Jon Kyl

Mr. KYL

Mr. KYL. I will answer the question of the Senator from Virginia by simply saying it is based upon EPA recommendations. We know growth States, population changes, account for a big part of the increased needs. The Senator is also correct that there are some other localized factors, including waterways, the existence of waterways and other factors that bear on this. That is why I note that States that have been significantly underfunded include a big growth State such as California and the State of Illinois. I just do not understand why Illinois has been so drastically underfunded. Ohio, maybe that is because both Ohio and Illinois have substantial waterways, as the Senator from Virginia does. New Jersey is another State that has been woefully underfunded. Yet it is not as big a growth State as California or my own State of Arizona. Indiana is another State that is underfunded. It could be that series of rivers in the Ohio, Indiana, and Illinois area. I cannot explain why the EPA recommends exactly what it recommends and, in comparison to the existing formula, why some States are so much out of skew. One general reason is that of population growth. There are others, as the Senator has pointed out. The main reason this formula makes sense is EPA looks at all of this, applies a needs-based test, makes the recommendations, and those are the recommendations that we plug into the formula.

Mr. KYL. That is correct.

Mr. KYL. Mr. President, let me also acknowledge the comments of the Senator from Vermont. They are very welcome. I appreciate the fact that the authorizing jurisdiction lies within the committee that he chairs, and that in the ordinary course of events he is absolutely right; the formula should be modified when the act is reauthorized under his committee. There are reasons why we make exceptions to that. Sometimes in the U.S. Congress, the exceptions prove the rule. There are frequent times when we don't do the work in the authorizing committee but rather do it on appropriations bills. In fact, every one of my colleagues--including, I am sure, the distinguished chairman of the committee--will acknowledge that on more than one occasion we have ground our teeth and said it looks as if the authorizing committees are no longer relevant around here; that the appropriators are taking the jurisdiction from us and are making all of the decisions. It is probably a bit of an exaggeration, but I am sure every one of us has felt that at times. I certainly appreciate the concerns expressed by the chairman of the committee, who has to protect his committee's jurisdiction. I absolutely understand that. As I said, in the normal course of events, I wouldn't disagree with him at all, as a member now of several authorizing committees, having gotten off of the Appropriations Committee. But we are in a situation today where I think almost everybody will acknowledge that the formula is unfair, and yet we haven't been able to get a reauthorization of this act since its inception in 1987. That is not the fault of the distinguished chairman. But the fact is, it is very difficult to ever change formulas once they are in place because of the opposition of the Senators who perceive that they would be losing under the formula. Let me turn to a chart that I think will also make the point. Under the Kyl-Fitzgerald-McCain legislation, some States will lose some of the windfalls that they have been receiving. But every State except three, as I have pointed out, still does very well. If you look in the far corner, there is a State that is pretty much above every other State. The line for New York State is way up here. It is true that under our amendment it would be brought down to here. But every other State else in the formula is down here. While it is true that there are States that will lose--and New York State, I confess to my colleagues from New York, will lose funding under this act. They have been getting a windfall for a number of years. That must be a testament to their great work before the committee. And I suspect a former Senator from New York also had a little something to do with that. My point is, yes, there are a few States that will lose funding because they have been getting too much, and almost all of the other States that are within this minimum-maximum range are way down here. I don't think one can say it is unfair. With respect to the comment that my colleague from Missouri made, that is a complicated formula. I want to make it very clear exactly what we are talking about because it is the epitome of simplicity. Three factors. In accordance with the wastewater infrastructure needs survey, what does EPA recommend? You get 97.5 percent of the funds that are available. There is a minimum and a maximum. The minimum is 1.675, and the maximum is 8.0. It couldn't be simpler. We have available a chart that shows exactly the dollars and percentages--which States receive more, which States receive less, and how the earmarks relate to that. We don't affect the earmarks in any way. The earmarks are untouched. The 2002 earmarks are indicated on this particular chart. I don't think the formula is at all complicated. I don't think it takes a lot of work to figure out how you fared under the amendment. I also note that while the Senator from Missouri was concerned about States that receive the minimum amount, actually we shouldn't be concerned about the States receiving the minimum because, according to the survey, they actually would receive less money than that but we guarantee that all States receive a minimum amount. They actually end up receiving more percentage-wise than they should based upon the recommendations. I think it is a very fair formula. It is very similar to other formulas that we have. We already have a similar kind of formula with respect to drinking water under the same act. The EPA makes a recommendation. We have a formula that allocates funding based upon those recommendations. I think, A, it is fair; B, the minimum States are protected; and, C, you can see that only a few States that have been receiving what I would refer to as windfalls are going to be rather substantially reduced. Everyone else is reduced only a small amount. There are a few States that actually increase a fair amount. That is, frankly, because of the fact that they have been significantly shortchanged in the past. For the benefit of my colleagues, I would like to relate a few of the statistics. The distinguished Presiding Officer represents the State of Delaware, which is currently receiving $6.7 million but would receive $9.1 million under the formula. Let me start at the top. We all know California is a fast-growing State. It is slated to receive $97 million under the current allocation. It would receive $108 million under the Kyl-Fitzgerald- McCain amendment. I think the State of Illinois has been significantly shortchanged probably more than any other State. It received $61 million. According to the allocation, it should receive $108 million. It would gain $48 million. I think for the citizens of Illinois, it is just unconscionable that it has fallen that far behind. The State of Ohio similarly has been receiving less. The State of New Jersey, which is receiving $55 million, would receive almost $75 million--about a $21 million increase. This just illustrates the point. I could go on down the list. Next is Pennsylvania, which is receiving $54 million but would receive $61 million. The State of Florida receives $46 million; it would receive $55 million. The State of Indiana receives $32 million; it would receive $50 million. You can see how there are States that are really significantly below. Just in the spirit of full disclosure, going down to my own State of Arizona, it receives $9 million; it should be receiving $22 million. My point is, there are a lot of States that are way behind what EPA thinks they should be receiving. There are a few States that are way ahead of what they should be receiving. But as I said, only three States will actually receive less as a result of our amendment. Let's see if I actually have those States listed. All but three States will receive, at a minimum, their exact proportionate share of total need. And two of them subjected to the cap in the formula will still receive substantially more than they do under the current system Mr. President, there are other Members who would like to speak to this amendment. I promised them they would have the opportunity. At least two of them are tied up in the Commerce Committee, which I assume is going to be done with its business pretty soon. So I would like to have an opportunity for them to speak. But I also note the distinguished chairman of the subcommittee is in this Chamber. Mr. President, I yield the floor. Several Senators addressed the Chair.

Mr. KYL. Mr. President, I want to say that the way the opposition to my amendment was delivered by the distinguished Senator just proves yet again why he is such an effective Member of this body and such a great representative of his State and the constituents of the whole country. He has in some sense agreed that we need to do something, but makes an argument, which he indicated last night he would have to make, in opposition to the amendment. I appreciate that fact. But I don't think one could ever ask for an opponent to an amendment who has more graciously expressed his views. I want to let the distinguished Senator from Missouri know that I appreciate that.

Mr. KYL. Mr. President, I appreciate the comments of the Senator from New Hampshire a moment ago, but it illustrates exactly why we need this amendment. The Senator, who is the ranking member of the authorizing committee, says we should not be doing this amendment on an appropriations bill, which is the pending business before the Senate; we should allow the amendment to come out of the authorizing committee. He is right, in theory, because almost everyone recognizes the current formula for allocating wastewater treatment grants under the EPA's program is unfair. It is way out of date. It is based on 1970s data and, as he noted, especially for growth States, it is woefully inadequate. The problem is the authorizing committee has had 14 years to change the formula and has not done so. There comes a time when one's patience begins to wear thin. In representing the interests of the States that are growth States, where needs far exceed what they were back in the 1970s or even 1980s, I think we have an obligation to say enough is enough; it is time to change this formula. Almost everyone in this body has at one time or another made note of the fact that one of the unique things about the Senate is any 1 of the 100 Senators can offer amendments to change law or to fix things. In the House of Representatives where I served, it is more difficult to do that because of the numbers of people and the rules. The nice thing about the Senate is we have this opportunity. That is why it is frequently the case that amendments are offered on legislation that comes before us, even though it would be nice to deal with that subject in another way. We do it all the time. Mostly we do it when the need is so great, the case is so good, and the degree of fairness involved is such it would be unfair and unwise for us to do anything else. I say to my friend from New Hampshire, who says let us take care of it in the authorizing committee, he has had many years to do that. This act has not been reauthorized since it was passed in 1987. It needs to be reauthorized, and it needs to be fixed. I commend Senator Jeffords, the new chairman of the committee, for saying he intends to take this up so he can get a reauthorization. I hope that is done, and I hope it is done this fall. I also hope it includes a formula reallocation if we are not able to do it in this bill, but we have heard that story year after year after year and nothing happens. There is a reason nothing happens--because the States that have it good under the formula do not want to change. That is human nature. There is nothing wrong with that. I do not blame them. As a simple matter of fairness, if a formula has grown so out of whack over the years that it treats more than half of the people in this country very unfairly, then something needs to be done. We have it within our power to do it. This amendment is germane and will be ruled such by the Parliamentarian if there is a question about it and, therefore, it will be offered and it will be voted on. Since there are far more Senators whose States benefit under this amendment than those that would lose funds because they are getting more than their fair share today, I hope it will be adopted. Those Senators who vote against this amendment, notwithstanding the fact their States benefit, will certainly have some explaining to do to the folks back home. What does the amendment do? We have some funds in the Federal Government that help localities construct facilities to ensure their drinking water is safe and that they have good wastewater treatment facilities. These are conducted under the Environmental Protection Agency. The EPA does a needs survey every 4 years. It decides what communities need. It does this on a State-by-State basis. We base the allocations of the drinking water fund strictly on the basis of that needs survey because we recognize EPA is not being political in this endeavor. EPA understands what the needs are. It does this survey and says: Here are the communities that need the money the most. The formula for the drinking water is based upon that EPA quadrennial needs survey. EPA also does a quadrennial needs survey for wastewater treatment, but we do not base our allocations for wastewater facilities on the basis of that needs survey. No, we base it on a 1970s era construction grant program which has no relevance to wastewater treatment, is way out of date, even if it ever did, is based on 1970 census data, I believe, and, therefore, has been overcome by events and time with respect to the real needs throughout the United States. Based on the chart, we can see visually what the situation is. There are several States that have a need, and that need, represented by the red bar, is based on the percentage of need the States are currently receiving. In other words, EPA says: This is how much you need, and then here is how much Congress gives. To use my State of Arizona as an example, we can see Arizona receives a very small amount, less than 1 percent. This is why I am offering the amendment. My State is being treated very unfairly. Under the formula which does not provide a 100-percent allocation, Arizona, as all of the other States, would get up to this minimal level. We can see on the chart the blue line for all the States is the same. Those States below the line would be brought up to that level. The State of Maryland is the State that has the highest bar on this particular chart. The percentage of current need fulfilled in the State of Maryland is far in excess of my State of Arizona, even though my State of Arizona has more population and is faster growing. Is that fair? This is according to the EPA. This is not according to population, Jon Kyl, or the Governor of Arizona. This is the Environmental Protection Agency's survey of needs. Here is Arizona, less than 1 percent, and here is Maryland, much higher. What we are saying is, let's even it out and make sure everybody gets at least a percentage of what the EPA says they deserve to have. That is what we are trying to do, to make it fair for everybody. Incidentally, the formula change is very simple. The amendment is a two-page amendment. It reads as follows: ``shall be a minimum of 0.675 percent and a maximum of 8.00 percent'' of the needs survey of the EPA. So there is a top and a bottom, and within that, everybody receives funds according to the percentage that EPA has recommended. It reads further: (2) any State the proportional share of which is greater than that minimum but less than that maximum shall receive 97.50 percent of the proportionate share of the need of the State. That is the percent everybody within the maximum and minimum will receive. (3) the proportional share of American Samoa, Guam, the Northern Mariana Islands, and the United States Virgin Islands shall be, in the aggregate, 0.25 percent. I note that even though the EPA lists Arizona as No. 16 on the list of the States in terms of need--we rank 16th from the top--we are 53rd in how much money is received after a couple of the territories and the District of Columbia. That is why I am standing before you today. There are many other States--I think 28--in addition to Arizona that are in the same box. Some are in a little worse shape than Arizona-- actually, I do not think any are in worse shape than my State of Arizona, but there are several that receive more because EPA has said they need more than the State of Arizona. States such as New Jersey and Illinois, for example, receive substantially more money under this amendment. This is not about anything complicated. It does not take a lot of work to figure out how it works. It is simply a readjustment based on EPA's own figures. Included in the appropriations bill on VA-HUD and independent agencies is an increase in funding of $500 million over that requested by the President in the EPA's clean water State revolving fund. It is my understanding that the increase brings current year funding up to a historic level of $1.35 billion. I applaud both Senator Mikulski and Senator Bond, who are the chairman and ranking member respectively of the committee, for the work they put in on it. Having been a member of the Appropriations Committee, I know how difficult it is and how hard they work on this. I appreciate the work they have put in on it. I wish to make it clear that I support the funding for this program established under the Clean Water Act of 1987. Our States do depend on this revolving fund to provide much needed financial assistance. It comes in the form of low interest rate loans to sewer utility ratepayers who otherwise bear the brunt of the costs associated with compliance of EPA clean water regulations. This is one of the ways in which we impose a mandate on communities but then help them to fulfill that mandate financially. It is particularly beneficial for customers of the small rural water companies that serve so much of the population in the Western and Midwestern States. Unfortunately, the EPA has been administering this program since its inception with a very seriously flawed allocation formula that I described earlier. It was based on a formula that was derived for Federal construction loans using data that was gathered in the early 1970s. During these 30 years, I think we are all aware of the fact that the demographic distribution in the country has changed dramatically, as have the other factors that would cause the EPA to rank localities based upon their need for this kind of funding. In my State of Arizona, our population has nearly tripled from 1.8 million to 5.1 million since 1970. Just think about the changes that has required in terms of infrastructure in the State. I might add, that does not include a very large population that is probably not counted. Much of that shift in population has come from other regions of the country, so you not only have burgeoning needs in the growth States-- and I know the State of the Presiding Officer is in the same position-- but you also have declining need in some of the other States that historically have a higher population and receive more money to take care of that population. It should be obvious that over time these formulas should be adjusted, but as I say, it has never been adjusted, and I have no reason to believe that circumstances today create any greater opportunity for us to do that than last year or the year before or the year before that. The formula that currently exists reflects neither this current population distribution nor the EPA's documented need of individual States as established in its quadrennial wastewater infrastructure needs survey. The EPA will update its wastewater needs survey in the year 2002, but based on the most recently completed survey from 1998, there is a vast discrepancy in the percentage of need fulfilled from State to State. I have no doubt that after this next survey, this chart is going to be even more skewed. States that are primarily the growth States are going to be in an even more difficult situation--States such as California, for example, and my own State of Arizona. Let me illustrate this disparity using, however, the 1998 EPA wastewater infrastructure need survey and the actual clean water revolving fund allocations to the States in fiscal year 2000. The State of Arizona received funding in fiscal year 2000 to address only .41 percent; that is four-tenths of 1 percent of the validated infrastructure needs. By contrast, four States with populations very similar to Arizona--Wisconsin, Maryland, Minnesota, and Louisiana--each received funding that met from 4 times to 7 times the percentage received by my State: 1.43 percent in the case of Louisiana and 2.89 percent in the case of Minnesota. So there is a 7-to-1 ratio of States with almost equal population. That is not fair. I understand why the Representatives of those States want to defend what they have, but they cannot defend its fairness, so they are relegated to an argument that procedurally we should not do it on this bill but on another bill. But we never get around to doing it on another bill. It is a catch-22 for us. My constituents back home ask, Why is Congress so partisan and why can't it ever just act in a fair way to get things done. I have a hard time explaining it in this case because it is a totally bipartisan issue. There are winner States and States that have to give back some of the money they are in effect receiving today, in the future. And it doesn't respect party lines. People from both parties are winners and losers under this current formula and would be under the new formula. I don't think anybody can defend a formula that, based upon EPA's own recommendations, gives one State seven times more than another State of the very same population. It is very hard to defend. If my colleagues would refer to the floor chart again, we see by graph what I illustrated in terms of actual numbers. It only includes those States not covered by the minimum or maximum shares under the proposed formula, so it avoids a skewed representation. I make another point about this amendment because there is another fund out of which the committee is able to allocate money, and it is based on so-called earmarks. My change here, this amendment, this formula change, does not in any way affect those earmarks. I make that crystal clear to everybody. Their earmarks are not affected today or tomorrow. They are totally outside the scope of this amendment. Let me illustrate how the earmarks also work. There is only one State that has double-digit millions of dollars in earmarks. That is the State of Missouri, which receives $10.250 million in earmark funds, in addition to the formula funds. My State, by the way, gets $1 million. So there is a 10-to-1 ratio. For those who say we even it out in the earmarks, no, it is not evened out in the earmarks. There are only three other States that received over $5 million in earmarks: Maryland, Mississippi, and Arkansas. We have a situation where not only does the formula discriminate but the earmarks also discriminate. We have and will hear the argument we should not be legislating on an appropriations bill. After having complimented the chairman and ranking member, I note they represent two of these four States. They are able, in the committee, to ensure that their State is treated as they would consider to be very fairly. However, they argue that those not on the committee shouldn't be able to do anything on the floor of the Senate; that would be legislating on an appropriations bill; we cannot do that. Again, it is a catch-22. You have to be on the Appropriations Committee; otherwise, if you are not on the Appropriations Committee, don't offer an amendment on the floor or they will come to the floor and say they will stick together and urge their colleagues to vote against this amendment because it would be legislating on an appropriations bill. Again, a catch-22 situation. Last year, I was on the Appropriations Committee, I voluntarily left, so I guess I can't complain, but I didn't think I would be treated unfairly as a result of leaving the committee. This boils down to a matter of unfairness. Every one of my colleagues, I know, has only the best interests of both their constituents and the country at large in their mind. But nobody wants to give up an advantage. If you are inadvertently given $100 in change from a clerk who should have given you $10, do you keep the $100? Most would say no. It is similar here. The allocation of funds boils down to fairness and honesty. I defy anybody in this body to tell me there is a more equitable distribution, a more equitable fashion to distribute these funds than on the basis of a proportional share of the total validated need as determined by EPA. I don't ask anything more than a fair share of funding for the people of Arizona, my State, and for all other Americans. As I said, mine is not the only State that is adversely affected. In fact, a majority of the States are adversely affected by the unfair and outdated formula that is in the bill today. Using the simple needs- based formula that I proposed, 27 States and the District of Columbia will receive more than they are currently receiving--not their total percentage share but at least more than they are receiving now. Using this formula, all but three States receive, at a minimum, their exact proportion of share of total need. This is a very fair way to make an adjustment. Ordinarily, you have to take away from half and give to the other half. This formula works in such a way that very few States could argue they are being shortchanged. In the case of those States, they have simply been receiving far too much in comparison to what EPA has said their needs are. Two of the three States I noted subjected to the cap in the formula will still receive substantially more than they do under the current system. It is time to do something to rectify what I think is a gross disparity that impacts the health and welfare of so many of our citizens. I ask my colleagues to recognize the inequity and join me in supporting a reasonable reformulation that takes into account both the aging systems in the East and the growing infrastructure needs in the West that have been driven by this population shift over the last 30 years. I close by talking just a little bit about the way the committee has legislated on an appropriations bill because we will hear we cannot do that, and also to talk directly to some of my colleagues on the Environment and Public Works Committee. I note the distinguished chairman of the committee is here. I complimented him--I don't know if he was here--on his, I think, publicly expressed but certainly privately expressed desire to take up in his committee later this fall the reauthorization of the underlying legislation which is very sorely needed. I applaud the Senator for that. Obviously, there is no commitment to take up the formula or to change the formula, and it will be too late for the fiscal year 2000 funds which, again, will fall far short of what is needed and will be unfairly distributed. Before anyone votes no on this amendment because Members think it is an inappropriate vehicle, think for a moment about what happens to the fiscal year 2002 funds that we are appropriating if the necessary authorization bill is not passed in time to affect the allocations. I suspect my colleague from Vermont will confirm that would be a tall order to get a formula changed, done in time, and signed into law to affect the appropriations for fiscal year 2002. Back to the question of legislation on an appropriations bill. Ordinarily, we shouldn't do something dramatically different on an appropriations bill than the appropriators have put in the bill. But it is not true that the amendment is outside of the norm of what we do. Let me focus attention on just a section of the State and tribal assistance grants, which is where we find the funding for the State clean water revolving fund. In other words, you do not have to go very far afield. You can stay right in the same section and find out that we have legislated on an appropriations bill. On page 76, line 3, I see we are providing funding: . . . for Drinking Water State Revolving Funds under section 1452 of the Safe Drinking Water Act, as amended, except that notwithstanding section 1452(n) of the Safe Water Drinking Act, as amended, none of the funds made available under this heading in this Act, or in previous appropriations Acts, shall be reserved by the Administrator for health effects studies on drinking water contaminants. On page 76, line 21, grants specified in the Senate report accompanying this Act are provided: . . . except that, notwithstanding any other provision of law, of the funds herein and hereafter appropriate under this heading for such special needs infrastructure grants, the Administrator may use up to 3 percent of the amount of each project appropriated to administer the management and oversight of construction of such projects through contracts, allocation to the Corps of Engineers, or grants to the States. And on page 78 line 4: Provided further, That no funds provided by this legislation to address the water, wastewater and other critical infrastructure needs of the colonias in the United States along the United States-Mexico border shall be made available to a county or municipal government unless that government has established an enforceable local ordinance, or other zoning rule, which prevents in that jurisdiction the development or construction of any additional existing colonia areas, or the development within an existing colonia [or] the construction of any new home, business, or other structure which lacks water, wastewater, or other necessary infrastructure. So that is pretty heavy duty legislating, I would say. It comes straight out of the appropriations bill before us, in fact the exact same section I am attempting to amend. Basically what we are saying is the Appropriations Committee can amend and legislate when the bill is before the committee, but the rest of the Senators are denied that opportunity when the bill comes to the floor. As I said, as a general rule it is probably a good thing to let most of the work be done by the committee. But in a case such as this where there is so much disparity, so much unfairness, and where we have not been able to get the authorizers to do this reauthorizing notwithstanding many years of effort, I think we have to take the opportunity that lies before us. Mr. Fitzgerald from Illinois, Mr. Brownback from Kansas, and Mr. McCain are all cosponsors of this amendment and they and some other Members would wish to speak on this amendment. But at this point, since I see the distinguished ranking member from Missouri here and the chairman of the authorizing committee, I will yield the floor to them for their comments.

Mr. KYL. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. KYL. Mr. President, if there is not an objection by the assistant majority leader or ranking members of the committee, I offer this amendment that was just spoken about. I send an amendment to the desk, and I ask for its immediate consideration.

Mr. KYL. Mr. President, I say to the Senator from Virginia, my staff has tried to find out the basis for the current formula, and they have had a very difficult time getting anybody to tell them what it is. We have gone back in the debates, in the records, and so on. As best we can tell, it is a formula that is based upon a construction grant program using 1970s data, including population data. That is as clear as I can be about it. I urge anybody--of course, I find it interesting that those who are opposing the amendment do so on procedural grounds, not defending the existing formula. I haven't found anybody to defend, let alone explain, what the basis of the existing formula is.

Mr. KYL. Mr. President, I have a modification to my amendment at the desk and I ask that the amendment be modified accordingly. A copy has been provided to Senator Mikulski.

Mr. KYL. Yes. I thank the Chair. First, I have two unanimous consent requests. I ask unanimous consent that the Senator from Illinois, Mr. Durbin, and the Senator from Kansas, Mr. Brownback, be added as cosponsors to the amendment.

Mr. KYL. The Senator from Virginia is correct. That is based on two primary factors: First, as both the Senator from Maryland and the Senator from Missouri have noted, they have fought very hard for increased funding. One never knows. Each year, from one year to the next, we never know what amount of money is going to be available; that is very true. It would be folly for someone to count on a particular amount of money. Second, as I said, we do not touch the earmarks. The earmarks come from a separate pot, basically, if we want to simplify it. That comes from a separate pot of money, and the committee can certainly do a lot of adjusting within their earmark authority from year to year. We cannot predict, obviously, from year to year what that would be. So, yes, the Senator is correct. There are at least two bases, and maybe others, for not knowing exactly how much money one is going to get from one year to the next, even under the existing formula.

Mr. KYL. I appreciate that question from the Senator because there has been, I think, a misunderstanding here. My understanding is that EPA has at least two different ``needs surveys,'' as they call them. They survey needs of communities for drinking water, and we use that survey with a formula for the allocation of drinking water moneys in a different place in this bill. They also do a survey for wastewater needs. It is my proposal that we use that survey as the basis for the allocation of wastewater funds. Those are different surveys. We should not confuse the two. We are not suggesting that we use the drinking water survey for wastewater allocations. Leave the drinking water survey for the drinking water allocations and use the wastewater survey for the wastewater allocations. It is further my understanding that each of these is redone every 4 years on a rotating basis. In 2002, there will be the new 4-year wastewater treatment survey. Two years ago, we had the most recent drinking water survey. So every 2 years, we have a new survey. One is for drinking water; one is for wastewater. My concern is we will wait until the 2002 wastewater survey, and then it will be at least fiscal year 2003, or later, when it can be implemented, even if we are all in agreement to use that survey. Clearly, we will be yet another year or even 2 years down the road without having made the formula safe. To summarize, the Senator from Virginia is correct. There are two different needs surveys, one for drinking water and one for wastewater. We are not using the drinking water survey; we are using the wastewater survey. The formulas also differ slightly. I believe there is a 1-percent minimum on drinking water for that fund. In ours, it is a .675-percent minimum, 8-percent maximum, and everybody else within that range receives 97.5 of what is available. It is a very simple formula and not dissimilar to the drinking water formula, but it is not the same formula.

Mr. KYL

Mr. KYL. I will not object. I appreciate the response of the assistant majority leader, although it suggests to me that these nominees are being held hostage to the legislative process. I hope we can get these confirmations as quickly as possible.

Mr. KYL. Mr. President, then I will ask for a second question with the indulgence of the Senator. With all due respect, the answer is a nonanswer. It doesn't tell us when we might consider these nominees. The distinguished assistant majority leader said phrases such as ``as quickly as possible'' and ``as rapidly as we can accommodate.'' Is it not true that there are 15--if I am incorrect, please give the correct number--15 people pending on the Executive Calendar who don't await anything except our action? We can do it now or at the end of the day. Nothing stands in the way--no committee chairmen, no further vote, nothing. As far as I know, there is no controversy with respect to any of these. Is there any reason that this number, whether it be 14 or 15, could not be agreed to today?

Mr. KYL. Mr. President, I want to ask the assistant majority leader one, maybe two questions. This nomination is a great nomination, as the Senator from Nevada pointed out. It would not be my intention to object. What it demonstrates is, my understanding is that the President, or someone on his behalf, called and said can't we shake this nominee loose, for the reason the Senator from Idaho indicated. It illustrates the fact that we have held up the nominations so long that really important things are beginning to happen that require that we put these people in place. Therefore, I think it is commendable to bring this nominee to the floor now. I ask the distinguished assistant majority leader--there are also some important efforts at the United Nations which require the attendance of John Negroponte, the nominee for Ambassador of the U.N. The President deserves to have his Cabinet filled out finally. John Walters, the nominee for drug czar, is somebody of great importance to the White House. I spoke yesterday with the Attorney General who asked if we could please get Tom Sansonetti, an assistant from the Department of Justice, confirmed as quickly as possible. I ask the assistant majority leader, since there are 15 nominees who I think are on the Executive Calendar now, we can do all of those right now if he would agree not only that we could ask unanimous consent on this one nominee, but the others who are at least pending on the Executive Calendar before us.

Mr. KYL. That is not the object. Reserving the right to object.

Mr. KYL. I don't mean to take any time.

Mr. KYL. Mr. President, reserving the right to object.

Mr. KYL

Mr. KYL. The Senator from Idaho was instrumental at the end of the week in getting an agreement from the Democratic leadership to take up the nomination of Jack Crouch, sometimes known as J.D. Crouch, a distinguished expert in, among other things, missile defense. I had breakfast a couple of months ago, along with other Senators, with Secretary of Defense Rumsfeld. He pleaded with us at that time: Please send me my troops. Please confirm the people we have nominated for the Cabinet and subcabinet positions for the Department of Defense. Now the President is busy in negotiations with the Russians, with Putin, and with others regarding missile defense, and the nomination of a distinguished member of his subcabinet, Jack Crouch, has not been taken up. He was nominated on May 7. He was nominated even before John Negroponte. Still no confirmation. I ask the Senator from Idaho, since the Senator was instrumental in getting the agreement of the Democratic leadership to have a vote on J.D. Crouch sometime before the end of the August recess, does the Senator think it is important in this case to get this vote scheduled as soon as we possibly can so we can send Secretary Rumsfeld the team he needs to help provide for the national security of the United States?

Mr. KYL. Mr. President, I ask the Senator from Idaho to yield again, primarily to make a point.

Mr. KYL. Mr. President, if I may pursue this, it is an excellent example of one of the nominees who has been pending for a long time. John Negroponte was nominated on May 14. As the distinguished Senator from Idaho pointed out, it was very shortly thereafter that this problem in the United Nations occurred. Many people had said if John Negroponte had been there, this would not have happened. We do not know, as the Senator said. I do know about a month ago Secretary of State Colin Powell was on national television, on one of these Sunday morning talk shows. He was asked about the nomination of John Negroponte, and Secretary Powell made an eloquent plea to the Senate to please confirm John Negroponte. He said the United States needs him at the United Nations, that we needed to get him confirmed. That was, I believe, over a month ago. His nomination has been pending since May 14. It is now July 23. The President is going to be speaking to the United Nations this fall, I believe in September. He is going to be addressing the United Nations. For the United States not to have our Ambassador in place would be a breach of significant diplomatic protocol, as well as an important loss to U.S. interests. I note that because the Senator from Idaho brought up the name of John Negroponte, another perfect example of someone we have had plenty of time to confirm, and we have not yet taken up his nomination for confirmation, and we need to do so. I thank the Senator for yielding.

Mr. KYL. I think the Senator just hit the nail on the head. This isn't an abstract proposition, the fact that the President needs to have his team in place; I think everybody recognizes that. But it has real ``on the ground'' meaning for everyday decisions that are made affecting all Americans. Maybe we can talk for a little bit about some of the specific positions that are vacant, the people who have been nominated for those positions, why they are important for the American people, and what can happen if these positions are not filled. Would the Senator like to initiate discussion on that? I can certainly do the same.

Mr. KYL. Mr. President, will the Senator yield for a question?

Mr. KYL. As much time as the Senator takes.

Mr. KYL. Mr. President, when we first came back and began this Congress in January, there was a lot of talk about bipartisanship at that time due primarily to the fact that the Senate was equally divided between Republicans and Democrats, and we knew we better act in a bipartisan way or not a lot would get done. Since that time, of course, the Democratic Party has taken the majority, by virtue of the transfer from a Republican to an independent status, and we now have 50 Democrats, 49 Republicans, and one independent in the Senate; therefore, the Senate is under the control of the Democratic Party as the majority party. But we have a Republican administration and no less of a requirement to work together in a bipartisan fashion. The distinguished President pro tempore chairs a committee which, by its very nature, requires bipartisanship. I think I was presiding in the chair the day the distinguished President pro tempore and his counterpart, the ranking member, the Senator from Alaska, talked about the fact that without the kind of bipartisan cooperation in that committee that has characterized its work, it would be hard for the Senate to get its work done. That is also true of some other things, some housekeeping, if you will, that the Senate has to do as part of its constitutional responsibilities and, frankly, are among the most important of its responsibilities. That includes the advice and consent that we provide with respect to nominees from the executive branch. When a new President comes into power, there is also a certain transition that takes place because the new President nominates his own people for his executive branch department, his Cabinet officers and subcabinet officers, and also, of course, judicial nominations. In order for those departments to be fully staffed and up and operating, it is necessary for the Senate, as quickly as possible, to hold hearings on those nominees, to act on them one way or the other, and then those that it approves--the vast majority--can join the President and begin work in the executive branch of Government. Ordinarily, that is a somewhat lengthy process but not a particularly difficult process. Most of the nominations are relatively routine. After they finish their FBI check, there is a hearing. There is almost never any controversy and therefore it is not difficult for the Senate to confirm those nominees. In fact, for the benefit of a lot of folks who would not be aware of the process, we do not take time in this Chamber to debate each and every nominee and hold a rollcall vote on each and every nominee. Instead, most of them are not controversial, and the leader will ask that a group of them be considered in a group, at the end of the day; and if no Senator objects to the nominations, they are all approved, and they are approved unanimously. That is the way it is done for most of the nominees. There are well over 600--I don't know the exact number--that we have to confirm. The problem is, this year, because of the election difficulties in Florida, the administration did not have as much time during the transition to get these people selected. As a result, we started out about a month behind in terms of the nominations from the Bush administration. Fortunately, the administration has worked very quickly and has actually caught up and even surpassed some previous administrations in the number of nominations that have been sent to the Senate. But the Senate has not acted very quickly either. Part of that was due to the fact we had this change from an equally divided Senate to a Senate controlled by the Democratic Party, and there was a period when the reorganization resolution had not yet been adopted. People might say: Why is all that important? Let's just get these nominees approved. Sometimes there are certain steps the Senate has to take before it can do things. The fact is, now we have had quite a period of time within which to act on these nominees, and we are beginning to act on some of them, but, frankly, they are not occurring as fast as I think they should occur and many of us believe should occur. There are still far too many nominees we have not confirmed, and we are afraid will not be confirmed by the beginning of the August recess, in less than 2 weeks from now. That means it would not be until after Labor Day that the President would have his full complement of Cabinet officers in place, and subcabinet officers. That is far too long. As of this month, over one-eighth of the Bush administration term is now gone, and many of the people he would have working for him are not even confirmed. The Senate has, so far, confirmed 210 Bush administration nominees, and that includes the 77 that we have confirmed just in the last 11 days. But even with that progress, it is just 58 percent of the nominees that President Bush has sent to us so far. This chart represents the 58 percent of nominees confirmed by the Senate from George W. Bush. At this same time during the Bill Clinton administration, the Senate had confirmed 74 percent; and in the Reagan administration, 72 percent. These are administrations that took over from a previous party. Ronald Reagan took over from Jimmy Carter. Bill Clinton took over from George Bush. And George Bush, of course, took over from Bill Clinton--each changing parties in the process. So as we can see, the Bush nominees have not been approved, have not been confirmed at the same rate as the Senate confirmed previous Presidents' nominees. That is putting a real burden on this White House. Incidentally, even though it wasn't a change from Reagan to the first George Bush in terms of party, the percentage was exactly the same as with regard to George W. Bush. Clearly, the Senate has to do a better job getting these nominations heard, getting them to the Senate floor, and getting them approved. The same thing is true with respect to judicial nominations. We are going to need to hold hearings and confirm judges at a much faster pace, or we are going to be way behind in terms of judgeships. I will talk about that in just a little bit. The bottom line, the first point I am trying to make is that we would literally have had to confirm about 83 nominations last week to match the nominations that we confirmed for the Clinton administration. We confirmed only 23. We were literally 50 nominations behind as of last week. The Bush administration has nominated 365 people to date. With the 210 confirmed, that leaves 155. We have less than 2 weeks before the August recess. We would have to do about 75 per week to get these all confirmed. The fact is, 27 of those are judicial nominees. There is no way we can hold all of the hearings on them. So let's subtract the 27 judicial nominees; that still leaves 128 nonjudicial nominees. Those are the people the President needs to help run his Cabinet and his Cabinet agencies. That would mean we would have to do about 65 per week, this week and next week, in order to be done. We are hopeful the Democratic leadership will cooperate in a bipartisan way to get these nominees confirmed. Because of what I explained earlier, it is not difficult to accomplish this. We can walk and chew gum at the same time. We can do both appropriations bills and nominations because nominations usually don't require a lot of time for debate on the Senate floor, and they don't require rollcall votes in most cases. In most cases, they are bundled together because they are not controversial. The leader asks unanimous consent at the end of the day that they be approved. That consent is given. They are approved, and it doesn't take very much time at all. The good news is, the Senate can do both things at the same time. It can both pursue legislative business, which in the case of the next 2 weeks is going to consist mostly of appropriations bills, and at the same time we can do these nominations. That is the good news. Let me try to give you a little bit of an idea of some of the agencies that have nominations pending and why these are important. As I said, there are 27 judicial nominations pending, 26 or 27. Everybody understands the importance of the judiciary. Tomorrow, the Judiciary Committee is going to hold a hearing on three nominees, but only one of them is a judge. The other two are nominees for the Department of Justice. We have only confirmed three judicial nominees this entire year for President Bush. There is now a vacancy rate that is far higher than it was at the end of the last administration. In fact, there are today 108 vacancies in Federal courts. This is about 45 or so more than there were at the end of the Clinton administration. Just to quote a couple of my colleagues to illustrate the significance of these judicial nominees, Senator Leahy is the chairman of the Senate Judiciary Committee and has always been a very strong advocate for filling these judicial positions. When Bill Clinton was President, this is something Senator Leahy said: Any week in which the Senate does not confirm three judges is a week in which the Senate is failing to address the vacancy crisis. Any fortnight in which we have gone without a judicial confirmation hearing marks 2 weeks in which the Senate is falling further behind. Senator Leahy is right about that. He said this in January of 1998. When he made that statement, there were fewer than 85 vacancies. Today there are 108 vacancies. As lawyers would say, a fortiori, it is important for us to begin confirming these judges. Moreover, as he pointed out, you can't confirm them until you have had hearings, and we are not having hearings on these judges. We are supposed to have a hearing this week, but only one judge is on the panel. I remember the last three or four hearings of last year, we had five or six judges per panel. To have only 1 judge on the panel when there are 26 others on which we could have a hearing--their FBI clearances have been done; they are ready to have their hearing--is simply to slow down the process. There is no reason why we can't add more judges to the hearing calendar. We should be doing that. I respectfully request that the chairman of the Judiciary Committee get on with the scheduling of these hearings. Our majority leader, the distinguished Senator from South Dakota, last year said: Today there are 76 vacancies on the Federal bench. Of those 76 vacancies, 29 have been empty so long they are officially classified as judicial emergencies. The failure to fill these vacancies is straining our Federal court system and delaying justice for people all across this country. This cannot continue. That was in March of 2000. When he made that statement, there were 76 vacancies, 29 of which were categorized as ``judicial emergencies.'' Today there are 108 vacancies, 40 of which are classified as ``judicial emergencies.'' It is clear the Judiciary Committee needs to begin holding more hearings, that we need to get these judges to the Senate floor for confirmation, and that the Senate needs to act more quickly on these very important judicial nominations, 40 of which are classified right now as ``emergencies.'' In other words, according to the administrative office of the U.S. courts, these are the positions which need to be filled immediately or the administration of justice will suffer. It represents 12.6 percent of the judicial positions in our country today. That is the vacancy rate, and of those, just under 40 percent, are classified as ``judicial emergencies.'' Clearly, we have to get working on these nominations. I note that my colleague, Senator Craig, has arrived. I was going to begin discussing some of the specific nominees who are not judicial nominees that have been pending for a long time that we want to get cleared. Before I do that, perhaps my colleague is ready to make a presentation. I am happy to wait and go into some of the specific names after a little bit. I yield to the Senator from Idaho.