at last pass this legislation into law and give our nation a long needed tool to counteract this pernicious and anti-consumer conspiracy. Since January 2009 the cost of crude oil has more than doubled, reaching today's level of $96 per barrel. Likewise, throughout 2009 and 2010, gasoline prices have marched steadily upward, soaring to over $3 a gallon in January 2011, a price that has nearly doubled in little over two years. And recently, OPEC ministers indicated that they may decide against an increase an output in 2011, saying in the final days of 2010 that the world economy can tolerate a $100 per barrel price. So it is clear that the global oil cartel remains a major force conspiring to raise oil prices to the detriment of American consumers. The actions of the OPEC cartel in recent years demonstrate the dangers it presents. A good example occurred at the end of 2008. On October 24, 2008, OPEC agreed to cut production by 1.5 million barrels a day, and less than two months later, on December 17, 2008, OPEC agreed to a further 2.2 million barrels a day production cut. OPEC made no secret of its motivation for these production cuts. OPEC President Chakib Khelil put it very simply in an interview published December 23, 2008, ``Without these cuts, I don't think we'd be seeing $43 [per barrel] today, we'd have seen in the $20's. . . . [H]opefully by the third quarter [of 2009] we will see prices rising.'' In another interview in December, Khelil was quoted as saying ``The stronger the decision [to cut production], the faster prices will pick up.'' Sure enough, oil prices resumed their march upwards in 2009, and now is more than $90 per barrel. Since cutting its output in this manner at the end of 2008, OPEC has not officially changed its output policy for more than two years. Oil prices have surged nearly $30 since last summer, and OPEC's Secretary General Abdalla Salem El-Badri confirmed there would not be an increase in output, claiming in January 2011 that, ``At the moment there is more than enough oil on the market.'' When the price of crude oil rises as a result of these actions by OPEC, there is no doubt that millions of American consumers feel the pinch every time they visit the gas pump. The Federal Trade Commission has estimated that 85 percent of the variability in the cost of gasoline is the result of changes in the cost of crude oil. Such blatantly anti-competitive conduct by the oil cartel violates the most basic principles of fair competition and free markets and should not be tolerated. If private companies engaged such an international price fixing conspiracy, there would no question that it would be illegal. The actions of OPEC should be treated no differently because it is a conspiracy of nations. For years, this price fixing conspiracy of OPEC nations has unfairly driven up the cost of imported crude oil to satisfy the greed of the oil exporters. We have long decried OPEC, but, sadly, no one in government has yet tried to take any action. This NOPEC legislation will, for the first time, establish clearly and plainly that when a group of competing oil producers like the OPEC nations act together to restrict supply or set prices, they are violating U.S. law. It is also important to point out that this legislation will not authorize private lawsuits. It only authorizes the Attorney General to file suit under the antitrust laws for redress. It will always be in the discretion of the Justice Department and the President as to whether to take action to enforce NOPEC. Our legislation will not require the government to bring a legal action against OPEC member nations, and no private party will have the ability to bring such an action. This decision will entirely remain in the discretion of the executive branch. Our NOPEC legislation will give our law enforcement agencies a tool to employ against the oil cartel but the decision on whether to use this tool will entirely be up to the Justice Department and, ultimately, the President. They can use this tool as they see fit--to file a legal action, to jawbone OPEC in diplomatic discussions, or defer from any action should they judge foreign policy or other considerations warrant it. NOPEC will also make plain that the nations of OPEC cannot hide behind the doctrines of ``sovereign immunity'' or ``act of state'' to escape the reach of American justice. In so doing, our amendment will overrule one 28 year old lower court decision which incorrectly failed to recognize that the actions of OPEC member nations was commercial activity exempt from the protections of sovereign immunity. The most fundamental principle of a free market is that competitors cannot be permitted to conspire to limit supply or fix price. There can be no free market without this foundation. And we should not permit any nation to flout this fundamental principle. Our NOPEC legislation will, for the first time, enable our Justice Department to take legal action to combat the illegitimate price-fixing conspiracy of the oil cartel. It will, at a minimum, have a real deterrent effect on nations that seek to join forces to fix oil prices to the detriment of consumers. This legislation will be the first real weapon the U.S. Government has ever had to deter OPEC from its seemingly endless cycle of supply cutbacks designed to raise price. It will mean that OPEC member nations will face the possibility of real and substantial antitrust sanctions should they persist in their illegal conduct. It will also deter additional nations who may today be considering joining OPEC. I urge my colleagues to support our NOPEC legislation so that our nation will finally have an effective means to combat this price-fixing conspiracy of oil-rich nations. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce the No Oil Producing and Exporting Cartels Act, NOPEC. This legislation will authorize our government, for the first time, to take action against the illegal conduct of the OPEC oil cartel. It is time for the U.S. government to fight back against efforts to fix the price of oil and hold OPEC accountable when it acts illegally. Our legislation will hold OPEC member nations to account under U.S. antitrust law when they agree to limit supply or fix price in violation of the most basic principles of free competition. NOPEC will authorize the Attorney General to file suit against nations or other entities that participate in a conspiracy to limit the supply, or fix the price, of oil. In addition, it will specify that the doctrines of sovereign immunity and act of state do not exempt nations that participate in oil cartels from basic antitrust law. I have introduced this legislation in each Congress since 2000. This legislation passed the full Senate in the 110th Congress by a vote of 70-23 in June 2007 as an amendment to the 2007 Energy Bill before being stripped from that bill in the conference committee. The identical House version of NOPEC also passed the other body as stand alone legislation in the 110th Congress in 2007 by an overwhelming 345- 72 vote. It is now time for us to at last pass this legislation into law and give our nation a long needed tool to counteract this pernicious and anti-consumer conspiracy. Since January 2009 the cost of crude oil has more than doubled, reaching today's level of $96 per barrel. Likewise, throughout 2009 and 2010, gasoline prices have marched steadily upward, soaring to over $3 a gallon in January 2011, a price that has nearly doubled in little over two years. And recently, OPEC ministers indicated that they may decide against an increase an output in 2011, saying in the final days of 2010 that the world economy can tolerate a $100 per barrel price. So it is clear that the global oil cartel remains a major force conspiring to raise oil prices to the detriment of American consumers. The actions of the OPEC cartel in recent years demonstrate the dangers it presents. A good example occurred at the end of 2008. On October 24, 2008, OPEC agreed to cut production by 1.5 million barrels a day, and less than two months later, on December 17, 2008, OPEC agreed to a further 2.2 million barrels a day production cut. OPEC made no secret of its motivation for these production cuts. OPEC President Chakib Khelil put it very simply in an interview published December 23, 2008, ``Without these cuts, I don't think we'd be seeing $43 [per barrel] today, we'd have seen in the $20's. . . . [H]opefully by the third quarter [of 2009] we will see prices rising.'' In another interview in December, Khelil was quoted as saying ``The stronger the decision [to cut production], the faster prices will pick up.'' Sure enough, oil prices resumed their march upwards in 2009, and now is more than $90 per barrel. Since cutting its output in this manner at the end of 2008, OPEC has not officially changed its output policy for more than two years. Oil prices have surged nearly $30 since last summer, and OPEC's Secretary General Abdalla Salem El-Badri confirmed there would not be an increase in output, claiming in January 2011 that, ``At the moment there is more than enough oil on the market.'' When the price of crude oil rises as a result of these actions by OPEC, there is no doubt that millions of American consumers feel the pinch every time they visit the gas pump. The Federal Trade Commission has estimated that 85 percent of the variability in the cost of gasoline is the result of changes in the cost of crude oil. Such blatantly anti-competitive conduct by the oil cartel violates the most basic principles of fair competition and free markets and should not be tolerated. If private companies engaged such an international price fixing conspiracy, there would no question that it would be illegal. The actions of OPEC should be treated no differently because it is a conspiracy of nations. For years, this price fixing conspiracy of OPEC nations has unfairly driven up the cost of imported crude oil to satisfy the greed of the oil exporters. We have long decried OPEC, but, sadly, no one in government has yet tried to take any action. This NOPEC legislation will, for the first time, establish clearly and plainly that when a group of competing oil producers like the OPEC nations act together to restrict supply or set prices, they are violating U.S. law. It is also important to point out that this legislation will not authorize private lawsuits. It only authorizes the Attorney General to file suit under the antitrust laws for redress. It will always be in the discretion of the Justice Department and the President as to whether to take action to enforce NOPEC. Our legislation will not require the government to bring a legal action against OPEC member nations, and no private party will have the ability to bring such an action. This decision will entirely remain in the discretion of the executive branch. Our NOPEC legislation will give our law enforcement agencies a tool to employ against the oil cartel but the decision on whether to use this tool will entirely be up to the Justice Department and, ultimately, the President. They can use this tool as they see fit--to file a legal action, to jawbone OPEC in diplomatic discussions, or defer from any action should they judge foreign policy or other considerations warrant it. NOPEC will also make plain that the nations of OPEC cannot hide behind the doctrines of ``sovereign immunity'' or ``act of state'' to escape the reach of American justice. In so doing, our amendment will overrule one 28 year old lower court decision which incorrectly failed to recognize that the actions of OPEC member nations was commercial activity exempt from the protections of sovereign immunity. The most fundamental principle of a free market is that competitors cannot be permitted to conspire to limit supply or fix price. There can be no free market without this foundation. And we should not permit any nation to flout this fundamental principle. Our NOPEC legislation will, for the first time, enable our Justice Department to take legal action to combat the illegitimate price-fixing conspiracy of the oil cartel. It will, at a minimum, have a real deterrent effect on nations that seek to join forces to fix oil prices to the detriment of consumers. This legislation will be the first real weapon the U.S. Government has ever had to deter OPEC from its seemingly endless cycle of supply cutbacks designed to raise price. It will mean that OPEC member nations will face the possibility of real and substantial antitrust sanctions should they persist in their illegal conduct. It will also deter additional nations who may today be considering joining OPEC. I urge my colleagues to support our NOPEC legislation so that our nation will finally have an effective means to combat this price-fixing conspiracy of oil-rich nations. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I ask unanimous consent that the Special Committee on Aging rules for the 112th Congress be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today with Senators Leahy, Reid, Whitehouse and others to introduce the COPS Improvement Act of 2011. This legislation would reauthorize and make improvements to one of the Department of Justice's most successful efforts to fight crime, the Community Oriented Policing Services, COPS, program. The success story of the COPS program has been told many times, but it is worth repeating. The goal in 1994 was to put an additional 100,000 cops on the beat. Over the next 5 years, from 1995 to 1999, the COPS Universal Hiring Program distributed nearly $1 billion per year in grants to state and local law enforcement agencies in all 50 states to hire additional law enforcement officers, allowing us to achieve our goal of 100,000 new officers. Common sense told the American people that having more police walking the beat would lead to less crime, and our experience with the COPS program proved that to be true. This unprecedented effort to put more police officers in our communities coincided with significant reductions in crime during the 1990s. As the number of police rose, we saw 8 consecutive years of reductions in crime. Few programs can claim such a clear record of success. Unfortunately, the success of the COPS program led some to declare victory. Beginning in 2001, funding for the COPS program came under attack. President Bush proposed cuts to state and local law enforcement programs that totaled well over $1 billion during his tenure. Despite bipartisan efforts in Congress to prevent those cuts, state and local law enforcement funding consistently declined. Ultimately, the administration succeeded in eliminating the COPS Hiring Program in 2005. These cuts have been felt by the people who work tirelessly every day to keep our communities safe, and the consequences have been real. Cities across the country have seen the size of their police forces reduced. Many cities have hundreds of vacancies on their forces that they cannot afford to fill. They have been forced to choose between keeping officers employed and buying vital equipment. The men and women who have sworn to protect us from ever-evolving threats cannot go without either. Over the past several years, there has been a bipartisan effort in Congress to renew our commitment to local law enforcement by restoring COPS funding. In 2009, we dedicated $1 billion to the COPS program through the American Recovery and Reinvestment Act. These funds helped state, local, and tribal law enforcement agencies create and preserve thousands of law enforcement positions. This boost has gone a long way to help many departments weather the economic downturn, but need is great--the COPS Office received nearly 7,300 applications requesting 39,000 officers and $8.3 billion in funds in response to this grant funding. We can all agree that local law enforcement needs our unwavering support. One way we can do this is to reauthorize the COPS program through the COPS Improvement Act of 2011. This legislation will re- authorize hiring programs for three specific purposes-- general community policing, local counter-terrorism officers, and school resource officers. The bill steps up our commitment to community policing and community cooperation by reauthorizing community prosecutor grants. Technology grants that cut down on investigation time and paperwork are included so that officers can spend more time on the beat and less time behind a desk. The bill also creates an independent COPS Office within the Department of Justice, a step that is important to the program's continued success and oversight. Finally, the legislation revitalizes a Troops-to-Cops program to encourage local police agencies to hire former military personnel who are honorably discharged from military service or who are displaced by base closings. The bill makes additional improvements to the COPS program by including safeguards to ensure that our money is being spent wisely. For example, it will allow the COPS Office to do more than simply revoke or suspend a grant if a recipient fails to comply with its terms. The COPS Office, at the direction of the Attorney General, would be able to take any enforcement action available to the Department of Justice, such as civil penalties or recoupment of funds. In addition to strengthening law enforcement's ability to prevent and fight crime, the COPS Improvement Act directly creates jobs and helps local governments cope with the economic downturn without jeopardizing community safety. Furthermore, by hiring more officers we will be better able to combat the crime that harms our economy by driving business opportunities out of distressed neighborhoods, taking with them economic opportunity. The COPS Improvement Act of 2011 would authorize $900 million per year over six years for the COPS program. It would allocate $500 million per year for the hiring officers, $150 million for community prosecutors, and $250 million per year for technology grants. To be sure, some will argue that $900 million is too large a price tag. But it is hard to put a price tag on the security of our communities. Investing money in such a successful program with such an important goal is certainly worth the cost. We must also remember that preventing crime from occurring saves taxpayers from the costs associated with victim assistance and incarceration. For that reason, a recent report by the Brookings Institution found ``COPS . . . to be one of the most cost-effective options available for fighting crime.'' It is difficult to overstate the importance of passing the COPS Improvement Act. Because of the success of the program and the need for a renewed commitment to it, the bill has long had the support of every major law enforcement group in the Nation, including the International Association of Chiefs of Police, the National Association of Police Organizations, the National Sheriffs Association, the International Brotherhood of Police Organizations, the National Organization of Black Law Enforcement Officials, the International Union of Police Associations, and the Fraternal Order of Police. These law enforcement officers put their lives on the line every day to make our communities a safe place to live, and they deserve our full support. I urge my colleagues to support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today with Senators Leahy, Reid, Whitehouse and others to introduce the COPS Improvement Act of 2011. This legislation would reauthorize and make improvements to one of the Department of Justice's most successful efforts to fight crime, the Community Oriented Policing Services, COPS, program. The success story of the COPS program has been told many times, but it is worth repeating. The goal in 1994 was to put an additional 100,000 cops on the beat. Over the next 5 years, from 1995 to 1999, the COPS Universal Hiring Program distributed nearly $1 billion per year in grants to state and local law enforcement agencies in all 50 states to hire additional law enforcement officers, allowing us to achieve our goal of 100,000 new officers. Common sense told the American people that having more police walking the beat would lead to less crime, and our experience with the COPS program proved that to be true. This unprecedented effort to put more police officers in our communities coincided with significant reductions in crime during the 1990s. As the number of police rose, we saw 8 consecutive years of reductions in crime. Few programs can claim such a clear record of success. Unfortunately, the success of the COPS program led some to declare victory. Beginning in 2001, funding for the COPS program came under attack. President Bush proposed cuts to state and local law enforcement programs that totaled well over $1 billion during his tenure. Despite bipartisan efforts in Congress to prevent those cuts, state and local law enforcement funding consistently declined. Ultimately, the administration succeeded in eliminating the COPS Hiring Program in 2005. These cuts have been felt by the people who work tirelessly every day to keep our communities safe, and the consequences have been real. Cities across the country have seen the size of their police forces reduced. Many cities have hundreds of vacancies on their forces that they cannot afford to fill. They have been forced to choose between keeping officers employed and buying vital equipment. The men and women who have sworn to protect us from ever-evolving threats cannot go without either. Over the past several years, there has been a bipartisan effort in Congress to renew our commitment to local law enforcement by restoring COPS funding. In 2009, we dedicated $1 billion to the COPS program through the American Recovery and Reinvestment Act. These funds helped state, local, and tribal law enforcement agencies create and preserve thousands of law enforcement positions. This boost has gone a long way to help many departments weather the economic downturn, but need is great--the COPS Office received nearly 7,300 applications requesting 39,000 officers and $8.3 billion in funds in response to this grant funding. We can all agree that local law enforcement needs our unwavering support. One way we can do this is to reauthorize the COPS program through the COPS Improvement Act of 2011. This legislation will re- authorize hiring programs for three specific purposes-- general community policing, local counter-terrorism officers, and school resource officers. The bill steps up our commitment to community policing and community cooperation by reauthorizing community prosecutor grants. Technology grants that cut down on investigation time and paperwork are included so that officers can spend more time on the beat and less time behind a desk. The bill also creates an independent COPS Office within the Department of Justice, a step that is important to the program's continued success and oversight. Finally, the legislation revitalizes a Troops-to-Cops program to encourage local police agencies to hire former military personnel who are honorably discharged from military service or who are displaced by base closings. The bill makes additional improvements to the COPS program by including safeguards to ensure that our money is being spent wisely. For example, it will allow the COPS Office to do more than simply revoke or suspend a grant if a recipient fails to comply with its terms. The COPS Office, at the direction of the Attorney General, would be able to take any enforcement action available to the Department of Justice, such as civil penalties or recoupment of funds. In addition to strengthening law enforcement's ability to prevent and fight crime, the COPS Improvement Act directly creates jobs and helps local governments cope with the economic downturn without jeopardizing community safety. Furthermore, by hiring more officers we will be better able to combat the crime that harms our economy by driving business opportunities out of distressed neighborhoods, taking with them economic opportunity. The COPS Improvement Act of 2011 would authorize $900 million per year over six years for the COPS program. It would allocate $500 million per year for the hiring officers, $150 million for community prosecutors, and $250 million per year for technology grants. To be sure, some will argue that $900 million is too large a price tag. But it is hard to put a price tag on the security of our communities. Investing money in such a successful program with such an important goal is certainly worth the cost. We must also remember that preventing crime from occurring saves taxpayers from the costs associated with victim assistance and incarceration. For that reason, a recent report by the Brookings Institution found ``COPS . . . to be one of the most cost-effective options available for fighting crime.'' It is difficult to overstate the importance of passing the COPS Improvement Act. Because of the success of the program and the need for a renewed commitment to it, the bill has long had the support of every major law enforcement group in the Nation, including the International Association of Chiefs of Police, the National Association of Police Organizations, the National Sheriffs Association, the International Brotherhood of Police Organizations, the National Organization of Black Law Enforcement Officials, the International Union of Police Associations, and the Fraternal Order of Police. These law enforcement officers put their lives on the line every day to make our communities a safe place to live, and they deserve our full support. I urge my colleagues to support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. Chairman, I rise today to introduce the Preserve Access to Affordable Generics Act. This bipartisan legislation will dramatically reduce prescription drug costs by preventing one of the most egregious, anti-consumer tactics ever devised to keep generic drugs off the market. This amendment would combat ``pay-for-delay'' agreements between brand name and generic drug companies which delay entry of low-cost generic competition. These pay-for-delay agreements are estimated by the FTC to cost consumers $3.5 billion each year, and are estimated by the CBO estimates to cost the federal government more than $2.8 billion over the next decade in higher drug reimbursement payments. In 2008, $235 billion were spent on prescription drugs in the United States. Generic drugs play a crucial role in containing rising prescription drug costs, by offering consumers therapeutically identical alternatives to brand-name drugs, at a significantly reduced cost. Studies have shown that generic competition to brand name drugs can reduce drug prices by as much as 80 percent. However, in recent years generic entry has frequently been blocked by anti-competitive, anti-consumer agreements between brand-name and generic drug manufacturers that limit, delay, or otherwise prevent competition from generic drugs. In pay-for-delay agreements, a brand-name drug manufacturer settles patent litigation by paying off a generic competitor with large amounts of cash, or other valuable consideration to stay off the market until expiration--or a time close to expiration--of the brand-name patent. For example, in 2006, the CEO of Cephalon, which makes the sleep disorder pill Provigil, praised the deals his company made with four generic drug-makers to keep generic versions of Provigil off the market until 2012. ``We were able to get six more years of patent protection,'' he said. ``That's $4 billion in sales that no one expected.'' Unfortunately, that $4 billion came from the pockets of American consumers. At their core, pay-for-delay agreements permit brand-name drug companies to pay off competitors not to compete. The brand name drug company wins because it reaps the profits from eliminating competition. The generic drug company wins because they get paid millions of dollars to do nothing more than drop their patent challenge. But consumers and the American taxpayer loses, to the tune of billions of dollars in higher drug costs every year. Agreements between competitors, like these, are the most nefarious type of antitrust violation. Unfortunately, when the FTC has challenged ``pay-for-delay'' agreements, courts have favored big industry interests over consumers. Courts have wrongly concluded that this type of basic antitrust violation is immune from antitrust law because it involves the settlement of a patent challenge. In other words, it is permissible for competitors to collude to when it involves a patented drug and in order to keep lower cost drugs out of consumers' medicine cabinets. These misguided court rulings are what make passage of our legislation so vital. For years, we have seen the use of anticompetitive agreements increase. From 2000 to 2004, there were twenty settlements of drug patent litigation, but we saw no pay-for-delay agreements because drug companies assumed they violated antitrust law. But, these settlements became all too prevalent following three courts of appeals decisions in 2005 which effectively found them to be per se legal and prevented the FTC from taking action on behalf of consumers against these settlements. In the 2 years following these 2005 court decisions, 28 out of 61 patent settlements had provisions in which the brand name drug company made payments to the generic manufacturer in exchange for the generic manufacturer agreeing to delay entry of generic competition. Clearly, pay-for-delay agreements are not necessary to settle a case because during that same time, 33 cases settled without delaying entry to consumers in exchange for a payment. Last fall, the FTC released a report which found a record 19 pay-for- delay settlements in fiscal year 2009, the highest ever recorded in a single year. This report convincingly demonstrates the danger these deals pose to consumers. Each of these deals will lead to higher drug costs for millions of consumers. Each of these deals cost the Federal Government large sums in taxpayer money in higher drug reimbursement costs. Each of these deals deprive consumers of needed drug competition. The time for action to stop these anti-consumer, anticompetitive back room deals is now. Our legislation passed the Judiciary Committee last Congress with a strong bipartisan majority. The Judiciary Committee made several changes to the legislation as it is was introduced in the 111th Congress, and the legislation I am introducing today includes all of these changes. I believe the current version of this legislation represents a well balanced approach to this problem. Under my bill, these settlement agreements will be presumed to be illegal. However, the FTC will need to pursue legal action prior to these agreements being found illegal, and the drug companies will have an opportunity to convince the Judge why these agreement are not in fact anticompetitive. If found illegal, the FTC will have the authority to assess civil penalties up to three times the profits gained by the drug companies. I believe this measure strikes the right balance. By presuming these agreements to be illegal, and armed with strong civil penalties, this bill will deter drug companies from entering into anti-competitive and anti-consumer ``pay-for-delay'' settlements in the first place. By giving the drug companies a hearing before a neutral tribunal, the drug companies will have their day in court to go forward with those agreements which truly do not harm competition. The evidence is clear. These ``pay-for-delay'' agreements between brand name and generic drug companies deny consumers the benefits of generic drug competition and costs consumers and the Federal Government billions of dollars. My legislation will give the FTC strong remedies to prevent these agreements when it concludes they harm competition. Millions and millions of Americans that struggle to pay their prescription drug costs and who need low priced generic alternatives are awaiting action on this amendment. I urge my colleagues support for the Preserve Access to Affordable Generics Act. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. Chairman, I rise today to introduce the Preserve Access to Affordable Generics Act. This bipartisan legislation will dramatically reduce prescription drug costs by preventing one of the most egregious, anti-consumer tactics ever devised to keep generic drugs off the market. This amendment would combat ``pay-for-delay'' agreements between brand name and generic drug companies which delay entry of low-cost generic competition. These pay-for-delay agreements are estimated by the FTC to cost consumers $3.5 billion each year, and are estimated by the CBO estimates to cost the federal government more than $2.8 billion over the next decade in higher drug reimbursement payments. In 2008, $235 billion were spent on prescription drugs in the United States. Generic drugs play a crucial role in containing rising prescription drug costs, by offering consumers therapeutically identical alternatives to brand-name drugs, at a significantly reduced cost. Studies have shown that generic competition to brand name drugs can reduce drug prices by as much as 80 percent. However, in recent years generic entry has frequently been blocked by anti-competitive, anti-consumer agreements between brand-name and generic drug manufacturers that limit, delay, or otherwise prevent competition from generic drugs. In pay-for-delay agreements, a brand-name drug manufacturer settles patent litigation by paying off a generic competitor with large amounts of cash, or other valuable consideration to stay off the market until expiration--or a time close to expiration--of the brand-name patent. For example, in 2006, the CEO of Cephalon, which makes the sleep disorder pill Provigil, praised the deals his company made with four generic drug-makers to keep generic versions of Provigil off the market until 2012. ``We were able to get six more years of patent protection,'' he said. ``That's $4 billion in sales that no one expected.'' Unfortunately, that $4 billion came from the pockets of American consumers. At their core, pay-for-delay agreements permit brand-name drug companies to pay off competitors not to compete. The brand name drug company wins because it reaps the profits from eliminating competition. The generic drug company wins because they get paid millions of dollars to do nothing more than drop their patent challenge. But consumers and the American taxpayer loses, to the tune of billions of dollars in higher drug costs every year. Agreements between competitors, like these, are the most nefarious type of antitrust violation. Unfortunately, when the FTC has challenged ``pay-for-delay'' agreements, courts have favored big industry interests over consumers. Courts have wrongly concluded that this type of basic antitrust violation is immune from antitrust law because it involves the settlement of a patent challenge. In other words, it is permissible for competitors to collude to when it involves a patented drug and in order to keep lower cost drugs out of consumers' medicine cabinets. These misguided court rulings are what make passage of our legislation so vital. For years, we have seen the use of anticompetitive agreements increase. From 2000 to 2004, there were twenty settlements of drug patent litigation, but we saw no pay-for-delay agreements because drug companies assumed they violated antitrust law. But, these settlements became all too prevalent following three courts of appeals decisions in 2005 which effectively found them to be per se legal and prevented the FTC from taking action on behalf of consumers against these settlements. In the 2 years following these 2005 court decisions, 28 out of 61 patent settlements had provisions in which the brand name drug company made payments to the generic manufacturer in exchange for the generic manufacturer agreeing to delay entry of generic competition. Clearly, pay-for-delay agreements are not necessary to settle a case because during that same time, 33 cases settled without delaying entry to consumers in exchange for a payment. Last fall, the FTC released a report which found a record 19 pay-for- delay settlements in fiscal year 2009, the highest ever recorded in a single year. This report convincingly demonstrates the danger these deals pose to consumers. Each of these deals will lead to higher drug costs for millions of consumers. Each of these deals cost the Federal Government large sums in taxpayer money in higher drug reimbursement costs. Each of these deals deprive consumers of needed drug competition. The time for action to stop these anti-consumer, anticompetitive back room deals is now. Our legislation passed the Judiciary Committee last Congress with a strong bipartisan majority. The Judiciary Committee made several changes to the legislation as it is was introduced in the 111th Congress, and the legislation I am introducing today includes all of these changes. I believe the current version of this legislation represents a well balanced approach to this problem. Under my bill, these settlement agreements will be presumed to be illegal. However, the FTC will need to pursue legal action prior to these agreements being found illegal, and the drug companies will have an opportunity to convince the Judge why these agreement are not in fact anticompetitive. If found illegal, the FTC will have the authority to assess civil penalties up to three times the profits gained by the drug companies. I believe this measure strikes the right balance. By presuming these agreements to be illegal, and armed with strong civil penalties, this bill will deter drug companies from entering into anti-competitive and anti-consumer ``pay-for-delay'' settlements in the first place. By giving the drug companies a hearing before a neutral tribunal, the drug companies will have their day in court to go forward with those agreements which truly do not harm competition. The evidence is clear. These ``pay-for-delay'' agreements between brand name and generic drug companies deny consumers the benefits of generic drug competition and costs consumers and the Federal Government billions of dollars. My legislation will give the FTC strong remedies to prevent these agreements when it concludes they harm competition. Millions and millions of Americans that struggle to pay their prescription drug costs and who need low priced generic alternatives are awaiting action on this amendment. I urge my colleagues support for the Preserve Access to Affordable Generics Act. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL. Mr. President, I rise today to introduce legislation essential to restoring competition to the nation's crucial freight railroad sector. Freight railroads are essential to shipping a myriad of vital goods, everything from coal used to generate electricity to grain used for basic foodstuffs. But for decades the freight railroads have been insulated from the normal rules of competition followed by almost all other parts of our economy by an outmoded and unwarranted antitrust exemption. So today I am introducing, along with my colleagues, the Railroad Antitrust Enforcement Act of 2011. This bipartisan legislation will eliminate the obsolete antitrust exemptions that protect freight railroads from competition. This legislation is identical to the legislation that was reported out of the Judiciary Committee in the last Congress by a unanimous 15-0 vote. Our legislation will eliminate unwarranted and outmoded antitrust exemptions that protect freight railroads from competition and result in higher prices to millions of consumers every day. Consolidation in the railroad industry in recent years has resulted in only four Class I railroads providing nearly 90 percent of the Nation's freight rail transportation, as measured by revenue. The harmful result of this industry concentration for railroad shippers is well documented. A 2006 General Accounting Office Report found that shippers in many geographic areas ``may be paying excessive rates due to a lack of competition in these markets.'' These unjustified cost increases cause consumers to suffer higher electricity bills because a utility must pay for the high cost of transporting coal, result in higher prices for goods produced by manufacturers who rely on railroads to transport raw materials, and reduce earnings for American farmers who ship their products by rail and raise food prices paid by consumers. A recent staff report, issued September 15, 2010, of the Committee on Commerce, Science, and Transportation also makes clear how railroads have benefited from the unique combination of deregulation and large- scale antitrust immunity, to the detriment of rail shippers and consumers. This Report--titled ``The Current State of the Class I Freight Rail Industry''--stated that ``[t]he four Class I railroads that today dominate the U.S. rail shipping market are achieving returns on revenue and operating ratios that rank them among the most profitable businesses in the U.S. economy.'' The four largest railroads nearly doubled their collective profit margins in the last decade to 13 percent ranking the railroad industry the fifth most profitable industry as ranking by Fortune magazine. Increased concentration and lack of antitrust scrutiny have had clear price effects--according to the Commerce Committee Report, since 2004, ``Class I railroads have been raising prices by an average of 5 percent a year above inflation.'' The recent Commerce Committee Report concluded that ``Class I freight railroads have regained the pricing power they lacked in the 1980s, and are now some of the most highly profitable businesses in the U.S. economy.'' Given the industry's concentration and pricing power, the case for full fledged application of the antitrust laws is plain. The ill-effects of railroad industry consolidation are exemplified in the case of ``captive shippers''--industries served by only one railroad. Over the past several years, these captive shippers have faced spiking rail rates. They are the victims of monopolistic practices and price gouging by the single railroad that serves them, price increases which they are forced to pass along into the price of their products, and ultimately, to consumers. And in many cases, the ordinary protections of antitrust law are unavailable to these captive shippers--instead, the railroads are protected by a series of outmoded exemptions from the normal rules of antitrust law to which all other industries must abide. These unwarranted antitrust exemptions have put the American consumer at risk, and in Wisconsin, victims of a lack of railroad competition abound. From Dairyland Power Cooperative in La Crosse to Wolf River Lumber in New London, companies in my state are feeling the crunch of years of railroad consolidation. To help offset a 93 percent increase in shipping rates in 2006, Dairyland Power Cooperative had to raise electricity rates by 20 percent. The reliability, efficiency, and affordability of freight rail have all declined, and Wisconsin consumers feel the pinch. And similar stories exist across the country. We held a hearing at the Antitrust Subcommittee in the 110th Congress which detailed numerous instances of anti-competitive conduct by the dominant freight railroads and at which railroad shippers testified as to the need to repeal the outmoded and unwarranted antitrust exemptions which left them without remedies. Dozens of organizations, unions and trade groups affected by monopolistic railroad conduct endorsed the Railroad Antitrust Enforcement Act in the last Congress. Supporters of the legislation include 20 state Attorneys General, the National Association of Regulatory Utility Commissioners, NARUC, the Consumers Federation of America, Consumers Union, the American Farm Bureau Federation, American Chemistry Council, the American Corn Growers Association, the American Forest and Paper Association, the American Public Power Association, and the American Bar Association Antitrust Section. The current antitrust exemptions protect a wide range of railroad industry conduct from scrutiny by governmental antitrust enforcers. Railroad mergers and acquisitions are exempt from antitrust law and are reviewed solely by the Surface Transportation Board. Railroads that engage in collective ratemaking are also exempt from antitrust law. Railroads subject to the regulation of the Surface Transportation Board are also exempt from private antitrust lawsuits seeking the termination of anti-competitive practices via injunctive relief. Our bill will eliminate these exemptions. No good reason exists for them. While railroad legislation in recent decades--including most notably the Staggers Rail Act of 1980-- deregulated much railroad rate setting from the oversight of the Surface Transportation Board, these obsolete antitrust exemptions remained in place, insulating a consolidating industry from obeying the rules of fair competition. And there is no reason to treat railroads any differently from dozens of other regulated industries in our economy that are fully subject to antitrust law--whether the telecommunications sector regulated by the FCC, or the aviation industry regulation by the Department of Transportation, just name just two examples. Our bill will bring railroad mergers and acquisitions under the purview of the Clayton Act, allowing the federal government, state attorneys general and private parties to file suit to enjoin anti-competitive mergers and acquisitions. It will restore the review of these mergers to the agencies where they belong--the Justice Department's Antitrust Division and the Federal Trade Commission. It will eliminate the exemption that prevents FTC's scrutiny of railroad common carriers. It will eliminate the antitrust exemption for railroad collective ratemaking. It will allow state attorneys general and other private parties to sue railroads for treble damages and injunctive relief for violations of the antitrust laws, including collusion that leads to excessive and unreasonable rates. This legislation will force railroads to play by the rules of free competition like all other businesses. Significantly, our bill will not affect in way the jurisdiction of the Surface Transportation Board to regulate freight railroads. It will in no way limit or alter the authority of the STB; the STB will continue to exercise full jurisdiction over the railroad industry. In sum, by clearing out this thicket of outmoded antitrust exemptions, railroads will be subject to the same laws as the rest of the economy. Government antitrust enforcers will finally have the tools to prevent anti-competitive transactions and practices by railroads. Likewise, private parties will be able to utilize the antitrust laws to deter anti-competitive conduct and to seek redress for their injuries. It is time to put an end to the abusive practices of the Nation's freight railroads. On the Antitrust Subcommittee, we have seen that in industry after industry, vigorous application of our Nation's antitrust laws is the best way to eliminate barriers to competition, to end monopolistic behavior, to keep prices low and quality of service high. The railroad industry is no different. All those who rely on railroads to ship their products--whether it is an electric utility for its coal, a farmer to ship grain, or a factory to acquire its raw materials or ship out its finished product--deserve the full application of the antitrust laws to end the anti-competitive abuses all too prevalent in this industry today. I urge my colleagues support the Railroad Antitrust Enforcement Act of 2011. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL. Mr. President, I rise today to introduce legislation essential to consumers receiving the best prices on every product from electronics to clothing to groceries. My bill, the Discount Pricing Consumer Protection Act, will restore the nearly century old rule that it is illegal under antitrust law for a manufacturer to set a minimum price below which a retailer cannot sell the manufacturer's product, a practice known as ``resale price maintenance'' or ``vertical price fixing.'' This bill wil ensure that consumers can obtain discount prices at the very time they need them the most. In June 2007, overturning a 96-year-old precedent, a narrow 5-4 Supreme Court majority in the Leegin case turned the Sherman Act on its head to overturn this basic rule of the marketplace which has served consumers well for nearly a century. My bill--identical to legislation I introduced in the last two Congresses--will correct this misinterpretation of antitrust law and restore the per se ban on vertical price fixing. My bill has been endorsed by the National Association of Attorneys General, 38 state attorneys general, as well as numerous antitrust experts, including former FTC Chairman Pitofsky and former FTC Commissioner Harbour, and the leading consumer groups, including Consumers Union, the Consumers Federation of America, and the American Antitrust Institute. This legislation passed the Judiciary Committee last year. The reasons for this legislation are compelling. Allowing manufacturers to set minimum retail prices will threaten the very existence of discounting and discount stores, and lead to higher prices for consumers. For nearly a century the rule against vertical price fixing permitted discounters to sell goods at the most competitive price. Many credit this rule with the rise of today's low price, discount retail giants--stores like Target, Best Buy, Walmart, and the internet sites Amazon and EBay, which offer consumers a wide array of highly desired products at discount prices. Ample evidence exists of the pernicious effect of allowing vertical price fixing. For nearly 40 years until 1975 when Congress passed the Consumer Goods Pricing Act, Federal law permitted States to enact so- called ``fair trade'' laws legalizing vertical price fixing. Studies the Department of Justice conducted in the late 1960s indicated that prices were between 18-27 percent higher in the States that allowed vertical price fixing than the States that had not passed such ``fair trade'' laws, costing consumers at least $2.1 billion per year at that time. Given the tremendous economic growth in the intervening decades, the likely harm to consumers if vertical price fixing were permitted is even greater today. In his dissenting opinion in the Leegin case, Justice Breyer estimated that if only 10 percent of manufacturers engaged in vertical price fixing, the volume of commerce affected today would be $300 billion, translating into retail bills that would average $750 to $1,000 higher for the average family of four every year. The experience of the last three years since the Leegin decision has begun to confirm our fears regarding the dangers from permitting vertical price fixing. The Wall Street Journal has reported that more than 5,000 companies have implemented minimum pricing policies. A new business--known as ``internet monitors''--has materialized for companies that scour the Internet in search of retailers selling products at a bargain. When such bargain sellers are detected, the manufacturer is alerted so that they can demand the seller end its discounting. There have been many reports of everything from consumer electronics and video games to baby products and toys, rental cars and bicycles being subject to minimum retail pricing policies. Defenders of the Leegin decision argue that today's giant retailers such as Wal-Mart, Best Buy or Target can ``take care of themselves'' and have sufficient market power to fight manufacturer efforts to impose retail prices. Whatever the merits of that argument, I am particularly worried about the effect of this new rule permitting minimum vertical price fixing on the next generation of discount retailers. If new discount retailers can be prevented from selling products at a discount at the behest of an established retailer worried about the competition, we will imperil an essential element of retail competition so beneficial to consumers. In overturning the per se ban on vertical price fixing, the Supreme Court in Leegin announced this practice should instead be evaluated under what is known as the ``rule of reason.'' Under the rule of reason, a business practice is illegal only if it imposes an ``unreasonable'' restraint on competition. The burden is on the party challenging the practice to prove in court that the anti-competitive effects of the practice outweigh its justifications. In the words of the Supreme Court, the party challenging the practice must establish the restraint's ``history, nature and effect.'' Whether the businesses involved possess market power ``is a further, significant consideration'' under the rule of reason. In short, establishing that any specific example of vertical price fixing violates the rule of reason is an onerous and difficult burden for a plaintiff in an antitrust case. Parties complaining about vertical price fixing are likely to be small discount stores or consumers with limited resources to engage in lengthy and complicated antitrust litigation. These plaintiffs are unlikely to possess the facts and complicated economic evidence necessary to make the extensive showing necessary to prove a case under the ``rule of reason.'' In the words of former FTC Commissioner Pamela Jones Harbour, applying the rule of reason to vertical price fixing ``is a virtual euphemism for per se legality.'' Our Antitrust Subcommittee conducted two extensive hearings into the Leegin decision and the likely effects of abolishing the ban on vertical price fixing in the last two Congresses. Both former FTC Chairman Robert Pitofsky and former FTC Commissioner Harbour strongly endorsed restoring the ban on vertical price fixing. Marcy Syms, CEO of the Syms discount clothing stores, and a senior executive of the Burlington Coat Factory discount chain testified as well, both citing the likely dangers to the ability of discounters such as Syms to survive after abolition of the rule against vertical price fixing. Ms. Syms also stated that ``it would be very unlikely for her to bring an antitrust suit'' challenging vertical price fixing under the rule of reason because her company ``would not have the resources, knowledge or a strong enough position in the market place to make such action prudent.'' Our examination of this issue has produced compelling evidence for the continued necessity of a ban on vertical price fixing to protect discounting and low prices for consumers. The Discount Pricing Consumer Protection Act will accomplish this goal. My legislation is quite simple and direct. It would simply add one sentence to Section 1 of the Sherman Act--the basic provision addressing combinations in restraint of trade--a statement that any agreement with a retailer, wholesaler or distributor setting a price below which a product or service cannot be sold violates the law. No balancing or protracted legal proceedings will be necessary. Should a manufacturer enter into such an agreement it will unquestionably violate antitrust law. The uncertainty and legal impediments to antitrust enforcement of vertical price fixing will be replaced by simple and clear legal rule--a legal rule that will promote low prices and discount competition to the benefit of consumers every day. In the last few decades, millions of consumers have benefited from an explosion of retail competition from new large discounters in virtually every product, from clothing to electronics to groceries, in both ``big box'' stores and on the Internet. Our legislation will correct the Supreme Court's abrupt change to antitrust law, and will ensure that today's vibrant competitive retail marketplace and the savings gained by American consumers from discounting will not be jeopardized by the abolition of the ban on vertical price fixing. I urge my colleagues to support this bill. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL. Mr. President, today I am reintroducing the Fast Track to College Act, a bill to support the expansion of dual enrollment programs and Early College High Schools. Such programs allow young people to earn up to two years of college credit while also earning their high school diploma. I believe the key to our country's economic recovery is a strong investment in our young people. By investing in education, we ensure that today's students are well prepared to compete in a global economy. Far too many of our students are falling behind in school, and as students struggle with their studies or drop out of school altogether, their futures and the health of our workforce are at risk. Young people who drop out of high school are at increased risk for negative outcomes such as unemployment and incarceration, as well as reliance on public assistance for healthcare, housing, and other basic needs--outcomes that have high costs for their communities and our economy. Conversely, adults who earn bachelor's degrees earn on average two-thirds more than high school graduates and $1 million more than high school dropouts over their working lives. Studies show many youth drop out because they don't see a practical reason to complete high school or go on to get a college degree. Maybe they don't think they can get into college, don't think they can afford to go, or just don't see the point in going. Dual enrollment programs and Early College High Schools address these issues by showing students that they can succeed in college courses while saving time and money. They don't drop out because they can see that they are on track to a degree--and ultimately a job. By earning college credit, and possibly even an Associate's Degree, students are better prepared after high school to continue their education or pursue career training. That is why I ask my colleagues to support this bill, which provides competitive grant funding for Early College High Schools and other dual enrollment programs that allow low-income students to earn college credit and a high school diploma at the same time. These programs put students on the fast track to college and increase the odds that they will not only graduate, but also go on to continue their education and secure higher-paying jobs. This bill authorizes $140,000,000 for competitive 6-year grants to schools, with priority given to schools that serve low-income students. The funding will help defray the costs of implementing new programs, strengthening existing programs, and providing students and teachers with the resources they need to succeed in early college high schools and other dual enrollment programs. The bill also includes $10 million for states to provide support for these programs, as well as an evaluation component so we can measure the program's effectiveness. I am proud to sponsor this legislation, with the support of Senator Brown of Ohio, because I believe this investment in our schools will help solve the dropout crisis and secure America's future by ensuring that all young people can compete in today's global economy. Further, I believe that all children, regardless of income or other factors, deserve equal opportunities to fulfill their potential, and it is both morally and fiscally responsible for this Congress to invest in high- quality educational programs that help our youth reach their potential. I urge my colleagues to support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL. Mr. President, I rise today to introduce three bills that I believe will be important for our small businesses, especially our smaller manufacturers. In each of these bills, there is an emphasis on keeping our research and development and manufacturing here in the United States, rewarding our innovative American businesses with predictable credits and equitable treatment, and creating good paying jobs. The first bill, S. 155, is designed to incentivize keeping jobs in the United States by increasing the existing Research & Development tax credit for companies that produce most of their goods domestically. The Domestic Jobs Innovation Bonus Act would create a bonus R&D Credit that increases incrementally to reward a higher percentage of domestic production. To earn the bonus credit, a company would need to make at least half of their products domestically--and for doing so would receive an additional 2 percentage points on top of the existing R&D credit. The credit would max out at a 10 percentage point increase for companies with 90 percent to 100 percent of their receipts from domestic production. For example, a company with 100 percent domestic production that would normally receive a 20 percent R&D tax credit would receive a 30 percent credit under this proposal. To be clear, this isn't a tax credit that will benefit every company that has a presence in the United States. It may not benefit many large, multi-national corporations, but those companies will still have access to the existing R&D Credit, which I support as well. It is my hope that a credit like this could convince a company that is deciding whether to manufacture and research here or abroad, to choose America. I am introducing a second bill, S. 156, with Senators Corker and Alexander that would establish a uniform energy efficiency descriptor for all water heaters and improve the testing methods by which that descriptor is determined. Currently, water heaters are lumped into two categories under two federal statutes, based on arbitrary gallon capacity and energy input ratings. ``Smaller'' water heaters are covered by the National Appliance Energy Conservation Act, NAECA, and must be rated using an energy factor or EF rating. ``Larger'' water heaters are within the scope of the Energy Policy Act, EPACT, and must be rated using a thermal efficiency or TE rating. Not only do the testing methods differ, but a manufacturer is forbidden to place an EF rating on a TE-sized unit, and vice-versa. This legislation would direct the Department of Energy to work with industry stakeholders to develop a uniform energy efficiency descriptor that applies to all sizes of water heaters. It also would develop a test method to accurately determine that descriptor for all types of water heaters. It is my hope that the water heating manufacturing community can develop and implement the new test method and descriptor that will eliminate confusion and enable consumers and business owners to make informed purchasing decisions on water heaters. In today's tough economy, energy bills continue to stretch family budgets. Families can save money and conserve energy if they have accurate information about how much energy home appliances consume. The difference between EF and TE ratings was based on the assumption that smaller units were exclusively for residential uses while larger units were exclusively for commercial purposes. Due to advances in manufacturing technology, the assumptions underlying the earlier dividing line are no longer accurate. In fact, both larger and smaller units made by leading U.S. manufacturers are used in residences without regard to which Federal law applies. Yet, Federal legislation continues to be written by taking this distinction into account. In particular, these American companies are affected by the current disparate energy standards because it can disadvantage some of their products. Establishing one standard will help breakdown a patchwork of incentives and efficiency designations at both the state and federal level. For example, water heaters rated with a TE rating are not eligible for the ENERGY STAR label, and accordingly, not eligible for many state appliance rebate programs that link their incentives to an ENERGY STAR designation. This bill will make it so all products are competing on a level playing field for all incentives. In addition to the energy savings that this bill will provide, it is also about the jobs potential for companies making these cutting-edge products. A globally-recognized cluster of water technology companies is emerging in the City of Milwaukee and surrounding counties. An important part of this effort is innovative water heater technologies. Incentivizing these products through predictable and equitable standards is vital to these companies. The third bill, S. 157, would extend the Section 48 investment tax credit to solar light pipe technology. This is a promising new technology that could save our businesses money on their electricity bills, and reduce our overall energy usage--two goals on which we can all agree. Light pipes collect natural light, and then through the use of sensor technology, automatically dim the other lights in a building--thereby using less electricity for the same amount of light. Despite the clear benefits of the technology, high cost has kept many businesses from using light pipes. Adding this technology to Section 48 will provide that boost that these businesses need to justify the expense. I became aware of this technology because one of the companies that makes it is based in Manitowoc, Wisconsin. This company, Orion Energy Systems, employs about 250 people, and has been growing even during this tough economic time. In addition to light pipes, Orion makes energy efficient lighting systems, and partners with wind and solar power companies to significantly reduce the energy costs for many of our largest and most distinguished companies. Orion technology has been deployed at more than 6,000 facilities, and has worked with 126 of the Fortune 500 companies. Since 2001, Orion customers have saved more than $1 billion in electricity costs by displacing nearly 600 megawatts. This credit will help Orion and companies like it create thousands of jobs through the production of the technology as well as installing it. I urge my colleagues to support all of these bills, and I hope that they are enacted as part of an agenda that focuses on innovation, job creation, and shoring up our vital manufacturing sector.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce legislation essential to restoring competition to the nation's crucial freight railroad sector. Freight railroads are essential to shipping a myriad of vital goods, everything from coal used to generate electricity to grain used for basic foodstuffs. But for decades the freight railroads have been insulated from the normal rules of competition followed by almost all other parts of our economy by an outmoded and unwarranted antitrust exemption. So today I am introducing, along with my colleagues, the Railroad Antitrust Enforcement Act of 2011. This bipartisan legislation will eliminate the obsolete antitrust exemptions that protect freight railroads from competition. This legislation is identical to the legislation that was reported out of the Judiciary Committee in the last Congress by a unanimous 15-0 vote. Our legislation will eliminate unwarranted and outmoded antitrust exemptions that protect freight railroads from competition and result in higher prices to millions of consumers every day. Consolidation in the railroad industry in recent years has resulted in only four Class I railroads providing nearly 90 percent of the Nation's freight rail transportation, as measured by revenue. The harmful result of this industry concentration for railroad shippers is well documented. A 2006 General Accounting Office Report found that shippers in many geographic areas ``may be paying excessive rates due to a lack of competition in these markets.'' These unjustified cost increases cause consumers to suffer higher electricity bills because a utility must pay for the high cost of transporting coal, result in higher prices for goods produced by manufacturers who rely on railroads to transport raw materials, and reduce earnings for American farmers who ship their products by rail and raise food prices paid by consumers. A recent staff report, issued September 15, 2010, of the Committee on Commerce, Science, and Transportation also makes clear how railroads have benefited from the unique combination of deregulation and large- scale antitrust immunity, to the detriment of rail shippers and consumers. This Report--titled ``The Current State of the Class I Freight Rail Industry''--stated that ``[t]he four Class I railroads that today dominate the U.S. rail shipping market are achieving returns on revenue and operating ratios that rank them among the most profitable businesses in the U.S. economy.'' The four largest railroads nearly doubled their collective profit margins in the last decade to 13 percent ranking the railroad industry the fifth most profitable industry as ranking by Fortune magazine. Increased concentration and lack of antitrust scrutiny have had clear price effects--according to the Commerce Committee Report, since 2004, ``Class I railroads have been raising prices by an average of 5 percent a year above inflation.'' The recent Commerce Committee Report concluded that ``Class I freight railroads have regained the pricing power they lacked in the 1980s, and are now some of the most highly profitable businesses in the U.S. economy.'' Given the industry's concentration and pricing power, the case for full fledged application of the antitrust laws is plain. The ill-effects of railroad industry consolidation are exemplified in the case of ``captive shippers''--industries served by only one railroad. Over the past several years, these captive shippers have faced spiking rail rates. They are the victims of monopolistic practices and price gouging by the single railroad that serves them, price increases which they are forced to pass along into the price of their products, and ultimately, to consumers. And in many cases, the ordinary protections of antitrust law are unavailable to these captive shippers--instead, the railroads are protected by a series of outmoded exemptions from the normal rules of antitrust law to which all other industries must abide. These unwarranted antitrust exemptions have put the American consumer at risk, and in Wisconsin, victims of a lack of railroad competition abound. From Dairyland Power Cooperative in La Crosse to Wolf River Lumber in New London, companies in my state are feeling the crunch of years of railroad consolidation. To help offset a 93 percent increase in shipping rates in 2006, Dairyland Power Cooperative had to raise electricity rates by 20 percent. The reliability, efficiency, and affordability of freight rail have all declined, and Wisconsin consumers feel the pinch. And similar stories exist across the country. We held a hearing at the Antitrust Subcommittee in the 110th Congress which detailed numerous instances of anti-competitive conduct by the dominant freight railroads and at which railroad shippers testified as to the need to repeal the outmoded and unwarranted antitrust exemptions which left them without remedies. Dozens of organizations, unions and trade groups affected by monopolistic railroad conduct endorsed the Railroad Antitrust Enforcement Act in the last Congress. Supporters of the legislation include 20 state Attorneys General, the National Association of Regulatory Utility Commissioners, NARUC, the Consumers Federation of America, Consumers Union, the American Farm Bureau Federation, American Chemistry Council, the American Corn Growers Association, the American Forest and Paper Association, the American Public Power Association, and the American Bar Association Antitrust Section. The current antitrust exemptions protect a wide range of railroad industry conduct from scrutiny by governmental antitrust enforcers. Railroad mergers and acquisitions are exempt from antitrust law and are reviewed solely by the Surface Transportation Board. Railroads that engage in collective ratemaking are also exempt from antitrust law. Railroads subject to the regulation of the Surface Transportation Board are also exempt from private antitrust lawsuits seeking the termination of anti-competitive practices via injunctive relief. Our bill will eliminate these exemptions. No good reason exists for them. While railroad legislation in recent decades--including most notably the Staggers Rail Act of 1980-- deregulated much railroad rate setting from the oversight of the Surface Transportation Board, these obsolete antitrust exemptions remained in place, insulating a consolidating industry from obeying the rules of fair competition. And there is no reason to treat railroads any differently from dozens of other regulated industries in our economy that are fully subject to antitrust law--whether the telecommunications sector regulated by the FCC, or the aviation industry regulation by the Department of Transportation, just name just two examples. Our bill will bring railroad mergers and acquisitions under the purview of the Clayton Act, allowing the federal government, state attorneys general and private parties to file suit to enjoin anti-competitive mergers and acquisitions. It will restore the review of these mergers to the agencies where they belong--the Justice Department's Antitrust Division and the Federal Trade Commission. It will eliminate the exemption that prevents FTC's scrutiny of railroad common carriers. It will eliminate the antitrust exemption for railroad collective ratemaking. It will allow state attorneys general and other private parties to sue railroads for treble damages and injunctive relief for violations of the antitrust laws, including collusion that leads to excessive and unreasonable rates. This legislation will force railroads to play by the rules of free competition like all other businesses. Significantly, our bill will not affect in way the jurisdiction of the Surface Transportation Board to regulate freight railroads. It will in no way limit or alter the authority of the STB; the STB will continue to exercise full jurisdiction over the railroad industry. In sum, by clearing out this thicket of outmoded antitrust exemptions, railroads will be subject to the same laws as the rest of the economy. Government antitrust enforcers will finally have the tools to prevent anti-competitive transactions and practices by railroads. Likewise, private parties will be able to utilize the antitrust laws to deter anti-competitive conduct and to seek redress for their injuries. It is time to put an end to the abusive practices of the Nation's freight railroads. On the Antitrust Subcommittee, we have seen that in industry after industry, vigorous application of our Nation's antitrust laws is the best way to eliminate barriers to competition, to end monopolistic behavior, to keep prices low and quality of service high. The railroad industry is no different. All those who rely on railroads to ship their products--whether it is an electric utility for its coal, a farmer to ship grain, or a factory to acquire its raw materials or ship out its finished product--deserve the full application of the antitrust laws to end the anti-competitive abuses all too prevalent in this industry today. I urge my colleagues support the Railroad Antitrust Enforcement Act of 2011. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce legislation essential to consumers receiving the best prices on every product from electronics to clothing to groceries. My bill, the Discount Pricing Consumer Protection Act, will restore the nearly century old rule that it is illegal under antitrust law for a manufacturer to set a minimum price below which a retailer cannot sell the manufacturer's product, a practice known as ``resale price maintenance'' or ``vertical price fixing.'' This bill wil ensure that consumers can obtain discount prices at the very time they need them the most. In June 2007, overturning a 96-year-old precedent, a narrow 5-4 Supreme Court majority in the Leegin case turned the Sherman Act on its head to overturn this basic rule of the marketplace which has served consumers well for nearly a century. My bill--identical to legislation I introduced in the last two Congresses--will correct this misinterpretation of antitrust law and restore the per se ban on vertical price fixing. My bill has been endorsed by the National Association of Attorneys General, 38 state attorneys general, as well as numerous antitrust experts, including former FTC Chairman Pitofsky and former FTC Commissioner Harbour, and the leading consumer groups, including Consumers Union, the Consumers Federation of America, and the American Antitrust Institute. This legislation passed the Judiciary Committee last year. The reasons for this legislation are compelling. Allowing manufacturers to set minimum retail prices will threaten the very existence of discounting and discount stores, and lead to higher prices for consumers. For nearly a century the rule against vertical price fixing permitted discounters to sell goods at the most competitive price. Many credit this rule with the rise of today's low price, discount retail giants--stores like Target, Best Buy, Walmart, and the internet sites Amazon and EBay, which offer consumers a wide array of highly desired products at discount prices. Ample evidence exists of the pernicious effect of allowing vertical price fixing. For nearly 40 years until 1975 when Congress passed the Consumer Goods Pricing Act, Federal law permitted States to enact so- called ``fair trade'' laws legalizing vertical price fixing. Studies the Department of Justice conducted in the late 1960s indicated that prices were between 18-27 percent higher in the States that allowed vertical price fixing than the States that had not passed such ``fair trade'' laws, costing consumers at least $2.1 billion per year at that time. Given the tremendous economic growth in the intervening decades, the likely harm to consumers if vertical price fixing were permitted is even greater today. In his dissenting opinion in the Leegin case, Justice Breyer estimated that if only 10 percent of manufacturers engaged in vertical price fixing, the volume of commerce affected today would be $300 billion, translating into retail bills that would average $750 to $1,000 higher for the average family of four every year. The experience of the last three years since the Leegin decision has begun to confirm our fears regarding the dangers from permitting vertical price fixing. The Wall Street Journal has reported that more than 5,000 companies have implemented minimum pricing policies. A new business--known as ``internet monitors''--has materialized for companies that scour the Internet in search of retailers selling products at a bargain. When such bargain sellers are detected, the manufacturer is alerted so that they can demand the seller end its discounting. There have been many reports of everything from consumer electronics and video games to baby products and toys, rental cars and bicycles being subject to minimum retail pricing policies. Defenders of the Leegin decision argue that today's giant retailers such as Wal-Mart, Best Buy or Target can ``take care of themselves'' and have sufficient market power to fight manufacturer efforts to impose retail prices. Whatever the merits of that argument, I am particularly worried about the effect of this new rule permitting minimum vertical price fixing on the next generation of discount retailers. If new discount retailers can be prevented from selling products at a discount at the behest of an established retailer worried about the competition, we will imperil an essential element of retail competition so beneficial to consumers. In overturning the per se ban on vertical price fixing, the Supreme Court in Leegin announced this practice should instead be evaluated under what is known as the ``rule of reason.'' Under the rule of reason, a business practice is illegal only if it imposes an ``unreasonable'' restraint on competition. The burden is on the party challenging the practice to prove in court that the anti-competitive effects of the practice outweigh its justifications. In the words of the Supreme Court, the party challenging the practice must establish the restraint's ``history, nature and effect.'' Whether the businesses involved possess market power ``is a further, significant consideration'' under the rule of reason. In short, establishing that any specific example of vertical price fixing violates the rule of reason is an onerous and difficult burden for a plaintiff in an antitrust case. Parties complaining about vertical price fixing are likely to be small discount stores or consumers with limited resources to engage in lengthy and complicated antitrust litigation. These plaintiffs are unlikely to possess the facts and complicated economic evidence necessary to make the extensive showing necessary to prove a case under the ``rule of reason.'' In the words of former FTC Commissioner Pamela Jones Harbour, applying the rule of reason to vertical price fixing ``is a virtual euphemism for per se legality.'' Our Antitrust Subcommittee conducted two extensive hearings into the Leegin decision and the likely effects of abolishing the ban on vertical price fixing in the last two Congresses. Both former FTC Chairman Robert Pitofsky and former FTC Commissioner Harbour strongly endorsed restoring the ban on vertical price fixing. Marcy Syms, CEO of the Syms discount clothing stores, and a senior executive of the Burlington Coat Factory discount chain testified as well, both citing the likely dangers to the ability of discounters such as Syms to survive after abolition of the rule against vertical price fixing. Ms. Syms also stated that ``it would be very unlikely for her to bring an antitrust suit'' challenging vertical price fixing under the rule of reason because her company ``would not have the resources, knowledge or a strong enough position in the market place to make such action prudent.'' Our examination of this issue has produced compelling evidence for the continued necessity of a ban on vertical price fixing to protect discounting and low prices for consumers. The Discount Pricing Consumer Protection Act will accomplish this goal. My legislation is quite simple and direct. It would simply add one sentence to Section 1 of the Sherman Act--the basic provision addressing combinations in restraint of trade--a statement that any agreement with a retailer, wholesaler or distributor setting a price below which a product or service cannot be sold violates the law. No balancing or protracted legal proceedings will be necessary. Should a manufacturer enter into such an agreement it will unquestionably violate antitrust law. The uncertainty and legal impediments to antitrust enforcement of vertical price fixing will be replaced by simple and clear legal rule--a legal rule that will promote low prices and discount competition to the benefit of consumers every day. In the last few decades, millions of consumers have benefited from an explosion of retail competition from new large discounters in virtually every product, from clothing to electronics to groceries, in both ``big box'' stores and on the Internet. Our legislation will correct the Supreme Court's abrupt change to antitrust law, and will ensure that today's vibrant competitive retail marketplace and the savings gained by American consumers from discounting will not be jeopardized by the abolition of the ban on vertical price fixing. I urge my colleagues to support this bill. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, today I am reintroducing the Fast Track to College Act, a bill to support the expansion of dual enrollment programs and Early College High Schools. Such programs allow young people to earn up to two years of college credit while also earning their high school diploma. I believe the key to our country's economic recovery is a strong investment in our young people. By investing in education, we ensure that today's students are well prepared to compete in a global economy. Far too many of our students are falling behind in school, and as students struggle with their studies or drop out of school altogether, their futures and the health of our workforce are at risk. Young people who drop out of high school are at increased risk for negative outcomes such as unemployment and incarceration, as well as reliance on public assistance for healthcare, housing, and other basic needs--outcomes that have high costs for their communities and our economy. Conversely, adults who earn bachelor's degrees earn on average two-thirds more than high school graduates and $1 million more than high school dropouts over their working lives. Studies show many youth drop out because they don't see a practical reason to complete high school or go on to get a college degree. Maybe they don't think they can get into college, don't think they can afford to go, or just don't see the point in going. Dual enrollment programs and Early College High Schools address these issues by showing students that they can succeed in college courses while saving time and money. They don't drop out because they can see that they are on track to a degree--and ultimately a job. By earning college credit, and possibly even an Associate's Degree, students are better prepared after high school to continue their education or pursue career training. That is why I ask my colleagues to support this bill, which provides competitive grant funding for Early College High Schools and other dual enrollment programs that allow low-income students to earn college credit and a high school diploma at the same time. These programs put students on the fast track to college and increase the odds that they will not only graduate, but also go on to continue their education and secure higher-paying jobs. This bill authorizes $140,000,000 for competitive 6-year grants to schools, with priority given to schools that serve low-income students. The funding will help defray the costs of implementing new programs, strengthening existing programs, and providing students and teachers with the resources they need to succeed in early college high schools and other dual enrollment programs. The bill also includes $10 million for states to provide support for these programs, as well as an evaluation component so we can measure the program's effectiveness. I am proud to sponsor this legislation, with the support of Senator Brown of Ohio, because I believe this investment in our schools will help solve the dropout crisis and secure America's future by ensuring that all young people can compete in today's global economy. Further, I believe that all children, regardless of income or other factors, deserve equal opportunities to fulfill their potential, and it is both morally and fiscally responsible for this Congress to invest in high- quality educational programs that help our youth reach their potential. I urge my colleagues to support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.