Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I will go ahead and in between the sandwich we will have the meat which will be the conversation between the two leaders, but I will proceed with my remarks. Now I am told the leader is indeed on his way, so I will suspend and yield to the distinguished majority leader.

Mr. KYL. Might I inquire of the distinguished minority leader, the majority leader will be here shortly?

Mr. KYL. Mr. President I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KYL. Reserving the right to object, I was going to speak at 6 o'clock. My understanding is the minority leader and the majority leader wanted to intercede with a brief colloquy or comments. In order for my scheduling purposes, I would like to know what the timing then might be. Can the distinguished minority leader give me some idea?

Mr. KYL

Mr. KYL. Mr. President, I rise today to introduce the Preserving Patient Access to Physicians Act of 2005. This bill updates Medicare physician reimbursement for 2006 and 2007 according to the recommendations of the Medicare Payment Advisory Committee (MedPAC). There would be a 2.7 percent increase to the physician payment schedule for 2006 and using the Medicare Economic Index update for the price of inputs, a 2.6 percent increase in 2007. If the schedule is left alone, the consequences for physicians will be a negative. Instead of the 1.5 percent payment increase for 2004 and 2005 which I helped author in the Medicare Modernization Act, there would be a 4.3 percent decrease. The sustainable growth rate (SGR) formula used to calculate physician payment depends on a number of factors: the number of Medicare fee-for- service beneficiaries, the volume and type of services provided, the price of services rendered, changes in regulations and laws. The formula also incorporates other factors such as prescription-drug prices and the gross domestic product. The SGR was intended to control expenditures by basing a given year's physician payment rate on the previous year's performance. Instead, it creates an arbitrary deficiency that continues to force Congress to intervene. There is a debate going on, her CMS has the authority to alter the SGR formula by removing drugs. Setting that aside, though, the fact of the matter is that without Congress stepping in to provide for a physician payment update, it probably will not occur. My Senate colleagues and I have talked for many years about ensuring adequate physician payment because current and past administrations have failed to modify the formula. This formula is not doing what it was intended to do. Therefore, I believe we need to scrap it and start again. My bill is a starting point and proposes amounts for an update, but I would really like to see us go all the way back to the drawing board and answer the fundamental question of how to pay physicians appropriately for their services. I want doctors to be able to continue to assist our nation's seniors, but it is unfair to expect them to practice and to have their reimbursement decrease. Practice expenses, the costs of medical technology, wages for administrative and clinical staff, and medical liability premiums are all increasing while physicians are on track to receive a payment decrease. They cannot afford to continue practicing medicine while receiving reimbursements that do not allow them to even break even. Many are retiring early or threatening to limit the number of Medicare patients they treat. The service of physicians all across the country is vital to our seniors. Almost half a million doctors provide treatment to the 42 million people under the Medicare program. Physicians are often the gateway for access to other medical services and treatments. Not being able to consult a physician results in delayed referrals, delayed treatment and delayed care. In sum, the quality of health care continues to erode and our system does not operate efficiently. Should the scheduled physician reimbursement cuts take effect, the result will be a $710 million decrease in payments to doctors in Arizona over 2006 through 2010. I have heard from virtually every physician with whom I have spoken about the constraints that inadequate payments are placing on their practice of medicine. While many work for hospitals and health systems, in the rural areas, a large number are solo practitioners or in small practices. For these physicians, poor payment hits their practice especially hard. If Medicare rates for doctors are inadequate, many other health care payors will also lack for adequate reimbursement. Other payors such as Medicaid and private insurers often base their payments on Medicare rates. While this bill only addresses Medicare physician payment, the problem of access to services will be compounded if physicians receive reimbursement from other payors that is below the appropriate levels. The cost of addressing the physician payment update is not cheap. Estimates on the cost of this bill are between $25 billion to $35 billion over five years. I await an official score from the Congressional Budget Office. But I point out, that doing nothing to solve this problem may cost us more: more money, more health and access problems, and more physicians leaving the profession. Although this legislation provides for a two year update, we must develop a long range mechanism to pay physicians appropriately. I am grateful for the support of this legislation by my colleague, Senator Stabenow of Michigan, and encourage my other colleagues to support the Preserving Patient Access to Physicians Act of 2005. I ask unanimous consent that a letter of support be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, I rise today to introduce the Streamlined Procedures Act. This legislation will reduce delays in federal courts' review of habeas corpus petitions filed by State prisoners. Currently, many Federal habeas corpus cases require 10, 15, or even 20 years to complete. These delays burden the courts and deny justice to defendants with meritorious claims. They also are deeply unfair to victims of serious, violent crimes. A parent whose child has been murdered, or someone who has been the victim of a violent assault, cannot be expected to ``move on'' without knowing how the case against the attacker has been resolved. Endless litigation, and the uncertainty that it brings, is unnecessarily cruel to these victims and their families. As President Clinton noted of the 1996 habeas-corpus reforms, ``it should not take eight or nine years and three trips to the Supreme Court to finalize whether a person in fact was properly convicted or not.'' For the sake of all parties, we should minimize these delays. The 1996 habeas corpus reforms were supposed to prevent delays in Federal collateral review. Unfortunately, as the Justice Department noted in testimony before the House Crime Subcommittee in March 2003, there still are ``significant gaps [in the habeas corpus statutes] . . . which can result in highly protracted litigation, and some of the reforms that Congress did adopt in 1996 have been substantially undermined in judicial application.'' The Streamlined Procedures Act is designed to fill some of these gaps. First, the SPA imposes reasonable but firm time limits on court of appeals' review of Federal habeas petitions. It requires a court of appeals to decide a habeas appeal within 300 days of the completion of briefing, to rule on a petition for rehearing within 90 days, and to decide a case on rehearing within 120 days before the same panel, or 180 days before an en banc court. As generous as these time limits are, they would make a real difference in some cases. In Morales v. Woodford, 336 F.3d 1136, 9th Cir. 2003, for example, the Ninth Circuit took 3 years to decide the case after briefing was completed. And after issuing its decision, the court took another 16 months to reject a petition for rehearing. Similarly, in Williams v. Woodford, 306 F.3d 665, 9th Cir. 2002, the court waited 25 months to decide the case--and then waited another 27 months to reject a petition for rehearing, for a total delay of almost 4\1/2\ years after appellate briefing had been completed. This is too long for either defendants or victims to have to wait. The SPA also bars courts of appeals from rehearing successive- petition applications on their own motion--current law bars petitions for rehearing or certiorari for such applications, but some courts have interpreted this restriction to not preclude rehearing by the court of appeals sua sponte. The SPA also bars Federal courts from tolling the current 1-year deadline on filing habeas claims for reasons other than those authorized by the statute, and clarifies when a State appeal is pending for purposes of tolling the deadline. In addition, the SPA creates uniform, clear procedures for review of procedurally improper claims. Current judicial caselaw creates a series of different standards for addressing claims in a Federal petition that were not exhausted in state court, that were presented in a late amendment, or that were procedurally defaulted. The SPA sets a uniform standard, allowing procedurally improper claims to go forward only if they present meaningful evidence that the defendant did not commit the crime, with all other improper claims barred. The SPA also expands and improves the special expedited habeas procedures authorized in chapter 154 of the United States Code. These procedures are available to States that establish a system for providing high-quality legal representation to capital defendants. Chapter 154 sets strict time limits on Federal court action and places limits on claims. Currently, however, the court that decides whether a State is eligible for chapter 154 is the same court that would be subject to its time limits. Unsurprisingly, these courts have proven resistant to chapter 154. The SPA would place the eligibility decision in the hands of a neutral party--the U.S. Attorney General, with review of his decision in the DC Circuit, which does not hear habeas appeals. The SPA also makes chapter 154's deadlines more practical by limiting the claims that can be raised under its provisions to those presenting meaningful evidence that the defendant did not commit the crime, and by extending the time for a district court to review and rule on a chapter 154 petition from 6 months to 15 months. The SPA also eliminates duplicative Federal review of minor sentencing errors that already have been judged by State courts to be harmless or not prejudicial. It limits Federal courts to asking only whether the type of sentencing error at issue is one that could not have been harmless. The SPA also applies the deferential review standard enacted in the 1996 reforms to all pending cases. Remarkably, some current habeas petitions still are not governed by the 1996 reforms. The SPA corrects this oversight, ending the need to apply the pre-1996 legal regime to any cases that still are being litigated today. And finally, the SPA limits judicial review of State clemency and pardon decisions, guaranteeing that a State won't be sued for formalizing and regularizing its pardon procedures; it limits defendants' ability to ask Federal courts for investigatory funds without allowing prosecutors to be present and rebut defense allegations; and it guarantees a crime victim's right to be notified of, to be present at, and to speak at a criminal defendant's Federal habeas hearing. To many people, the issues addressed by the SPA--petitions for rehearing, State remedies exhaustion, procedural default, chapter 154, AEDPA deference--may seem abstract and remote. For surviving crime victims, however, these matters can be very concrete. A case recently in the news illustrates the importance of these concerns: that of the man who murdered three member of the Ryen family and Christopher Hughes in Chino Hills, California in June 1983. The killer in that case was an escaped convict from a nearby prison. He has since admitted that he spent 2 days hiding in a vacant house next to the home of the Ryen family. After several unsuccessful telephone calls to friends asking them to give him a ride, the killer took a hatchet and buck knife from the vacant house and set out to find a vehicle. The California Supreme Court describes the rest of what occurred, 53 Cal.3d 771, 794-95: On Saturday, June 4, 1983, the Ryens and Chris Hughes attended a barbecue in Los Serranos, a few miles from the Ryen home in Chino. Chris had received permission to spend the night with the Ryens. Between 9 and 9:30 p.m., they left to drive to the Ryen home. Except for Josh [the Ryen's 8- year-old son], they were never seen alive again. The next morning, June 5, Chris's mother, Mary Hughes, became concerned when he did not come home. A number of telephone calls to the Ryen residence received only busy signals. [Mary's husband] William went to the Ryen home to investigate. William observed the Ryen truck at the home, but not the family station wagon. Although the Ryens normally did not lock the house when they were home, it was locked on this occasion. William walked around the house trying to look inside. When he reached the sliding glass doors leading to the master bedroom, he could see inside. William saw the bodies of his son and Doug and Peggy Ryen on the bedroom floor. Josh was lying between Peggy and Chris. Only Josh appeared alive. William frantically tried to open the sliding door; in his emotional state, he pushed against the fixed portion of the doors, not the sliding door. He rushed to the kitchen door, kicked it in, and entered. As he approached the master bedroom, he found Jessica on the floor, also apparently dead. In the bedroom, William touched the body of his son. It was cold and stiff. William asked Josh who had done it. Josh appeared stunned; he tried to talk but could only make unintelligible sounds. William tried to use a telephone in the house but it did not work. He drove to a neighbor's house seeking help. The police arrived shortly. Doug, Peggy, Chris, and Jessica were dead, the first three in the master bedroom, Jessica in the hallway leading to that bedroom. Josh was alive but in shock, suffering from an obvious neck wound. He was flown by helicopter to Loma Linda University Hospital. The victims died from numerous chopping and stabbing injuries. Doug Ryen had at least 37 separate wounds, Peggy 32, Jessica 46, and Chris 25. The chopping wounds were inflicted by a sharp, heavy object such as a hatchet or axe, the stabbing wounds by a weapon such as a knife. The escaped prisoner who committed this crime was caught 2 months later. Again, he admitted that he stayed in the house next door, but denied any involvement in the murders. According to the California Supreme Court, however, the evidence of defendant's guilt was ``overwhelming.'' Not only had the defendant stayed at the vacant house right next door at the time of the murders; the hatchet used in the murders was taken from the vacant house; shoe prints in the Ryen house matched those in the vacant house and were from a type of shoe issued to prisoners; bloody items, including a prison-issue button, were found in the vacant house; prison-issue tobacco was found in the Ryen station wagon, which was recovered in Long Beach; and defendant's blood type and hair matched that found in the Ryen house. Defendant was convicted of the murders and sentenced to death in 1985, and the California Supreme Court upheld the defendant's conviction and sentence in 1991. The defendant's Federal habeas proceedings began shortly thereafter, and they continue to this day--22 years after the murders. In 2000, the defendant asked the courts for DNA testing of a blood spot in the Ryen house, a t-shirt near the crime scene, and the tobacco found in the car. Despite the overwhelming evidence of his guilt, the courts allowed more testing. All three tests found that the blood and saliva matched defendant, to a degree of certainty of one in 320 billion. Blood on the t-shirt matched both the defendant and one of the victims. One might have thought that this would end the case. Not so. In February 2004, the en banc Ninth Circuit sua sponte authorized defendant to file a second habeas petition to pursue theories that police had planted this DNA evidence. Since the evidence had been in court custody since 1983, the Ninth Circuit's theory not only required police to plan and execute a vast conspiracy to plant the evidence--it also required them to foresee the future invention of the DNA technology that would make that evidence useful in future habeas proceedings. The Streamlined Procedures Act would have made a difference in this case. For example, it would have eliminated the need to return to state court to exhaust new claims, reducing the delay in the Federal proceedings by nearly 3 years. It would have applied the 1996 reforms to this case, allowing deferential review of state factual findings and legal analysis. It would have placed time limits on Federal appeals court decisionmaking and grants of rehearing. And it would have prevented the court of appeals from ordering rehearing of the defendant's successive-petition application on its own motion, thereby barring the current round of O.J. Simpson-style conspiracy-theory litigation. The SPA could have brought this case to closure a long time ago. And this case deserves to be brought to closure. One cannot underestimate the grievous impact that crimes like these have on the families of the victims. Mary Hughes, the mother of 11-year-old Christopher Hughes, who was sleeping over at the Ryen house on the night of the murders, has spoken movingly of the loss of her son: Christopher Hughes loved his bicycle, swimming and showing off for his mom and dad. The 11-year-old's bedroom was filled with swimming trophies and Star Wars collectibles. He was a handsome kid who was chased by a lot of fifth-grade girls on the playground during recess at Our Lady of the Assumption in Claremont. He wasn't short on friends, either. Christopher really liked Joshua Ryen, an 8-year-old boy who lived up the street from him. They would trick-or-treat together on Halloween, play together, and their parents were good friends. On the night of June 4 1983, Christopher asked his parents if he could spend the night at the Ryen house. It was a decision that would change the Hughes family forever. [Mary Hughes'] son Christopher would have been 32 today. She sometimes wonders who he would have been, what he would've looked like, and even during her most solemn moments, she wonders what life would've been like if Cooper had never gone to the Ryens' house. ``It never really ever gets better,'' she said. ``Kevin Cooper robbed him of the chance to be a child, to attend his first dance, to have a girlfriend, and to one day get married and have kids of his own. He robbed me of my child.'' Mary Ann Hughes does have one special memory of her son she holds close to her heart. A week before his death, she took him to see the movie ``Return of the Jedi.'' ``He was so happy. It was such a great day,'' she said. ``It seems like such a small thing, but it's the best memory I have of both of us.'' (Sara Carter, ``He Was at the Beginning of His Life When He Died,'' Inland Valley Daily Bulletin, February 9, 2004.) In light of how much the surviving family already has suffered, one might expect that all participants in the criminal proceedings would take great concern and care for the feelings of the family. Unfortunately, that has not been the case. The Ninth Circuit has proved willing to turn the appeals into a three-ring circus, allowing continual pursuit of the most frivolous conspiracy theories. The impact of these now 22 years of trial and appeals on the victims' families has been predictable: they feel that they and the victims have become irrelevant to the entire process. Shortly after the Ninth Circuit authorized an additional round of appeals in this case, a local newspaper described what the families have experienced: For nearly 20 years, since convicted murderer Kevin Cooper was sentenced to death for the 1983 slayings of a Chino Hills family and their young houseguest, families of the victims have waited silently for the day the hand of justice would grant them peace. For those families, the last two decades have seemed like an eternity. ``I lived through a nightmare,'' said Herbert Ryen, whose brother Douglas Ryen was among those killed, along with Douglas' wife Peggy, their 11-year-old daughter Jessica, and her 10-year-old friend Christopher Hughes. [O]n the morning of Feb. 9, [2004,] the day of Cooper's scheduled death by lethal injection, word came down that the 9th U.S. Circuit Court of Appeals had decided to block the execution. [T]o the Ryen and Hughes families, the stay just hours before Cooper's scheduled execution at San Quentin State Prison was nearly incomprehensible. The indefinite delay has left them in a sort of emotional limbo, questioning whether the legal system had abandoned them. ``The bottom line is that this whole issue is not about Kevin Cooper . . . it is about the death penalty,'' said Mary Ann Hughes, the mother of Christoper Hughes. ``We're so mad-- mad because we feel as though the courts turned their back on my son.'' ``They (Court of Appeals) are holding us hostage,'' Hughes said. For Herbert Ryen and his wife Sue, waiting for justice has taken an equally destructive toll on their lives. The torment their family experienced following the murders, and the subsequent years lost to depression, could never be replaced, he said from his home in Arizona. Mary Ann Hughes said the pain her family suffers is only amplified by the seemingly continuous bombardment of celebrities campaigning against Cooper's execution. She wonders who will cry out in anger for the victims. One former television star and anti-death penalty activist, Mike Farrell of the popular series MASH, spoke of the case on a recent news program. ``He claimed that we must feel relieved since the stay of execution was granted,'' Hughes said. ``How can (Farrell) have the audacity to say he knows what we are feeling?'' Farrell could not be reached for comment. Since Christopher's death, the Hughes family has chosen to remain out of the media spotlight. And until recently, their efforts were successful, due largely to the support of their surviving children, family members and a strong network of close friends, Hughes said. The court's decision Feb. 9 has re-opened the case, forcing the families to re-live the nightmare they have fought so hard to leave behind, they say. Mary Ann Hughes is left wondering about other families who have had loved ones taken from them, about the legal battles they have had to endure in their own quests for justice. She thinks of the parents of Samantha Runion, the 5-year- old Orange County girl who was murdered in 2003, and of what her family could face in the next 20 years. For Bill Hughes, the anguish is intensified--he will forever know the pain of walking into the Ryens' home the morning after the murders, and finding his son, dead and covered in blood near the Ryens' bedroom door. He was also the first to discover Joshua Ryen, also drenched in blood, clinging to life. ``It is a memory he will always have to live with,'' Mary Ann Hughes said. Indeed, time has been no friend to the victims' families, as California's recent appellate court ruling has further denied them closure, she added. ``What this decision has done to our legal system in California is unthinkable,'' she said. ``Somewhere along the line, the courts have got to uphold the law, and we will wait it out until they do.'' (Sara Carter, ``Families of Murder Victims Wait for Justice in Cooper Case,'' Inland Valley Daily Bulletin, February 24, 2004.) Mary Hughes' story demonstrates why the use of Federal judicial power must be measured and fair it illustrates the heavy cost imposed by judicial excess. No statement, however, better explains the gross cruelty caused by allowing endless litigation and appeals in a case like this than that given by one of the surviving victims of the 1983 attack. Josh Ryen was 8 years old when he was stabbed in his parents' bedroom and his parents and sister were murdered. He is now 30 years old. On April 22, 2005, he gave a statement pursuant to the recently enacted Crime Victims' Rights Act in the federal habeas corpus hearing for his parents and sister's killer. I will close my remarks by asking unanimous consent that Josh Ryen's statement be printed in the Record.

Mr. KYL. Mr. President, I rise today to introduce the Preserving Patient Access to Physicians Act of 2005. This bill updates Medicare physician reimbursement for 2006 and 2007 according to the recommendations of the Medicare Payment Advisory Committee (MedPAC). There would be a 2.7 percent increase to the physician payment schedule for 2006 and using the Medicare Economic Index update for the price of inputs, a 2.6 percent increase in 2007. If the schedule is left alone, the consequences for physicians will be a negative. Instead of the 1.5 percent payment increase for 2004 and 2005 which I helped author in the Medicare Modernization Act, there would be a 4.3 percent decrease. The sustainable growth rate (SGR) formula used to calculate physician payment depends on a number of factors: the number of Medicare fee-for- service beneficiaries, the volume and type of services provided, the price of services rendered, changes in regulations and laws. The formula also incorporates other factors such as prescription-drug prices and the gross domestic product. The SGR was intended to control expenditures by basing a given year's physician payment rate on the previous year's performance. Instead, it creates an arbitrary deficiency that continues to force Congress to intervene. There is a debate going on, her CMS has the authority to alter the SGR formula by removing drugs. Setting that aside, though, the fact of the matter is that without Congress stepping in to provide for a physician payment update, it probably will not occur. My Senate colleagues and I have talked for many years about ensuring adequate physician payment because current and past administrations have failed to modify the formula. This formula is not doing what it was intended to do. Therefore, I believe we need to scrap it and start again. My bill is a starting point and proposes amounts for an update, but I would really like to see us go all the way back to the drawing board and answer the fundamental question of how to pay physicians appropriately for their services. I want doctors to be able to continue to assist our nation's seniors, but it is unfair to expect them to practice and to have their reimbursement decrease. Practice expenses, the costs of medical technology, wages for administrative and clinical staff, and medical liability premiums are all increasing while physicians are on track to receive a payment decrease. They cannot afford to continue practicing medicine while receiving reimbursements that do not allow them to even break even. Many are retiring early or threatening to limit the number of Medicare patients they treat. The service of physicians all across the country is vital to our seniors. Almost half a million doctors provide treatment to the 42 million people under the Medicare program. Physicians are often the gateway for access to other medical services and treatments. Not being able to consult a physician results in delayed referrals, delayed treatment and delayed care. In sum, the quality of health care continues to erode and our system does not operate efficiently. Should the scheduled physician reimbursement cuts take effect, the result will be a $710 million decrease in payments to doctors in Arizona over 2006 through 2010. I have heard from virtually every physician with whom I have spoken about the constraints that inadequate payments are placing on their practice of medicine. While many work for hospitals and health systems, in the rural areas, a large number are solo practitioners or in small practices. For these physicians, poor payment hits their practice especially hard. If Medicare rates for doctors are inadequate, many other health care payors will also lack for adequate reimbursement. Other payors such as Medicaid and private insurers often base their payments on Medicare rates. While this bill only addresses Medicare physician payment, the problem of access to services will be compounded if physicians receive reimbursement from other payors that is below the appropriate levels. The cost of addressing the physician payment update is not cheap. Estimates on the cost of this bill are between $25 billion to $35 billion over five years. I await an official score from the Congressional Budget Office. But I point out, that doing nothing to solve this problem may cost us more: more money, more health and access problems, and more physicians leaving the profession. Although this legislation provides for a two year update, we must develop a long range mechanism to pay physicians appropriately. I am grateful for the support of this legislation by my colleague, Senator Stabenow of Michigan, and encourage my other colleagues to support the Preserving Patient Access to Physicians Act of 2005. I ask unanimous consent that a letter of support be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, earlier this month, a class of 25 students from Dobson High School in Mesa, AZ, competed against more than 1,250 students from across the United States in the national finals of the ``We the People: The Citizen and the Constitution'' program. I am proud to note the Dobson students, led by their teacher Joyce Godfrey, received a fourth place honorable mention in this year's competition. I would like to take a moment to mention the names of those students who competed for Dobson High: Paul Bergelin, Andrew Brown, Lara Cardy, Zach Clark, Brian Hoblit, Katie Hughes, Byunghun Hyun, Valerie Keirn, Patrick Kwan, Alyssa Little, Alex Matyushov, Linh Nguyen, Danielle Rieger, Ralph Robles, Ashley Rogers, Darci Schimschat, Jessica Sims, Drew Snider, Jamie Stall, Tricia Strei, Wing-Yu Tang, Nehal Thakkar, Jana VanMarche, Ashley Wallace, and Jennifer Yan. I would also like to acknowledge their teacher, Joyce Godfrey, the district coordinator, Kathy Williams, and the State coordinator, Susan Nusall. I wish these budding constitutional scholars the best of luck in the future.

Mr. KYL

Mr. KYL. I thank the Senator for his assurance and his consideration.

Mr. KYL. I appreciate the Senator's openness to exploring that question. PM-10 is the greatest air quality problem facing Arizona. There are currently 8 PM-10 non-attainment areas in Arizona and the Phoenix metropolitan area is a serious non-attainment area for PM-10. Our CMAQ apportionment should reflect and help us address our PM-10 air quality problem. Do I have the Senator's assurance that he and his colleagues are open to considering including PM-10 as part of the CMAQ apportionment formula?

Mr. KYL. The legislation before us amends the apportionment formula for the Congestion Mitigation and Air Quality, CMAQ, program to include non-attainment and maintenance areas for fine particulate matter, so- called PM 2.5, and to make adjustments for the new 8-hour ozone standard. It does not amend the formula, however, to include non- attainment and maintenance areas for PM-10 particulate matter. Would the senior Senator from Oklahoma be willing to explore the question of whether the CMAQ apportionment formula should include factors for this Federal air quality standard as well?

Mr. KYL

Mr. KYL. I thank the distinguished Senate Majority Leader. I am pleased to see that the Frist Amendment, adopted by the Senate during consideration of the supplemental appropriations bill, is included in this conference report. The Frist Amendment creates a new E-3 visa sub- classification for Australian nationals. I would be grateful if Senator Frist would clarify a couple of technical points relating to his amendment. It is my understanding that the E-3 visa would not be limited to employment that is directly related to international trade and investment, as are the E-1 and E-2 visas. Could the Senator confirm that this is his intention?

Mr. KYL. Mr. President, will the Senate Majority Leader yield for a question?

Mr. KYL. I thank the Senate Majority Leader for these few points of clarification.

Mr. KYL

Mr. KYL. Further reserving the right to object, because I think there is only about 10 minutes left on this side and a half hour left on the other side, that would mean our time could be wiped out without another word even being spoken. I would not agree to that at this time.

Mr. KYL. Mr. President, reserving the right to object, we don't have very much time on our side, and that would mean that we could get out of time without the other side even coming down here until the very end. May I ask the Chair--I would like to pose a parliamentary question--under the agreement that was entered into, the time is not taken equally off of both sides in a quorum call, is it?

Mr. KYL. I was told a colleague was watching this debate from his office and is under the impression a point was made, under our legislation, a supervisor could apply for citizenship or be granted citizenship or legal permanent residency under the Chambliss-Kyl legislation. I wonder if the Senator would clarify that is not the case.

Mr. KYL. Might I ask the Senator from Georgia to yield for a quick question?

Mr. KYL. Mr. President, let me reclaim my time. The key difference is how you gain the status of legal permanent resident. Under the Craig-Kennedy bill, you get that after working here doing the very same thing that you are doing illegally today. You are not doing anything different. You are just doing it now under a new status as opposed to the old status. Once you do that, you get legal permanent residency. That is the difference. Under the Chambliss-Kyl legislation, you never get legal permanent residency. Second, under the Craig-Kennedy legislation, I think the Senator from Idaho misspoke when he said we don't grant citizenship. I think it is fair to say we don't grant citizenship, but it is that status of legal permanent residency which entitles you to apply for citizenship under the United States Code--8, United States Code, section 1427(a). The point is, the granting of the legal permanent status under the Craig-Kennedy legislation automatically entitles you to apply for citizenship. That is the amnesty. You can't do that under the Chambliss-Kyl legislation. There is no path to citizenship for people who violated the law except to go back to the country of origin and do it just like everybody else--to get in line like everybody else. The final point I want to make is this: I think it is a very dangerous proposition to argue that we can't control our borders. We can. I have talked to the Tucson sector chief of the Border Patrol who says if we have enough resources, we can get control of our borders. It has largely been accomplished in California and Texas. It is not accomplished in Arizona because illegal immigrants came to where we don't have the control. We spent the money in California, we spent the money in Texas, and sure enough they are coming through Arizona. Over half of the illegal immigrants are coming through one sector in the State of Arizona. The statistic which the Senator from Idaho pointed out is exactly correct in that regard. They are mushrooming. He is also correct in saying we need two things. I hope he will agree with me we need both. We need both an effort to enforce the law--after all, if the country cannot protect its own borders, it cannot protect its sovereignty. If we do that, we need to devote the resources to do that. We also need enforceable legislation for people who work in this country. We can do that by having a simplified H-2A program and some language similar to what we are talking about here, matching willing workers and employers within the legal construct, and with combined efforts to control the border and enforce those laws we can end up with a legal regime. But I think it is a very dangerous proposition for us to say we can't, under any circumstances, control our borders. We can, and we must.

Mr. KYL. Mr. President, let me try to summarize the status of this debate over the last couple of hours as pertains to both of these propositions. The first to be voted on is the Chambliss-Kyl proposal, and then the second will be the Craig-Kennedy proposal. Both need 60 votes to proceed. The first point I make to my colleagues is that we voted in this body on a sense-of-the-Senate resolution saying we should have this immigration debate later when we can do it right and can take all the time we need, where everybody can participate in it and know how to approach the problem not just from the standpoint of agriculture, in fact, but for a total attempt to solve our immigration reform issues in this country. We decided that it would not be a good idea to try to have that debate on the supplemental appropriations bill because it would hold up the bill. Guess what has happened. We are in the second week of debate on this bill to fund our troops in Afghanistan and Iraq, and there is still no end in sight. If either one of these proposals gets 60 votes, we are off to the races with lots more amendments, debate time, and I do not know when we will get to finish the supplemental appropriations bill, which the distinguished chairman of the committee has been urging us to get about the business doing. In that sense, it would be a shame if either one of these two propositions got the 60 votes. That is my first point. The second point is that as between the two, both attempt to reform our immigration system and match willing employer with willing employee, but one of them does so in a way that is going to, in fact, attract people to this country who have been here illegally in the past and under the provisions of the bill would enable them to come back. People who have already gone home would be able to present themselves at the border and simply claim and try to document that they worked in this country illegally in the past and, therefore, they get to come back in again. I do not know of anything that makes less sense than having an illegal immigrant who worked here illegally go back home and then we invite them to come back into the country to get legal status simply by working in the fields again. That makes no sense. Secondly, it is very clear that one version is amnesty and the other version is not. One simply cannot argue that when you give an advantage to people who broke the law in terms of obtaining legal permanent residency, which Chambliss-Kyl does not do, and, therefore, a path to citizenship, which Chambliss-Kyl does not do, you cannot argue that advantage given to these people who have broken our laws is not a form of amnesty. That is the key substantive difference between these two bills. Both try to match willing employer and willing employee. One does it without amnesty and the other does it with amnesty. What we mean by that is amnesty meaning legal permanent residency and a pathway to citizenship which is achieved by virtue of the fact that somebody worked here illegally in the past. That is not, we believe, a good idea and a way to start off with a new guest worker program that we all agree needs to be enforceable and enforced. We need to control our borders. We need to have a workable law. It needs to be a law that matches willing employer and willing employee and does not do so with amnesty, and until we are ready to do that, I suggest we should defer that debate, get on with our supplemental appropriations bill, and have that debate when we consider it in the context of overall immigration reform. Therefore, how do people vote on the first vote? As I said, the first vote is on the Chambliss-Kyl proposal. We urge a ``yes'' vote on that proposal. The second vote is on the Kennedy-Craig proposal. We urge a ``no'' vote on that. If they both fail, then we can get on with the business of the supplemental appropriations bill to fund our troops in Afghanistan and Iraq. Mr. President, if there is no other speaker, I suggest we yield back all time and proceed with the votes.

Mr. KYL. I move to lay the motion on the table. The motion to lay on the table was agreed to. Committee Meetings

Mr. KYL. The answer is yes. We have a much more effective way because we have biometric identifiers, a fingerprint check, or other kinds of biometric identifiers so the individual identifies himself both as being in legal status for employment and being the person he says he is. That, of course, requires documents to demonstrate legality, in the first instance, so we can absolutely confirm that the only people who are being hired are here legally. You can make the card whatever color you want to, but under today's law, legal permanent residency is called green card status. Everybody knows you get a green card when you have legal permanent residency. Under your legislation, it is, in fact, the case that with as little as 2\1/2\ weeks but no more than 3\1/2\ months a status of legality is granted. After 1 year an application can be made for legal permanent residency. The only question is how much time it takes to complete that application process. That is when you can apply for it, 1 year. It may take several more months to gain the status. Once the application has been made, you are a legal permanent resident in this country.

Mr. KYL. Will the Senator yield 2 minutes to me on his time?

Mr. KYL. The green card is permanent, not temporary.

Mr. KYL. I am happy to yield.