Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to speak principally on behalf of four important pieces of legislation. Two have important implications for national security, a third would help keep war criminals and those who commit atrocities abroad out of our country and the fourth would add a degree of fairness for law enforcement victims of September 11. All have been cleared on the Democratic side of the aisle. Three are being blocked by holds placed by anonymous Republican Senators. One has passed the Senate and is being held up by the Republican leadership in the House. I appeal, again, today to our Republican colleagues to stop holding these important bills hostage, remove your secret hold, or at least come forward and identify yourself and your concern so that we may debate and make bipartisan progress on these important legislative matters. First is S. 1974, the FBI Reform Act, which I introduced with Senator Grassley in February, after extensive oversight hearings. This bill would strengthen the FBI in its fight against terrorism, and was reported unanimously by the Judiciary Committee in April of this year. Since the attacks of September 11, and the anthrax attacks last fall, we have relied on the FBI to detect and prevent acts of catastrophic terrorism that endanger the lives of the American people and the institutions of our country. FBI reform was already important, but the terrorist attacks suffered by this country last year have imposed even greater urgency on improving the FBI. The Bureau is our front line of domestic defense against terrorists. Even before those attacks, the Judiciary Committee's oversight hearings revealed serious problems at the FBI that needed strong congressional action to fix. We heard about a double standard in evaluations and discipline. We heard about record and information management problems and communications breakdowns between field offices and Headquarters that led to the belated production of documents in the Oklahoma City bombing case. Despite the fact that we have poured money into the FBI over the last 5 years, we heard that the FBI's computer systems were in dire need of modernization. We heard about how an FBI supervisor, Robert Hanssen, was able to sell critical secrets to the Russians undetected for years without ever getting a polygraph. We heard that there were no fewer than 15 different areas of security at the FBI that needed fixing. The FBI Reform Act tackles these problems with improved accountability, improved security both inside and outside the FBI and required planning to ensure the FBI is prepared to deal with the multitude of challenges we are facing. Just over the past month, the FBI Director has referred to the Justice Department inspector general important matters about the handling of probative information like the Phoenix report before the 9- 11 attacks. The FBI reform bill expands the Justice Department inspector general's authority to investigate all allegations of misconduct at the FBI. The FBI Reform Act also strengthens whistleblower protections for FBI employees who report misconduct to Members of Congress, as Minneapolis Field Office Agent Coleen M. Rowley did. The FBI Reform Act also puts an end to statutory restrictions that contribute to the ``double standard,'' where senior management officials are not disciplined as harshly for misconduct as line agents are. Agent Rowley complained about this double standard in her May 21 letter criticizing Bureau Headquarters about its handling of the Moussaoui case. Just this week the Judiciary Committee held an extensive hearing with the FBI Director, the Department of Justice inspector general and Special Agent Rowley. Any doubts that this legislation is needed and needed without further delay had to be erased by their candid testimony. The FBI Reform Act was unanimously reported by the oversight committee for the FBI and reflects our determination to make sure that the FBI is as good and strong as it can be, and, all the more today, given the higher stakes, as good and as strong as America needs the FBI to be. This reform bill is a long stride toward that goal. I urge the Republican Members who have blocked passage of this bill to come forward and identify themselves, to speak to Senator Grassley and me about the importance of this legislation, and to share any concerns they may have so that we may proceed without further delay. Last December I introduced S. 1770 to implement two antiterrorism treaties, the Terrorist Bombing Convention and the Suppression of the Financing of Terrorism Convention. The antiterrorist bombing bill would bring the United States into immediate compliance with important international conventions signed by the United States under President Clinton's leadership. The two antiterrorism treaties at issue were transmitted to the Senate for ratification by President Clinton in 1999 and 2000, but not acted upon until the Senate reorganized under a Democratic majority last summer. The United States signed these treaties after the tragic terrorist bombings at the United States embassies in Kenya and Tanzania. Before control of the Senate changed hands, there was no action taken on these treaties in the Foreign Relations Committee. The antibombing treaty in particular sat in the Foreign Relations Committee for approximately 2 years without action during the Clinton administration when the Senate was under Republican control. Senator Biden deserves credit for acting quickly to report these treaties within weeks after he assumed chairmanship of the Foreign Relations Committee. Yet even as Senator Biden was pushing to move the treaties themselves through the Senate, the Bush administration did not transmit proposed implementing legislation to the Judiciary Committee before or during the time that we were working together day and night to write the USA Patriot Act, the bipartisan antiterrorism legislation responding to the events of September 11. I remain puzzled why the administration felt that this measure should be separated from that effort. Both treaties require the signatory nations to enact certain, precisely worded criminal provisions in their laws in order to be in compliance. That is what S.1770, the Leahy bill, does. I introduced S.1770, on December 5, 2001, shortly after passage of the USA Patriot Act, as a separate bill. This was the same day that the Senate agreed to ratify both treaties. I then tried to move the bill quickly through the Senate, but an anonymous Republican hold blocked passage. Again this year I tried to move the bill through the Senate, but again there was an anonymous hold from the Republican side of the aisle which blocked its passage. Had there not been a hold placed on the bill last year, I am quite sure that we could have resolved any remaining issues in conference, as the Republican-controlled House was simultaneously passing its own version of my bill. After the anonymous hold was placed on S. 1770 at the end of the last session, we received a letter from the Department of Justice in late January of this year about the bill. The letter stated that the Department ``support[ed] the legislation but recommend[ed] several modifications.'' None of the modifications which the Department recommended dealt with issues that were necessary for compliance with the treaties, the basic purpose of the bill. The Leahy bill would bring us into full compliance with those important obligations and take away an excuse from nations that are hesitant to cooperate in the war against terrorism. The recent spate of horrible suicide bombings around the world and the fact that the convention prohibiting terrorist financing entered into force on April 10, 2002, demonstrate the pressing need for this legislation. As if that was not enough, last month the FBI Director warned that he believes that suicide bombings in the United States are ``inevitable,'' bringing home the point that this legislation is required both to fight terrorism at home and abroad. Nevertheless, S. 1770 has been subjected to an anonymous Republican hold since December of last year. In the post-September 11 environment it is almost beyond my understanding why any Member of this body would secretly obstruct passage of an important piece of antiterrorism legislation--yet here we are in June, blocked from compliance with two international terrorism treaties by a secret Republican hold. The third bill is S. 864, the Anti-Atrocity Alien Deportation Act, which I introduced year and was reported by the Judiciary Committee, with bipartisan support, to close loopholes in our immigration laws that have allowed war criminals and human rights abusers to enter and remain in this country. I have been appalled that this country has become a safe haven for those who exercised power in foreign countries to terrorize, rape, murder, and torture innocent civilians. A recent report by Amnesty International claims that nearly 150 alleged human rights abusers have been identified living here, but warns that this number may be as high as 1,000. Observers have noted the irony that in the wake of the September 11, 2001, attacks, hundreds of foreigners have been rounded up though not charged with any terrorism-related crime. Yet at the same time, ``hundreds, if not thousands, of foreign nationals who have been plausibly accused of the most heinous human rights crimes, including torture and assassination, either have lived or still live freely in the U.S.'' [William Schulz, ``The Torturers Among Us,'' New York Review, p. 22, April 25, 2002.] This bill would not only add the new grounds, but also expand current grounds, for inadmissibility and deportation, by barring those aliens who have engaged, outside the United States, in ``torture'' and ``extrajudicial killing'' and removing artificial limitations on the current grounds for exclusion for aliens who commit ``genocide'' and ``particularly severe violations of religious freedom.'' This bill is important for the victims of these heinous crimes who seek refuge in this country and important for Americans to show that we will not tolerate perpetrators of genocide, extrajudicial killing and torture, living among us. I urge the Republican Members who have blocked passage of this bill to come forward and identify themselves, to share any concerns they may have so that we may proceed without further delay. I was pleased when the Senate did take up and pass the Mychal Judge Police and Fire Chaplains Public Safety Officers' Benefit Act of 2002 that I sponsored with Senators Campbell, Schumer, Clinton, and Biden. Named for Chaplain Mychal Judge, who was killed while responding with the New York City Fire Department to the September 11 terrorist attacks on the World Trade Center, this legislation recognizes the invaluable service of police and fire chaplains in crisis situations by allowing for their eligibility in the Public Safety Officers' Benefit Program. Father Judge, while deemed eligible for public safety officer benefits, was survived by his two sisters who, under current law, are ineligible to receive payments through the PSOB Program. This is simply wrong and must be remedied. Indeed, Father Judge is among 10 public safety officers who were killed on September 11, but who are ineligible for Federal death benefits because they died without spouses, children, or parents. This bill would retroactively correct this injustice by expanding the list of those who may receive public safety officer benefits to the beneficiaries named on the most recently executed life insurance policy of the deceased officer. This change would go into effect on September 11 of last year to make sure the families of Father Judge and the nine other fallen heroes receive their public safety officer benefits. In addition, this bill would retroactively restructure the Public Safety Officers' Benefit Program to specifically include chaplains as members of the law enforcement and fire units they serve, and would make these chaplains eligible for the one-time $250,000 benefit available to public safety officers who have been permanently disabled as a result of injuries sustained in the line of duty, or to the survivors of officers who have died. This measure is strongly supported by the National Association of Police Organization, the Fraternal Order of Police, and the American Federation of State, County and Municipal Employees. Despite its Senate's passage and in spite of the fact that the House Judiciary Committee has favorably reported the House companion bill with bipartisan support to the House, the House Republican leadership has refused to follow through with passage of these measure. I urge the House Republican leadership to reconsider its decision and allow this important matter to proceed to final passage. These bills are not alone in being blocked by anonymous Republican holds. Holds have been placed on other important bills that the Judiciary Committee has acted upon and reported favorably to the Senate. Let me just cite a couple examples: S. 2010, the Corporate and Criminal Fraud Accountability Act, which I introduced after the Enron debacle to restore confidence in our securities; S. 2179, the Law Enforcement Tribute Act, which was introduced by Senator Carnahan to help State and local police pay for memorials to honor fallen officers; and S. 407, the Madrid Protocol Implementation Act, to help American businesses better protect their intellectual property in the international marketplace. In addition to the Mychal Judge Police and Fire Chaplains Public Safety Officers Benefit Act, many other Senate-passed are languishing in the House of Representatives. These include the Federal Judiciary Protection Act, S. 1099, which I cosponsored with Senator Gordon Smith; the James Guelff and Chris McCurley Body Armor Act, S. 166, which was sponsored by Senator Feinstein; and the TEACH Act, S. 487, which I sponsored with Senator Hatch. These bipartisan measures were passed by unanimous consent through the Senate last year, but have been held hostage without action in the House for too many months. None of these 10 matters should be partisan, yet again and again, anonymous Republican holds have stopped Senate and congressional action. I appeal to my Republican colleagues in the Senate to lift their secret holds and to the Republicans in both Houses to stop obstructing these bipartisan bills, that are intended to protect our national security, our public safety, America's borders, and American businesses.

Mr. LEAHY

Mr. LEAHY. Mr. President, I compliment the assistant majority leader. Seeing Senator Reid on the floor--along with Senator Reed of Rhode Island and Senator Akaka it seems only minutes ago I saw all of them as we were finishing up at 1 o'clock this morning. I appreciate the courtesy of the Senator from Hawaii in letting me speak at this point. The distinguished senior Senator from Nevada did an enormous job in getting the emergency supplemental appropriations bill passed last night. I have told the distinguished senior Senator from Nevada many times that he has patience this Irish-Italian American probably never could have. But it was his patience, his persistence, and also the great credibility he has on both sides of the aisle, and the great respect of Senators in both parties, that made it possible for him to get that bill passed. Had he not carefully worked with Senator Byrd, Senator Stevens, and all the others to get that through, we would still be on the floor and we would not be anywhere near passage. I compliment my friend from Nevada.

Mr. LEAHY. Mr. President, I agree with the senior Senator from Nevada. Everybody is going to say they are against hate crimes. Nobody is going to say they are for hate crimes. But if we are against them, then let's pass laws that give our law enforcement officers the teeth to go after hate crimes. Let's not go through the fiction of trying to amend this bill to death so nothing comes forward. We cannot let everyone say they are against hate crimes while some do their best to kill the hate crimes legislation. Violent crimes motivated by prejudice and hate are tragedies that demand our attention. These crimes mar our history, from the lynchings that haunted our race relations for more than a century to the recent well-publicized slayings of Matthew Shepard and James Byrd, Jr. Since September 11, we have seen a disturbing increase in crimes committed against Arabs, Muslims, and those of South Asian descent. In other words, hate has been a persistent threat to the public safety, especially the safety of minority group members. I am not naive enough to think we can outlaw hate, but we can make outlaws of those who commit hate crimes. We can do a lot more to protect Americans from these crimes, and to ensure equal rights for all our citizens. The Local Law Enforcement Enhancement Act will do just that. It will provide a measure of protection for those who fear the violent consequences of prejudice. I am proud to be a cosponsor of this legislation. I am also proud that it is one of the first bills I moved through the Judiciary Committee after I became chairman. I had the opportunity as a new chairman to set priorities by deciding what would be on the agenda. I made sure this was one of the first bills the Committee considered. I am grateful to Senators Kennedy, Specter, and Smith for their bipartisan leadership on this issue. Unfortunately, the bipartisanship surrounding this bill is not universal, as the distinguished Senator from Nevada has already pointed out. Republicans objected before the Memorial Day recess to a unanimous consent request that would have allowed this bill to come to the full Senate for debate. I wish they had allowed it to do that. It could have been passed by now. I am glad we can now begin debate. I am honored to open the debate. Senator Kennedy is with his family today following a long-time family commitment, but he will join us on Monday to debate this important bill. The hate crimes legislation we consider today strengthens current law by making it easier for Federal authorities to investigate and prosecute crimes based on race, color, religion, and national origin. Victims will no longer have to be engaged in a narrow range of activities, such as serving as a juror, to be protected under Federal law. In other words, if a criminal commits a hate crime against a juror, he or she can be prosecuted under Federal law. But if a criminal commits the same hate crime against the same victim, while the victim is conducting private business, that criminal is immune from prosecution under Federal hate crimes law. This bill also focuses the attention and resources of the Federal Government on the problem of hate crimes committed against people because of their sexual orientation, or their gender, or their disability. That is an important step. Now, opponents of this legislation like to say that ``all crimes are hate crimes.'' But everyone in this Chamber agrees that some crimes are more serious--and more deserving of Federal attention--than others. We have repeatedly increased the Federal role in fighting crime over the last decades, from the hijacking of airplanes to carjacking to drug crimes. So the question we face today is whether crimes motivated by prejudice deserve greater Federal attention than the limited amount they receive today. I believe they do, and I know 50 other U.S. Senators from both parties who have sponsored this bill agree with me. The crimes we are talking about today are particularly pernicious crimes that affect more than just the victims and their families--they inspire fear in those who have no connection to the victim beyond a shared characteristic, such as race or disability or sexual orientation. Mr. President, when James Byrd, Jr., was dragged behind a pickup truck--dragged--one can only imagine the terror and horror he felt in the face of his violent death. He was killed by bigots in Texas in 1998. Why? For the sole reason that he was black. Think how many African Americans throughout our Nation felt diminished as citizens to know that another African American was horribly, brutally killed simply because of the color of his skin. When Matthew Shepard was murdered in Wyoming, he was left hanging on a fence. Why? Because he was gay. Don't you think gays and lesbians in the United States felt less safe on the streets and in their homes? These crimes promote fear and insecurity that are distinct from the reactions to other crimes. They produce a national reaction. We need to take action to enhance their prosecution. These terrible crimes have also affected my little State of Vermont. In 1996, Julianne Williams and Lollie Winans were murdered in the Shenandoah National Park in Virginia. Ms. Williams lived in Burlington, VT. She and Ms. Winans were planning to move to Huntington, VT, after their hiking trip to Virginia. (Huntington, VT, I must say, is a beautiful little town, one of the most peaceful places you can imagine.) They were murdered. In April, the Justice Department indicted Darrell Davis Rice for murder. The prosecutors invoked the Hate Crimes Sentencing Enhancement Act, charging that Mr. Rice killed the two women as part of his plan to ``assault, intimidate, injure, and kill women because of their gender.'' Prosecutors said that Rice had stated that he ``hates gays.'' He said he had taken it upon himself to determine that Ms. Williams and Ms. Winans ``deserved to die because they were lesbians.'' What a horrible commentary. This man decided in his mind they deserved to die, so he was going to kill them. Now, Rice was susceptible to Federal hate crime laws because the murders occurred on Federal land. If he had been indicted for killing these women in Huntington, VT, he would not have been susceptible to this enhancement. So his indictment fell within a narrow window. With passage of this act, we can provide Federal protection to women, gays and lesbians throughout our Nation. All Americans have the right to live, travel, and gather where they choose. In the past, we have responded as a Nation to deter and to punish violent denials of civil rights. We have enacted Federal laws to protect the civil rights of all of our citizens for nearly 150 years. This law continues that great and honorable tradition. This bill will strengthen Federal jurisdiction over hate crimes as a backup, but not a substitute, for State and local law enforcement. States will still bear the responsibility for prosecuting most hate crimes. That is important to me as a former State prosecutor. I have a great deal of respect for the law enforcement officers in my State, such as David Demag, the Police Chief in Essex, VT, who is now serving on the Medal of Valor Review Board. I want the States to have primary jurisdiction, because they can handle most hate crimes prosecutions. But there are times when Federal assistance is helpful and even necessary. For those cases, we must have this Federal law. In a sign that this legislation respects the proper balance between Federal and local authority, it has received strong bipartisan support from State and local law enforcement organizations across the country. This support convinces me that we should pass this powerful law enforcement tool without further delay. Moreover, this bill accomplishes a critically important goal-- protecting all of our citizens--without compromising our constitutional responsibilities. It is a tool for combating acts and threats of violence motivated by hatred and bigotry. It doesn't target pure speech--even that speech that you and I and everybody finds offensive or disagreeable. The Constitution does not permit us in Congress to prohibit the expression of an idea simply because we disagree with it. As Justice Holmes wrote, the Constitution protects not just freedom for the thought and expression we agree with, but freedom for the thought that we hate. I am devoted to that principle, and I am confident that this bill does not contradict it. Indeed, Senator Kennedy, who has been a leader on civil rights for four decades, has worked carefully and hard to tailor this needed remedy to the narrowing restrictions of the current very activist Supreme Court. It is long past time to pass this bill. Of course, the Senate has done its part before. In 1999, we passed it as part of the Commerce- Justice-State appropriations bill, but the House insisted on its removal. In 2000, the Senate voted 57 to 42 to include it as an amendment to the Department of Defense authorization bill. That year, the House even voted 232 to 192 to instruct House conferees on the bill to agree to the Senate language on hate crimes. Nonetheless, the House Republican leadership insisted on its removal and they won. So despite the best efforts of former President Clinton and us all, we were twice unable to overcome the opposition of the other body. I hope we will this time. I hope the House Republicans will finally allow a vote on this measure. I urge President Bush to ask them to do so. Think about what the President said so eloquently last week at West Point. I think of this because the distinguished Presiding Officer is a well-respected graduate of West Point. When the President spoke at West Point's commencement about our fight against terrorism, he called it a conflict between good and evil and said that we cannot allow other nations to ``tolerate the hatred that leads to terror.'' He correctly stated that ``there can be no neutrality between justice and cruelty.'' He promised that ``the United States will promote moderation and tolerance and human rights.'' I agree with President Bush. And I believe that passage of this legislation will show once again that America values tolerance and protects all of its people. I urge the opponents of this legislation to consider the message it sends to the rest of America when, year after year, we are unable to move this broadly supported bill. A majority of the people in the Senate support this bill, a majority of the people in the House of Representatives support it, and a majority of Americans support it. Yet a small group blocks it from going forward. What does that say about our American values? I say to the Republican leadership in the other body and in our own: Listen to what President Bush has so eloquently said at West Point. Let's pass this legislation. The victims of hate deserve our support-- the victims do. Those who would impose hateful conduct upon them deserve to know that the United States of America doesn't stand for that. So we need a vote, both in this body and in the House of Representatives. If we have such a vote, Mr. President, we will once again make it very clear: The U.S. Government does not tolerate hate and intolerance, no matter who it is directed against. Making that statement, we make our Nation even stronger. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to introduce the Enhanced Protection of Our Cultural Heritage, EPOCH, Act of 2002. This legislation will increase the maximum penalties for violations of three existing statutes that protect the cultural and archaeological history of the American people, particularly Native Americans. The United States Sentencing Commission recommended the statutory changes contained in this bill, which would complement the Commission's strengthening of Federal sentencing guidelines to ensure more stringent penalties for criminals who steal from our public lands. I welcome the Commission's suggestion and am pleased that Senators Inouye, Clinton, Bingaman, and Boxer have joined me as cosponsors. This bill will increase the maximum penalties for the Archaeological Resources Protection Act, ARPA, 16 USC Sec. 470ee, the Native American Graves Protection and Repatriation Act, NAGPRA, 18 USC Sec. 1170, and for 18 USC Sec. 1163, which prohibits theft from Indian Tribal Organizations. All three statutes currently impose a 5-year maximum sentence, and each includes a lower maximum for a first offense of the statute and/or a violation of the statute involving property of less than a specified value. This bill would create a 10-year maximum sentence for each statute, while eliminating the lower maximums under ARPA and NAGPRA for first offenses. Such maximum sentences would be consistent with similar Federal statutes. For example, the 1994 law proscribing museum theft carries a 10-year maximum sentence, as do the general statutes punishing theft and the destruction of government property. Moreover, increasing the maximum sentences will give judges and the Sentencing Commission greater discretion to impose punishments appropriate to the amount of destruction a defendant has done. Making these changes will also enable the Sentencing Commission's recent sentencing guidelines to be fully implemented. The Commission has increased sentencing guidelines for cultural heritage crimes, but the statutory maximum penalties contained in current law will prevent judges from issuing sentences in the upper range of the new guidelines. Those new guidelines have the enthusiastic support of the Justice and Interior Departments, the Society for American Archeology, the National Trust for Historic Preservation, numerous Native American nations, and many others. Congress should take the steps necessary to see the guidelines take full effect. Two of the three laws we amend with this legislation protect Native American lands and property. The third, ARPA, protects both public and Indian lands, and provides significant protection to my State of Vermont. For example, ARPA can be used to prosecute those who would steal artifacts from the wrecked military vessels at the bottom of Lake Champlain that date to the Revolutionary War and the War of 1812. U.S. Attorneys can also use ARPA to prosecute criminals who take items that are at least 100 years old from a protected site on Vermont State property without a permit, and then transport those goods into another State. In addition, ARPA protects artifacts found on the approximately 5 percent of Vermont land that is Federal property, land that includes many ``ghost towns'' that have long been abandoned but are an important part of our history. Those who would pillage the rich cultural heritage of this Nation and its people are committing serious crimes. These artifacts are the legacy of all Americans and should not be degraded as garage sale commodities or as fodder for private enrichment. I would like to thank a number of people for their help and advice about this legislation. Charlie Tetzlaff, as well as the rest of the staff at the Sentencing Commission, helped us understand the importance of this issue, and made protecting our cultural heritage a priority when he served as United States Attorney for Vermont. Art Cohn, the director of the Lake Champlain Maritime Museum, and Giovanna Peebles, Vermont's State Archeologist, were very helpful in explaining how our laws protect the cultural heritage of Vermont and the rest of the Nation, and I am grateful for their support for this bill. Passage of this legislation would demonstrate Congress' commitment to preserving our Nation's history and our cultural heritage. I urge my colleagues to support this common-sense initiative. I would ask that the text of this legislation be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to introduce the Enhanced Protection of Our Cultural Heritage, EPOCH, Act of 2002. This legislation will increase the maximum penalties for violations of three existing statutes that protect the cultural and archaeological history of the American people, particularly Native Americans. The United States Sentencing Commission recommended the statutory changes contained in this bill, which would complement the Commission's strengthening of Federal sentencing guidelines to ensure more stringent penalties for criminals who steal from our public lands. I welcome the Commission's suggestion and am pleased that Senators Inouye, Clinton, Bingaman, and Boxer have joined me as cosponsors. This bill will increase the maximum penalties for the Archaeological Resources Protection Act, ARPA, 16 USC Sec. 470ee, the Native American Graves Protection and Repatriation Act, NAGPRA, 18 USC Sec. 1170, and for 18 USC Sec. 1163, which prohibits theft from Indian Tribal Organizations. All three statutes currently impose a 5-year maximum sentence, and each includes a lower maximum for a first offense of the statute and/or a violation of the statute involving property of less than a specified value. This bill would create a 10-year maximum sentence for each statute, while eliminating the lower maximums under ARPA and NAGPRA for first offenses. Such maximum sentences would be consistent with similar Federal statutes. For example, the 1994 law proscribing museum theft carries a 10-year maximum sentence, as do the general statutes punishing theft and the destruction of government property. Moreover, increasing the maximum sentences will give judges and the Sentencing Commission greater discretion to impose punishments appropriate to the amount of destruction a defendant has done. Making these changes will also enable the Sentencing Commission's recent sentencing guidelines to be fully implemented. The Commission has increased sentencing guidelines for cultural heritage crimes, but the statutory maximum penalties contained in current law will prevent judges from issuing sentences in the upper range of the new guidelines. Those new guidelines have the enthusiastic support of the Justice and Interior Departments, the Society for American Archeology, the National Trust for Historic Preservation, numerous Native American nations, and many others. Congress should take the steps necessary to see the guidelines take full effect. Two of the three laws we amend with this legislation protect Native American lands and property. The third, ARPA, protects both public and Indian lands, and provides significant protection to my State of Vermont. For example, ARPA can be used to prosecute those who would steal artifacts from the wrecked military vessels at the bottom of Lake Champlain that date to the Revolutionary War and the War of 1812. U.S. Attorneys can also use ARPA to prosecute criminals who take items that are at least 100 years old from a protected site on Vermont State property without a permit, and then transport those goods into another State. In addition, ARPA protects artifacts found on the approximately 5 percent of Vermont land that is Federal property, land that includes many ``ghost towns'' that have long been abandoned but are an important part of our history. Those who would pillage the rich cultural heritage of this Nation and its people are committing serious crimes. These artifacts are the legacy of all Americans and should not be degraded as garage sale commodities or as fodder for private enrichment. I would like to thank a number of people for their help and advice about this legislation. Charlie Tetzlaff, as well as the rest of the staff at the Sentencing Commission, helped us understand the importance of this issue, and made protecting our cultural heritage a priority when he served as United States Attorney for Vermont. Art Cohn, the director of the Lake Champlain Maritime Museum, and Giovanna Peebles, Vermont's State Archeologist, were very helpful in explaining how our laws protect the cultural heritage of Vermont and the rest of the Nation, and I am grateful for their support for this bill. Passage of this legislation would demonstrate Congress' commitment to preserving our Nation's history and our cultural heritage. I urge my colleagues to support this common-sense initiative. I would ask that the text of this legislation be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Madam President, I want to express my strong opposition to the McCain Amendment that would strike the $2 million for the National Museum of Natural History that is provided in the Emergency Supplemental Appropriations bill. The events of September 11 prompted multiple reviews of the security at all federal facilities. These reviews have highlighted a number of measures that need to be taken to improve the safety for employees and visitors at federal facilities. One important item that has been brought to our attention is the potential volatility of a storage facility located in the heart of Washington, near the national Mall. The National Museum of Natural History is recognized internationally as a premier museum and research facility. Unfortunately, tens of thousands of specimens are currently stored in 730,000 gallons of highly flammable alcohol. I commend Chairman Byrd and Senator Stevens for including $2 million to begin design for a new facility that would safely store the specimens and do so in a location that is away from such a high traffic area. I urge my colleagues to oppose this amendment.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to pay tribute to a distinguished Vermonter, and my friend, Edwin Colodny. Ed Colodny spent the early years of his life growing up in Burlington, VT. After graduating from Burlington High School, Ed Colodny entered public service as a First Lieutenant in the U.S. Army serving with the Office of the Judge Advocate General. Ed's next career step brought him to the business world where he joined U.S. Airways. During his 35-year career with the company, Ed rose through the ranks to become President and Chief Executive Officer. U.S. Airways grew from a small regional carrier to a major national airline with $6.5 billion in revenues during his tenure--no doubt due in great part to his tremendous leadership. The University of Vermont is Vermont's largest public institution of higher education. The school is one of the oldest in our nation, founded by Ira Allen, the younger brother of the leader of the Green Mountain Boys, Ethan Allen. Throughout its more than 200-year history, UVM has played an important role in the lives of many Vermonters. Over the past decade, a number of different people have occupied the UVM President's Office. This leadership turnover has led to some challenges for the school. Last February, UVM faced a particularly difficult time when its sitting President resigned in the middle of the academic year. The school was in the midst of implementing major program reforms and budget cuts as part of a strategic plan that had been adopted by the Board of Trustees; the faculty were organizing a union; and, ongoing student housing issues created some tension between the University and the local Burlington community. The prospect of a leadership void at such a tumultuous time, while a lengthy search for a new President was underway, posed a daunting challenge for the school and its leaders. It was in that time of need that Ed Colodny agreed to give up his work in private legal practice and move back to Vermont with his wife Nancy to serve as UVM's Interim President. We are all extremely grateful to them for making that sacrifice. Ed has skillfully guided the University through a difficult time, while continuing to implement important policies and reforms that will provide a strong and valuable foundation for the incoming President. The Board of Trustees recently appointed Dr. Daniel Fogel to become UVM's new President and he will be formally taking over the post in July. Thanks to Ed's hard work and strong vision over the past year, as well as that of his entire leadership team, Dr. Fogel will be welcomed by a stable university that is prime for a promising future. In Ed's short time as President of UVM, he never lost focus of what UVM and all higher education institutions must be about--academic excellence. Last fall, to celebrate the University's 210th year, Ed revived the longstanding but dormant tradition of holding an Opening Convocation ceremony. This was a special opportunity for the UVM community to kick off a new academic year together, and to reaffirm its central mission of providing a high quality education to students in the Green Mountains of Vermont. Ed recognized people's desire to have an opportunity to come together and celebrate the pride they hold for their school and all that it has to offer. As Ed said when announcing the revival of this tradition, ``The convocation is an opportunity for us to come together as a university community and reaffirm our commitment to the academic ideals we treasure deeply.'' Those words symbolize so much of what Ed has offered UVM over the past year. He has reminded us of the potential power and success that the UVM community possesses when it comes together. He has reminded us of the need to be committed to academic ideals. And, through his leadership in a time of need, Ed has reminded us of the powerful role just one person can play in the lives of so many others. On behalf of myself, and all Vermonters, I thank my good friend Ed Colodny for his leadership, his commitment to higher education, and his service and dedication to UVM and the State of Vermont. Marcelle and I know we are all better off as a result of Ed and Nancy Colodny's time revisiting Burlington.

Mr. LEAHY

Mr. LEAHY. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEAHY. Madam President, I ask unanimous consent to proceed as in morning business for 4 minutes.

Mr. LEAHY. I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, yesterday I was honored to attend the 21st Annual National Peace Officers Memorial Day Services at the Capitol. Sadly, last year was the deadliest year in law enforcement history since 1974. In 2001, 230 law enforcement officers were killed in the line of duty including 72 fallen heroes who were killed on September 11. These brave public servants risked and sacrificed their own lives so that others might live. Each one of us owes these courageous men and women, and their families, a debt of gratitude that we can never fully repay. During Police Memorial Week, I hope that Congress will act on two pieces of legislation to appropriately honor the families of brave public safety officers who sacrificed their own lives for their fellow Americans. First, I urge the House of Representatives to take up the Mychal Judge Police and Fire Chaplains Public Safety Officers' Benefit Act of 2002, S. 2431. The Senate passed this bipartisan legislation more than a week ago. It is needed to amend the Public Safety Officers' Benefit Program to permit the families of 10 public safety officers killed on September 11 to retroactively receive $250,000 each in Federal death benefits. Senator Campbell and I introduced this bipartisan measure, cosponsored by Senators Schumer, Clinton, Biden and Feingold, to retroactively restructure the Public Safety Officers' Benefit Program to provide benefits to fallen officers who died without a surviving spouse, child, or parent. I commend Representatives Manzullo and Nadler for their bipartisan leadership on the House version of this bill, H.R. 3297. Named for Chaplain Mychal Judge, who was killed while responding with the New York City Fire Department to the September 11 terrorist attacks on the World Trade Center, our bipartisan legislation recognizes the invaluable service of police and fire chaplains in crisis situations by allowing for their eligibility in the Public Safety Officers' Benefit Program. Father Judge, while deemed eligible for public safety officer benefits, was survived by his two sisters who, under current law, are ineligible to receive death benefits. This is simply wrong and must be remedied. Indeed, Father Judge is among 10 public safety officers killed on September 11 whose survivors are ineligible for Federal death benefits because they are not surviving spouses, children, or parents of the officers. This bill would retroactively correct this injustice by expanding the list of those who may receive public safety officer benefits to the beneficiaries named on the most recently executed life insurance policy of the deceased officer. This change would go into effect on September 11 of last year to make sure the families of Father Judge and the nine other fallen heros receive their public safety officer benefits. By taking up the Senate-passed Mychal Judge Police and Fire Chaplains Public Safety Officers' Benefit Act during Police Memorial Week, the House of Representatives can provide much-needed relief for 10 families of public safety officers who sacrificed their lives on September 11. Second, I hope that later today the Senate will consider the Law Enforcement Tribute Act, S. 2179, introduced by Senator Carnahan. The Senate Judiciary Committee unanimously approved this legislation to create a $3 million Department of Justice grant program to help States, local governments and Indian tribes establish permanent tributes to fallen public safety officers. I am proud to be an original cosponsor of Senator Carnahan's bill to honor officers killed in the line of duty. During Police Memorial Week, the Senate should pass Senator Carnahan's legislation to provide Federal resources to our States and local communities to pay proper tribute to the brave public safety officers. I hope Congress will act expeditiously on these two important pieces of legislation to salute public safety officers across the country and honor the brave men and women who gave the ultimate sacrifice to serve and protect us.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I join Senator Hatch in introducing the PROTECT Act of 2002. This bill is intended to protect our Nation's children from exploitation and protect our constitution at the same time. In the Free Speech Coalition case, seven Justices of the Supreme Court ruled that the definition of child pornography in the CPPA was overbroad and covered such non-obscene movies as Traffic, Romeo and Juliet, and American Beauty. No one intended that. It also ruled that Congress could not broadly ban all ``virtual child pornography,'' which may make prosecutors' jobs very tough in the internet age. The Court in Free Speech faced a difficult task--as do we here-- applying the time honored principles of the first amendment to the computer age. I join Senator Hatch today in introducing a bill carefully drawn to stick. As a former prosecutor, I am more interested in making real cases that protect children than making new first amendment law. There are many people who do not agree with the Supreme Court's decision in Free Speech, but that will not erase it from the books. Everyone wants to protect our children, but we need to do it with cases and laws that don't get tossed out in court. It is tempting to rush to come up with a ``quick fix,'' but we owe our children more than just a press conference on this matter. We owe them careful and thoughtful action. My initial review of the administration's proposal, now working its way through the House, gives me serious concern. Already I have a letter from six constitutional experts--prominent practitioners and law professors alike--that expresses ``grave concern'' about the Department of Justice's proposal from a first amendment perspective. I will put that statement in the Record at the conclusion of my remarks. Indeed, the entire approach that the administration has taken in this matter is to reach as far as possible, not to hedge its bets, and simply to throw down the gauntlet on the steps of the Supreme Court, daring it to strike down the law yet again. That will help no one. In contrast, the bipartisan bill we introduce today is not an attempt to ``get around'' the Supreme Court's decision, or to ignore that decision. Instead, Senator Hatch and I have together to craft a bill that attempts to work within the limits set by the Supreme Court. At the same time, the bill contains tough enforcement tools which are not in the administration's bill. For instance, it creates a new crime aimed at people who actually use child pornography, whether real or virtual, to entice children to do illegal acts. This crime carries a tough 15- year maximum prison sentence for a first offense. Second, the bill requires the U.S. Sentencing Commission to address a disturbing disparity in the current Sentencing Guidelines. The current sentences for a person who actually travels across state lines to have sex with a child are not as high as for producing child pornography. The Commission needs to correct this disparity immediately, so that prosecutors are able to deal just as effectively with dangerous sexual predators off the street as with child pornographers. Third, this bill has several provisions designed to protect the children so that they are not victimized again in the criminal process. This bill provides for the first time ever a ``shield law'' that prohibits the name or other identifying information of the child victim from being admitted at any child pornography trial. Next, this bill also provides a new private right of action for the victims of child pornography. This provision has teeth, including punitive damages that will put those who produce child pornography out of business. I commend Senator Hatch for including this provision. None of these new prosecutorial tools presents first amendment issues. They are not going to result in Supreme Court arguments--all they will do is get bad guys in jail and protect children. Other parts of the bill are closer to the first amendment line, and I expect that the debate on the constitutional issues raised by this bill will be vigorous. That being said, this bill reflects a good faith attempt to protect children to the greatest extent possible while not crossing that line. I look forward to the debate on these issues, and I do not pretend that I or any of us here have a monopoly on wisdom when it comes to such important constitutional questions. For all of these reasons, I am pleased to introduce this legislation with Senator Hatch. To reiterate, this bill is intended to protect our nation's children from exploitation by those who produce and distribute child pornography, within the parameters of the first amendment. Just last month, the Supreme Court in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (April 16, 2002) (``Free Speech''), struck down portions of the 1996 Child Pornography Protection Act (``CPPA'') as being in violation of the first amendment. I voted for that act when it became law in 1996, and I join Senator Hatch today in introducing a bill carefully drawn to square with the Supreme Court's decision and protect our children with a law that when used by prosecutors, will produce convictions that will stick. While that task is not an easy one, Senator Hatch and I are working together to do all we can to protect our children and protect our Constitution at the same time. In Free Speech, the Supreme Court voided two provisions of the CPPA as being overbroad and imposing substantial restrictions on protected speech. The specific provisions struck down in that case targeted No. 1 virtual child pornography--that is, child porn made not using real children but with computer images or adults and No. 2 material which is ``pandered'' as child pornography (though the material may not in fact be as advertised). In a complex and divided opinion, seven Justices ruled that some part of the CPPA was unconstitutional as currently drafted. Only Chief Justice Rehnquist and Justice Scalia, in dissent, would have upheld the CPPA in its entirety and only by reading the statute more narrowly than it appears on its face. The Court in Free Speech faced a difficult task--applying the time honored principles of the first amendment to the computer age. The Internet provides many opportunities for doing good, but also for doing harm. Over the past few years, the Congress has paid a lot of attention to how the Internet is being used to purvey child pornography manufactured through the sexual abuse of children, and has not always been successful in crafting legislation to address this problem that passes constitutional muster. Past efforts, such as the Communications Decency Act, the CPPA and the Child Online Protection Act have all had difficulty overcoming constitutional challenges. The majority opinion in Free Speech is grounded on two basic premises. First, the Court ruled that the definition of child pornography in the CPPA was overbroad and covered a substantial amount of material that was not ``obscene'' under the Supreme Court's traditional obscenity test. The Supreme Court's Miller test provides that only ``obscene'' pornographic images can be prohibited without violating the first amendment. See Miller v. California, 413 U.S. 15 (1973). Under the Miller test, the material must be viewed as a whole, and not judged by any single scene so that material with serious literary, artistic, or scientific value cannot be banned in a blanket manner. Thus, the Court ruled in the Free Speech case that the CPPA went well beyond Miller and covered such non-obscene movies as Traffic, Romeo and Juliet, and American Beauty. Second, the Court ruled that the CPPA could not be saved by the so- called ``child pornography doctrine,'' which excludes yet another class of speech from first amendment protection. Because the CPPA covers a broad array of pornographic material that only ``appears to be'' of children, such as computer images or youthful adults, the Court ruled that such material could not be banned and criminalized under the child porn doctrine first articulated in New York v. Feber, 458 U.S. 747 (1982) (``Ferber''). The Court ruled that the Ferber doctrine was justified based on the harm to real children, and that ``virtual porn,'' or material that ``appeared to be'' child pornography under the CPPA was not sufficiently lined to real child abuse to justify the CPPA's complete ban on it. In reaching this decision the Court considered and rejected some of the government's forceful arguments regarding the harmful secondary effects of even virtual child pornography, finding them insufficient under the first amendment to justify a comprehensive ban. Since certain provisions of the CPPA were overboard and covered such ``protected'' speech, however offensive, the Court struck those provisions down. The Court also struck down the CPPA's definition of ``pandered'' child pornography as overbroad, finding that it criminalized possession of non-obscene material not just by the so-called ``panderer,'' but by downstream possessors who might not have any knowledge as to how it was originally sold or marketed. The Free Speech decision has placed prosecutors in a difficult position. With key portions of the CPPA gone, the decision invites all child porn defendants, even those who exploit real children, to assert a ``virtual porn'' defense in which they claim that the material at issue is not illegal because no real child was used in its creation. the increasing technological ability to create computer images closely resembling real children may make it difficult for prosecutors to obtain prompt guilty pleas in clear-cut child porn cases and even to defeat such a defense at trial, even in cases where real children were victimized in producing the sexually explicit material. In short, unless we attempt to rewrite portions of the CPPA, the future bodes poorly for the ability of the federal government to combat a wave of child pornography made ever more accessible over the Internet. The bill we introduce today is not an attempt to ``get around'' the Supreme court's decision, or to ignore that decision, as do sizable portions of the administration's bill, which has been introduced in the House of Representatives. Ignoring the law will simply land America's children right back where they started--unprotected. Instead, Senator Hatch and I have together crafted a bipartisan bill that works within the limits set by the Supreme court. I expect that the debate on the complicated constitutional issues raised by this bill will be vigorous, and I appreciate that they may be isolated provisions of the bill that some may think crosses the first amendment line drawn by the court in the Free Speech case. That being said, this bill reflects a good faith attempt to protect children to the greatest extent possible by going up to that line, but not crossing it. I look forward to the debate on these issues as the legislative process moves forward, and I do not pretend that I or any Member of this body has a monopoly on wisdom when it comes to such important and complex constitutional questions. Let me summarize some of the bill's provisions. Section 2 of the bill creates two new crimes aimed at people who distribute child pornography and those who use such material to entice children to do illegal acts. Each of these new crimes carry a 15-year maximum prison sentence for a first offense and double that term for repeat offenders. First, the bill criminalizes the pandering of child pornography, creating a new crime to respond to the Supreme Court's recent ruling striking down the CPPA's definition of pandering. This provision is narrower than the old ``pandering'' definition for two reasons, both of which respond to specific Court criticisms: First, the new crime only applies to the people who actually pander the child pornography or solicit it, not to all those who possess the material ``downstream.'' The bill also contains a directive to the Sentencing Commission which asks them to distinguish between those who pander or distribute such material who are more culpable than those who solicit the material. Second, the pandering in this provision must be linked to ``obscene'' material, which is totally unprotected speech under Miller. Thus, while I acknowledge that this provision may well be challenged on some of the same grounds as the prior CPPA provision, it responds to specific concerns raised by the Supreme Court and is significantly narrower than the CPPA's definition of pandering. Second, the bill creates a new crime to take direct aim at one of the chief evils of child pornography: namely, its use by sexual predators to entice minors either to engage in sexual activity or the production of more child pornography. This was one of the compelling arguments made by the government before the Supreme Court in support of the CPPA, but the Court rejected that argument as an insufficient basis to ban the production, distribution or possession of ``virtual'' child pornography. This bill addresses that same harm in a more targeted manner. It creates a new felony, which applies to both actual and virtual child pornography, for people who use such material to entice minors to participate in illegal activity. This will provide prosecutors a potent new tool to put away those who prey upon children using such pornography--whether the child pornography is virtual or not. Next, this bill attempts to revamp the existing affirmative defense in child pornography cases both in response to criticisms of the Supreme Court and so that the defense does not erect unfair hurdles to the prosecution of cases involving real children. Responding directly to criticisms of the Court, the new affirmative defense applies equally to those who are charged with possessing child pornography and to those who actually produce it, a change from current law. It also allows, again responding to specific Supreme Court criticisms, for a defense that no actual children were used in the production of the child pornography--i.e. that it was made using computers. At the same time, this provision protects prosecutors from unfair surprise in the use of this affirmative defense by requiring that a defendant give advance notice of his intent to assert it, just as defendants are currently required to give if they plan to assert an alibi or insanity defense. As a former prosecutor I suggested this provision because it effects the real way that these important trials are conducted. With the provision, the government can marshal the expert testimony that may be needed to rebut this ``virtual porn'' defense in cases where real children were victimized. This improved affirmative defense provides important support for the constitutionality of much of this bill after the Free Speech decision. Even Justice Thomas specifically wrote that it would be a key factor for him. This is one reason for making the defense applicable to all non-obscene, child pornography, as defined in 18 U.S.C. Sec. 2256. In the bill's current form, however, the affirmative defense is not available in one of the new proposed classes of virtual child pornography, which would be found at 18 U.S.C. Sec. 2256(8)(D). This omission may render that provision unconstitutional under the first Amendment, and I hope that, as the legislative process continues, we can work with constitutional experts to improve the bill in this and other ways. I do not want to be here again in five years, after yet another Supreme Court decision striking this law down. The bill also provides needed assistance to prosecutors in rebutting the virtual porn defense by removing a restriction on the use of records of performers portrayed in certain sexually explicit conduct that are required to be maintained under 18 U.S.C. Sec. 2257, and expanding such records to cover computer images. These records, which will be helpful in proving that the material in question is not ``virtual'' child pornography, may be used in federal child pornography and obscenity prosecutions under this act. The purpose of this provision is to protect real children from exploitation. It is important that prosecutors have access to this information in both child pornography and obscenity prosecutions, since the Supreme Court's recent decision has had the effect of narrowing the child pornography laws, making more likely that the general obscenity statutes will be important tools in protecting children from exploitation. In addition, the act raises the penalties for not keeping accurate records, further deterring the exploitation of minors and enhancing the reliability of the records. Next, this bill contains several provisions altering the definition of ``child pornography'' in response to the Free Speech case. One approach would have been simply to add an ``obscenity'' requirement to the child pornography definitions. Outlawing all obscene child pornography--real and virtual; minor and ``youthful-adult;'' simulated and real--would clearly pass a constitutional challenge because obscene speech enjoys no protection at all. Under the Miller test, such material (1) ``appeals to the prurient interest,'' (2) is utterly ``offensive'' in any ``community,'' and (3) has absolutely no ``literary, artistic or scientific value.'' Some new provisions of this bill do take this ``obscenity'' approach, like the new Sec. 2256(8)(B). Other provisions, however, take a different approach. They attempt to address the fatal flaws identified by the Supreme Court in the CPPA with more narrow definitions of what the Court found were overbroad definitions of ``child pornography,'' which still might not be obscene speech under the test set forth by the Supreme Court. While these new provisions are more narrowly tailored than both the original CPPA and the administration's proposal introduced in the House, these provisions may continue to benefit from further examination by constitutional scholars. Specifically, the CPPA's definition of ``identifiable minor'' has been modified in the bill to include a prong for persons who are ``virtually indistinguishable from an actual minor.'' This adopts language from Justice O'Connor's concurrence in the Free Speech case. Thus, while this language is defensible, I predict that this provision will be the center of much constitutional debate. Unlike Senator Hatch, I believe that this new prong may not be needed, and may both confuse the statute unnecessarily and endanger the already upheld ``morphing'' section of the CPPA because it applies to that provision as well. This new definition may create both overbreadth and vagueness problems in a later constitutional challenge both the new and existing parts of the ``child pornography'' definition. In short, while these new definitional provisions are a good faith effort to go as far as the Constitution allows, they risk crossing the line. It does not do America's children any good to write a law that might get struck down by our courts in order to prove an ideological point. Since most all the real cases being prosecuted even under the CPPA involve clearly obscene material, by anyone's standard, one could legitimately ask, `Why push the envelope and risk cases getting thrown out of court?' These provisions should be fully debated and examined during the legislative process. The bill also contains a variety of other measures designed to increase jail sentences in cases where children are victimized by sexual predators. First, it enhances penalties for repeat offenders of child sex offenses by expanding the predicate crimes which trigger tough, mandatory minimum sentences. Second, the bill requires the U.S. Sentencing Commission to address a disturbing disparity in the current Sentencing Guidelines. The current sentences for a person who actually travels across state lines to have sex with a child are not as high as for child pornography. The Commission needs to correct this oversight immediately, so that prosecutors can take these dangerous sexual predators off the street. These are all strong measures designed to protect children and increase prison sentences for child molesters and those who otherwise exploit children. The act also has several provisions designed to protect the children who are victims in these horrible cases. Privacy of the children must be paramount. It is important that they not be victimized yet again in the criminal process. This bill provides for the first time ever an explicit shield law that prohibits the name or other identifying information of the child victim (other than the age or approximate age) from being admitted at any child pornography trial. It is also intended that judges will take appropriate steps to ensure that such information as the child's name, address or other identifying information not be publicly disclosed during the pretrial phase of the case or at sentencing. The bill also contains a provision requiring the judge to instruct the jury, upon request of the government, that no inference should be drawn against the United States because of information inadmissible under the new shield law. The act also amends certain reporting provisions governing child pornography. Specifically, it allows federal authorities to report information they receive from the Center from Missing and Exploited Children (``CMEC'') to state and local police without a court order. In addition, the bill removes the restrictions under the Electronic Communications Privacy Act (ECPA) for reporting the contents of, and information pertaining to, a subscriber of stored electronic communications to the CMEC when a mandatory child porn report is filed with the CMEC pursuant to 42 U.S.C. Sec. 13032. This change may invite federal, state or local authorities to circumvent all subpoena and court order requirements under ECPA and allow them to obtain subscriber e-mails and information by triggering the initial report to the CMEC themselves. To the extent that these changes in ECPA may have that unintended effect, as this bill is considered in the Judiciary Committee and on the floor, we should consider mechanisms to guard against subverting the safeguards in ECPA from government officials going on fishing expeditions for stored electronic communications under the rubric of child porn investigations. This may include clarifying 42 U.S.C. Sec. 13032 that the initial tip triggering the report may not be generated by the government itself. A tip line to the CMEC is just that--a way for outsiders to report wrongdoing to the CMEC and the government, not for the government to generate a report to itself without following otherwise required lawful process. The bill provides for extraterritorial jurisdiction where a defendant induces a child to engage in sexually explicit conduct outside the United States for the purposes of producing child pornography which they intend to transport to the United States. The provision is crafted to require the intent of actual transport of the material into the United States, unlike the House bill which criminalizes even an intent to make such material ``accessible.'' Under that overly broad wording, any material posted on a web site internationally could be covered, whether or not it was ever intended that the material be downloaded in the United States. Finally, the bill provides also a new private right of action for the victims of child pornography. This provision has teeth, including injunctive relief and punitive damages that will help to put those who produce child pornography out of business for good. I commend Senator Hatch for his leadership on this provision. There are many people who do not agree with the Supreme Court's decision in Free Speech, but that will not erase it from the books. It is the law of the land, and resulted from seven Justices who had problems with the overbreadth of the last child pornography law passed by Congress. That alone should counsel a thoughtful approach this time around. Everyone wants to protect our children, but we need to do it with cases and laws that stick. It is tempting to rush to come up with a ``quick fix,'' but we owe our children more than a press conference on this matter. My initial review of the administration's proposal, now working its way through the House of Representatives, gives me serious concern. Already, the constitutional law experts and law professors with whom I have consulted on this matter have expressed a near consensus that large parts of that proposal will not withstand scrutiny under the first amendment after the Free Speech case. Indeed, the entire approach that the administration has taken in this matter is to reach as far as possible, not to hedge its bets, and simply to throw down the gauntlet on the steps of the Supreme Court, daring it to strike down the law yet again. That does not serve anyone's interest, least of all the real victims of child pornography. Criminal prosecution is not about making an ideological point--whether one agrees with it or not--that is for speeches and law review articles. Criminal prosecution should be about helping victims and punishing criminals with cases that do not get thrown out of court. Let me discuss a couple of the most problematic aspects of the Department's proposal. First, it sweepingly rejects any attempt to incorporate the Supreme Court's doctrine of ``obscenity'' into the definition of child pornography. Not even one provision takes that approach, which would at least ensure that some of the law was upheld. Instead, in its new 2256(8)(B) definition of ``child pornography,'' the Department simply changes the words ``appears to be'' in the current statute to ``appears virtually indistinguishable from'' in the new provision. The problem with that approach is this is the same argument that was tried by the Department in the Free Speech case and overwhelmingly lost. Although Justice O'Connor wrote that such an approach might satisfy her, she was not the deciding vote in the case-- indeed she was the seventh vote to strike down the statute. Second, the administration's proposal regarding the new crime for child pornography involving ``prepubescent'' children is also problematic under the Court's Free Speech case. Although the section is entitled ``Obscene visual depictions of young children'' the Department has assiduously avoided any ``obscenity'' requirement in the provision itself. I recognize that headlines and titles like ``prepubescent'' and ``obscene'' are popular, but one has to ask if the Department of Justice really believes that it can fool our federal judges with such linguistic sleight of hand when there is no obscenity requirement in the statute itself, only the title? Or perhaps it is only the public that is supposed to be fooled. In any event, as a legal matter, the provision contains absolutely no requirement that the material be judged as a whole for artistic, literary, or scientific value. That was a point that the Supreme Court repeatedly pounded home in the Free Speech case, yet it is simply ignored in this provision. This approach is especially frustrating because in the cases that the Department is likely to actually prosecute, it would be easy to meet the obscenity test. Under the Department's current approach, however, one can already predict the parade of legitimate movies and scientific or educational materials that those challenging the act will produce which meet the new definition. In addition, no affirmative defense is available under this new crime, so it cannot be saved from the Free Speech case on that basis either. There are other problematic provisions in the administration proposal, but I simply raise these two in order to make the point that the Department's proposal seems to be more concerned with making a public point than with making successful cases. If the Department's proposal becomes law, it will result in yet another round of court cases, followed by another round of cases being thrown out, followed by another round of legislation. America's children deserve better, and I think that, while we may disagree on some of the specifics, that Senator Hatch and I have made a good faith and bipartisan effort to come up with a law that will survive judicial scrutiny and protect them for years to come. For all of these reasons, I am pleased to introduce this legislation with Senator Hatch to help protect our nation's children. I hope that we can continue to work together to address the complex constitutional issues raised in this area. Mr. President, I ask unanimous consent that the letter from constitutional scholars to which I referred be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I yield 5 minutes to the distinguished Senator from Massachusetts.

Mr. LEAHY. Mr. President, I have told the Senator from Utah I will let him go last. I have no doubts about Professor Cassell's intelligence, his passion, and his commitment to how he thinks the law should read. I am sure he is a fine professor of law. I suspect he is an effective advocate. But viewed as a whole, his career has been one of a results-oriented advocate where he has worked forcefully to push the law to the far right. His one-man war on Miranda, his aggressive defense of our flawed system of capital punishment, even though 100 people have been released because of mistakes, and his work on other matters place him outside the mainstream of modern American jurisprudence. Even more troubling is his clear track record of manipulating sources and data to promote his ideological agenda. I have voted for 56 of the last 57 of the President's judicial nominees so far, and I will surely vote for many, many more, but on the basis of all I have seen in connection with the nomination of Paul Cassell, I cannot and will not vote in favor of this nomination. My judgment is that he is not likely to be the kind of fair and impartial judge that is essential to our Federal courts.

Mr. LEAHY. I ask for the yeas and nays.

Mr. LEAHY. I reserve the remainder of my time.

Mr. LEAHY. How much time remains?

Mr. LEAHY. Mr. President, with last week's votes, the number of Federal judges confirmed since the change in Senate majority 10 months ago now totals 56. Under Democratic leadership, the Senate has confirmed more judges in 10 months than were confirmed by the Republican-controlled Senate in the 1996 and 1997 sessions combined. Today's vote is on the nomination of Paul Cassell to the United States District Court for the District of Utah. After a great deal of thought, I will not be voting for this nominee today. Although this nomination is supported by my good friend from Utah, Senator Hatch, we disagree on his suitability to serve as a Federal judge. Senator Hatch has been an admirable and stalwart advocate for this nomination, and I certainly mean him no disrespect in voting against Professor Cassell. The constitutional responsibility to advise and consent to the President's selection of lifetime tenured judicial nominees should not be devalued to advise and rubber stamp. When the President sends us a nominee whose qualifications, judgment or background raise concerns or who has a misunderstanding of the appropriate role of a Federal judge, I intend to make my concerns known. This is one of those times. The nomination of Professor Paul Cassell raises several areas of serious concern to me. I think it is important to note that we have not engaged in a game of tit for tat for past Republican practices, nor have we delayed proceedings on this nomination, as so many nominations were delayed in past years of Republican control of the Senate. Instead, the Committee has seriously considered the nomination and worked hard to complete the Committee's record of information about this nominee. We have given the nominee an opportunity to be heard, promptly scheduled a Committee vote, and reported this nomination to the floor, although not unanimously. This is far more fairness, courtesy and orderly process than was provided so many nominees during prior years. Professor Cassell, in his nomination to the District Court, has been given a fair hearing and a fair process before the Committee and the Senate. I am proud of the work the Judiciary Committee has done since the change in the majority. I am proud of the way we have considered nominees fairly and expeditiously and the way we have been able to report to the Senate so many qualified, nonideological, consensus nominees. We also have held hearings for a number of controversial nominees, such as Professor Cassell. Controversial nominations take more time and effort, but we are making that effort and taking that time to be fair and thorough in our consideration of those nominations, as well. One measure of our fairness is the fact that we are proceeding even on controversial nominations such as this one. After thoroughly considering the record of this nominee, chosen for lifetime appointment by President Bush, I find that I cannot in good conscience vote in favor of Professor Cassell's confirmation. I have voted in favor of 56 other Bush judicial nominees, many of whom had been involved in partisan politics or ideological groups. I also voted in favor of the last person confirmed to the District Court in Utah, Judge Ted Stewart, a controversial nominee, and I did so even in the immediate aftermath of the Republicans' unprecedented party-line vote against Justice Ronnie White of Missouri, because I made a commitment to Senator Hatch. At Senator Hatch's request, the Senate Judiciary Committee gave Professor Cassell a hearing on his nomination in March and the Committee voted on his nomination in the beginning of May. That is fairer treatment than more than 50 of President Clinton's judicial nominees ever got, those who never got a hearing and never got a vote by the Committee when the Republicans were in charge. Many others waited for months or years for a vote on their nominations. Our Judiciary Committee, however, accorded Professor Cassell a hearing although his nomination is quite controversial and even though he received a partial ``not qualified'' rating from the ABA. Professor Cassell is a highly intelligent man, with an admirable passion for teaching and advocacy. But his written work, the record established at our hearing, and the answers he submitted to written questions raise grave doubts about his intellectual forthrightness and his capacity and willingness to put aside the extreme views he has long held. A judge who lacks the open-minded ability to hear both sides of a case cannot be depended on to administer justice impartially. I am concerned that he will be unable to set aside his personal views and that he has, in his work on legal issues, shown a strong tendency already to be motivated by the outcomes he seeks rather than by the facts. In 1992, Professor Cassell launched what became an 8-year campaign against Miranda v. Arizona, the Supreme Court's landmark ruling that police must provide certain warnings before questioning a suspect in custody. As part of this campaign, he generated a series of statistical studies to try to show that Miranda harms law enforcement. At the same time, he filed briefs in Miranda-related cases around the country seeking to convince courts to uphold a 1968 law--18 U.S.C. section 3501--that purported to overrule Miranda and make ``voluntariness'' the sole test for the admissibility of confessions in Federal criminal cases. Let me emphasize at the outset that I do not fault Professor Cassell for holding opinions with which I may disagree, or for the zealousness of his advocacy. While most criminal justice experts made their peace with Miranda decades ago, reasonable minds can certainly differ as to the wisdom and practicality of this venerable precedent. What troubles me about the nominee's campaign against Miranda is the manner in which he waged it. In article after article, Professor Cassell overstated the anti- Miranda position, citing his own flawed empirical studies as evidence that Miranda harms law enforcement. These one-sided attacks on Miranda drew unusually sharp criticism for their failure to meet standard scholarly norms. Academics who reviewed this nominee's research took him to task for being partisan and ideologically driven while masquerading as an objective scholar. They called his methods unsound, and accused him of manipulating data to reach his preferred result. Professor Cassell's work on Miranda was not restricted to, or even primarily aimed at, the world of academia. Based on his arguably flawed statistical studies, he made several empirical claims to the Senate Judiciary Committee and to various Federal courts, including the United States Supreme Court. Clearly, this raises the stakes from simple academic discourse. It is one thing to write something in a law review article--you can write whatever you want in a law review article. But it is an entirely different matter to represent something to a congressional committee or to the Supreme Court. A lawyer should have a great deal of confidence in any information that he presents to one of those bodies. At a minimum, it would be unethical for a lawyer to present information that he knew was unreliable. Professor Cassell's use of his own questionable data to try to influence legislators and judges on an issue of profound national importance raises serious questions about his judgment and integrity. I am also concerned by the partisan spin of Professor Cassell's campaign against Miranda. In his congressional testimony and writings, Professor Cassell was sharply critical of the Clinton Justice Department for avoiding litigation regarding the constitutionality of 18 U.S.C. section 3501. Among other things, he actually suggested the Department had deliberately and repeatedly misled the courts with respect to Miranda, and that its defense of Miranda was driven by politics and not by legal analysis. In a 1997 article entitled ``Another Law Janet Reno Doesn't Like,'' Professor Cassell took specific aim at the former Attorney General, accusing her of ``impeding the enforcement'' of a statute, and ``team[ing] up with defense lawyers to let armed felons and other criminals escape prosecution.'' Yet Professor Cassell himself had acknowledged in a 1995 article that prior Republican Administrations had also failed to defend section 3501. Although Republican Attorneys General like John Mitchell and Ed Meese were cognizant of 18 U.S.C. section 3501, Professor Cassell wrote, ``no serious efforts were undertaken . . . to secure any determination of the constitutionality of the law.'' In addition, ``[A] recommendation by the Justice Department's Office of Legal Policy in 1987 that an aggressive effort be made to test the law was never adopted as the result of opposition by other agencies within the Department.'' At the nomination hearing, I asked Professor Cassell to explain his criticism of Attorney General Reno regarding section 3501 in light of his earlier acknowledgment that prior Attorneys General had taken a similar position. At first he distanced himself from his comments regarding Attorneys General Mitchell and Meese by implying that the magazine in which they appeared had somehow misrepresented his words. He then suggested that because the quote appeared in a popular magazine, the National Journal, it should be given less credence than, say, a law review article. Recall that I am not referring to a situation in which Professor Cassell was quoted out of context. I am referring to an article that Professor Cassell co-wrote with a colleague. That is why his responses to my oral questions in the hearing seemed so slippery. I gave him another chance to explain his comment in answers to written questions. Finally, Professor Cassell grudgingly acknowledged, ``it does not appear that any Administration made aggressive efforts to invoke 3501.'' In sum, Professor Cassell's record of ultra-zealous, partisan advocacy regarding Miranda raises serious questions about his ability to serve as an unbiased decisionmaker. Another cause to which Professor Cassell has dedicated himself is the defense of the death penalty. Indeed, he has been called ``the academic world's foremost defender of capital punishment.'' At the hearing on his nomination, in response to questions from Senator Durbin, Professor Cassell asserted, ``my experience with the death penalty is rather limited.'' This statement confounds reason. Relying on the list of publications and presentations that Professor Cassell submitted to this committee, I count the following references to capital punishment, dating back to 1987: three substantial articles; four appearances before committees of the U.S. Congress, and one each before the Utah House and Senate; three submissions to popular publications; and three debates. One of those debates took place just 18 months ago: Professor Cassell squared off against Stephen Bright, one of the nation's preeminent defenders of those accused of capital crimes. These examples do not even include the large number of interviews he has given to the press on the topic. He has written and spoken widely on this fundamental matter, but now terms his experience with it ``limited.'' Despite mounting evidence that our death penalty system is riddled with error and desperately in need of reform, Professor Cassell has doggedly maintained that there is no more accurate sanction in the world than capital punishment as it is practiced in the United States, and that the chance of an innocent being put to death is an ``urban legend.'' He supports this position by asserting that there is no definitive proof that an innocent person has been executed in the past 50 years despite the shameful fact that since 1973, 100 condemned persons have had their convictions vacated by exonerating evidence. Professor Cassell has been highly critical of studies that show significant rates of error in the imposition of capital punishment. More than once, he has attacked a study showing errors in capital cases by declaring that the author is an avowed opponent of the death penalty, thereby attempting to undermine the credibility of the study's findings. He has also engaged in vitriolic and occasionally personal attacks against those with whom he disagrees on this issue, often skewing details in his own favor and publishing half-truths. His actions on this matter likewise call into question his ability to rule fairly on this most important legal issue. Professor Cassell's views on habeas corpus tell a similar story. In April 1993, Professor Cassell testified before the Judiciary Committee in opposition to a bill that would have allowed death row inmates to raise new claims of actual innocence. The bill was a response to the Supreme Court's decision in Herrera v. Collins, which upheld a Texas rule barring courts from considering new evidence of innocence that is uncovered more than 30 days after conviction. In his testimony, Professor Cassell argued that an innocent defendant, ``will be fully aware of the circumstances surrounding his innocence and can present them at trial.'' He further asserted that evidence that becomes available after conviction is, ``almost invariably unreliable.'' It is troubling to imagine a district court judge with such biases, especially given the strong likelihood that he would be called upon to review claims of innocence based on newly discovered evidence. Professor Cassell has also advocated limiting habeas review of claimed violations of Batson v. Kentucky, which prohibits the exercise of peremptory challenges on the basis of race or gender. In a 1992 law review article, he argued that Batson violations should be treated as harmless error, meaning that a new trial would never be an appropriate remedy for a Batson violation discovered for the first time on appeal. As an alternative remedy, he proposed notifying excluded jurors that had been unfairly excluded from the previous trial and inviting them to join the panel from which jurors are selected in a subsequent case. But such a ``remedy'' would do little to cure the structural flaw in the defendant's trial. Notably, although the Supreme Court has not ruled whether Batson violations are subject to harmless error analysis, the consensus among the Courts of Appeals is that they are not. I am aware of Professor Cassell's work with regard to crime victims' rights. We still have more work to do to ensure that our criminal justice system is one that respects the rights and dignity of crime victims, rather than one that presents additional ordeals for those already victimized. Professor Cassell helped draft the Utah victims rights amendment in the mid-1990s. He also worked on, and testified in support of, some of the more than 60 versions of a Federal constitutional amendment that has been proposed, in recent Congresses, by Senators Kyl and Feinstein. It is no secret that, as a longtime advocate of victims' rights, I believe it is preferable to broaden these rights by statute than by amending the Constitution. I do not, however, fault Professor Cassell, or anyone else, for supporting this approach. The treatment of crime victims certainly is of central importance to a civilized society. The question is not whether we should help victims, but how. I continue to believe that crime victims legislation is the preferable course to amending the Constitution. That being said, Professor Cassell's work on behalf of this cause has occasionally exceeded the bounds of fair advocacy. For example, when testifying before this Committee in support of the proposed constitutional amendment, he has repeatedly cited the Victims Rights Clarification Act of 1997--VRCA--as evidence that statutes are not adequate for protecting crime victims, and that nothing but a constitutional amendment will do. While he has the right to favor an amendment to the constitution, Professor Cassell grossly distorted the impact of the VRCA. Congress passed the VRCA in response to a pretrial order by the trial judge in the Timothy McVeigh case--Judge Matsch. The order excluded from the trial any victim who wanted to testify at the sentencing hearing. The VRCA clarified that a court may not prohibit a victim from testifying at a sentencing hearing solely because the victim has witnessed the trial, although a judge may exclude a victim from testifying at a sentencing hearing if the judge found--independent of the fact that the victim witnessed the trial--that the testimony would create unfair prejudice. One week after President Clinton signed the VRCA, Judge Matsch reversed his pretrial order and permitted victims to watch the trial, even if they were potential penalty phase witnesses. In other words, Judge Matsch did what the statute told him to do. Beth Wilkinson, one of the prosecutors in the case, testified before this Committee that in the end, not one victim was prevented from testifying at the sentencing hearings for McVeigh on the ground that he or she had observed part of the trial. Moreover--and perhaps more importantly--with all issues regarding the VRCA resolved during the McVeigh case, there were no problems implementing the statute during the Terry Nichols case-- victims were free to watch the trial and testify at the penalty phase hearing. Ms. Wilkinson characterized the VRCA as a textbook example of how statutes can and do work to protect victims. When the Judiciary Committee considered the proposed constitutional amendment two years ago, many of us had serious concerns about that approach. We believed it possible to give crime victims strong and enforceable rights, and assure them a greater voice in the criminal justice system, without cutting back on the fundamental rights of defendants. Together with the Justice Department, we pushed for the addition of language that would expressly preserve existing rights of the accused as guaranteed by the Constitution. Professor Cassell steadfastly opposed the addition of such language, claiming that it, ``would have perpetuated the very problem we were trying to solve.'' This suggests that the ``problem'' as he saw it, was not that the judicial system mistreats victims, but that it is unduly deferential to the rights of defendants. Professor Cassell now claims that the problem with ``adding specific language about defendant's rights is that it creates . . . the misimpression that victims' rights and defendants' rights actually collide.'' This is a convenient ``spin'' on Professor Cassell's past statements, coming at a time when those remarks have come under scrutiny, and is clearly inconsistent with ``the problem'' he was ``trying to solve'' 2 years ago. Once again, it raises the question whether Professor Cassell, if confirmed, would exercise judgment fairly and impartially or would do so in a way that would seek to further his own personal views. I have no doubts about Professor Cassell's intelligence and his passion and commitment to how he thinks the law should read. I am sure that he is a fine professor of law. I suspect he may be an effective advocate. But when viewed as a whole, his career has been one of a results-oriented advocate, who has worked forcefully to push the law to the far right. His one-man war on Miranda, his aggressive defense of our flawed system of capital punishment, and his work on other matters place him outside the mainstream of modern American jurisprudence. Even more troubling is his clear track record of manipulating sources and data to promote his ideological agenda. I have voted for 56 of the President's judicial nominees so far, and I will surely vote for many, many more, but on the basis of all I have seen in connection with the nomination of Paul Cassell, I cannot and will not vote in favor of this nomination. My judgment is that he is not likely to be the kind of fair and impartial judge that is essential to our Federal courts. Mr. President, how much time remains for the Senator from Vermont?

Mr. LEAHY. Mr. President, how much time is available to the Senator from Utah and the Senator from Vermont?

Mr. LEAHY. Mr. President, I yield myself 1 minute. I know Professor Cassell is a friend of the distinguished senior Senator from Utah, who has urged his confirmation. I do not know whether, as a courtesy, the senior Senator wanted to go first.

Mr. LEAHY

Mr. LEAHY. Mr. President, I move to reconsider the vote.

Mr. LEAHY

Mr. LEAHY. I have no objection, provided we then still keep the period of time prior to the next vote the same amount of time and the vote will have to slip 5 minutes.

Mr. LEAHY

Mr. LEAHY. Mr. President, as one of seven conferees representing the Senate, I rise today to speak in support of the conference report and urge my colleagues to vote in support of this bill. This farm bill will assist America's family farmers, expand economic opportunity in rural communities, strengthen programs to protect the environment and improve the nutritional safety net for low-income Americans. But one aspect of this new bill that makes it historic is the fact that, for the first time in a long, long, time, dairy farmers across our nation will have an adequate safety net that they can count to provide income support should prices remain low. The national dairy program in this bill represents a carefully crafted compromise between many competing interests. First, it is a compromise among those regions of the country who support dairy compacts and those that don't. It's no secret that I would have preferred an extension of the Northeast Interstate Dairy Compact. It cost taxpayers nothing. After Members of Congress from other regions and the opposition of President Bush and Vice President Cheney blocked these efforts, the Vermont Congressional Delegation--against great odds, but joined by allies from across the nation--urged creation of a national dairy program as a compromise. What we came up with is a new national dairy program that will provide cash assistance to dairy farmers comparable to what dairy farmers from Vermont and other New England States received under the Northeast Interstate Dairy Compact. There should be no doubt that what the conferees intended was for USDA to implement this program in a manner as similar to the compact as possible. Indeed, the formula for determining the monthly payments is nearly identical to the formula used under the Compact--it even is based on the price of Class I fluid milk in Boston. The Statement of Managers summarizes the provision by noting that ``Under this program, participating dairy producers will receive monthly payments equal to 45 percent of the difference between $16.94 and the price per hundredweight of Class I fluid milk in Boston under the applicable federal milk marketing order. No payments will be made for months during which the fluid milk price in Boston is $16.94 or higher.'' Obviously, no negative assistance or negative ``payments'' can be paid to producers because that would not represent assistance or payments. It is a very straightforward program. My staff met with several key USDA officials with significant responsibilities regarding the dairy programs, and with Keith Collins the USDA Chief Economist, to ensure that the language and time frames would work. I appreciate that the Office of Congressional Relations, USDA, helped set up that meeting. We also requested more than one analysis from FAPRI showing how this new program would pay out to farmers, and to understand its possible impacts on production of milk by dairy farmers. Some of my colleagues have asked how this formula was developed. After Congress consented to the Northeast Interstate Dairy Compact in 1996, the Northeast Interstate Compact Commission decided to support the price of Class I fluid milk sold into the six New England states covered by the Compact (Maine, Vermont, Massachusetts, Rhode Island, Connecticut, New Hampshire) at a level that at times would be above minimum established under the prevailing federal milk marketing order in the Northeast. The Compact Commission took testimony and held hearings and decided to establish a floor of $16.94 per hundred weight under the Class I price. The floor was based on the price in Boston, so the floor for milk marketed outside of Boston but within the Compact region would vary, based on the local differential. The Northeast Interstate Dairy Compact only regulated sales of Class I fluid milk--which represents only about 45 percent of the total milk produced in New England. The percentage varies on a monthly basis. The rest of New England's milk is used to make other fine dairy products, such as Ben and Jerry's Ice Cream, or Cabot cheese. In other words, under the Compact, producers received payments on only about 45 percent of their total milk production. The conferees tried to emulate this formula as closely as possible, while making sure it would work on a national basis. Like the compact, whenever the federal minimum price for fluid milk in Boston falls below $16.94 per hundred weight, participating dairy farmers will receive a payment. Like the Compact, payments will be made on only 45 percent of the milk marketed by a producer--a rough approximation of the Class I utilization rate in the Northeast that is fixed, rather than varying on a monthly basis. The conferees didn't just try to emulate the payment formula established under the Northeast Interstate Dairy Compact, they also emulated other elements of the Compact. For instance, the conference report requires the Secretary to make payments on a monthly basis not later than 60 days after the end of each month for which a payment is made. Timing of these payments is critical the Conferees wanted these counter-cyclical payments to be made when they're needed the most which is when the milk is marketed. Under the time line set forth in the conference report, producers should begin receiving payments under this new national dairy program early this fall. USDA is required to begin signing up farmers to participate in the program not later than 60 days after the new farm bill is signed into law. As under the compact, all producers will receive payments on a monthly basis: USDA is required to pay producers not later than 60 days after the end of each month for which a payment is made. In addition to representing a compromise among those supporting dairy compacts and those opposed to compacts, the national dairy program represents a compromise among those who wanted a counter-cyclical income support program for dairy farmers and those who wanted no such program. Much to my chagrin, the program is authorized only through September 30, 2005, and payments under the program are capped. Now, I know others also lament the fact that there is a cap on eligible production. While some of us believe the cap is too low, others complain that the cap is too high. But this is a compromise that will ensure that producers across the country benefit. Some of my colleagues have suggested that payments from this program will stimulate additional production and drive down prices. I don't believe this will be the case. Here's why: First, this program is not permanent, it is temporary--it ends in 2005. Producers are not likely to make long-term investments to expand production based on a program that ends before they have had a chance to recoup their fixed costs. Second, in the short term, there are practical limits to how quickly dairy farmers can expand production. Currently, there is a shortage of animals that would limit any production increases. Third, our experience with the Northeast Interstate Dairy Compact has shown--as the General Accounting Office Reports have documented--that payments comparable to these--at least in the Northeast--have not stimulated massive expansions. In fact, last year, producers in the Northeast expanded at a rate below the national average. But nevertheless, the Conferees agreed to cap the quantity of milk on which a producer can receive payments each fiscal year. While it is clear from the text of the law, and it was clearly the intent of the drafters, I want to point out that any milk production marketed in months when no payment is made to farmers is not to be counted toward the 2.4 million pound cap. In other words, the cap only applies to the volume of milk produced in months which generated payments by USDA under section 1502, not on all the milk produced during the year. This is set forth in subsection (d) where it states that amounts to be counted toward the 2.4 million pound limit are counted ``during the months of the applicable fiscal year for which the producers receive payments . . .'' Related to this point is another issue concerning the cap. Note that if all pounds are counted when a USDA payment is made, larger family farms could hit their cap in the first few months of any year when payment rates per hundredweight might be lower. But it would not make good policy sense to see a large family farm get a very small payment, for example, $.10 per cwt. in the fall and then exceed the cap and get no payment when payments could reach $1.00 per cwt. in the spring. Since this national program was intended to be counter cyclical, farmers should be allowed to pick which months they want to submit for payments, for months when a payment is due. The easiest way to implement this intent, would be that a farmer must not only market the milk but the farmer or agent must also report it to USDA. If a farmer chooses not to report his or her production in a month, the farmer gets no payment that month but also his or her production does not count against his or her cap. This maximizes the opportunity this program offers for a strong counter cyclical protection. Under this approach, USDA would then keep track of the first ``countable'' 2.4 million pounds of production each year, and then reduce the last check or eliminate checks for the remainder of the year. This would represent a very simple way for USDA to implement this provision and meet the 60-day deadline for ``monthly'' prospective payments set forth in subsection (e). This approach will allow a larger farm operation to use the program when it is most needed. However, keep in mind that regardless which months are selected for payment, the cap of 2.4 million pounds per fiscal year still applies. This is the fairest way to be responsive to larger family farms under a tight cap in a program which was designed to be counter cyclical. This would not be unprecedented: Grain and oilseed producers have this sort of flexibility--they are able to lock in loan deficiency payments and marketing loan gains at time of their choosing--at any point before they lose beneficial interest in their crops. Some producers even travel to neighboring counties to lock in higher LDPs. Most are successful in locking in LDPs during harvest-time lows, even though the season average price at which they market their crop generally is significantly higher. USDA should provide similar flexibility to dairy producers, allowing them to elect when to receive payments. I am concerned about language which the other body insisted upon toward then end of the process. I am concerned about larger family operations where several family members have joined together for efficiency but the farm is still supporting more than one family. USDA should be open to viewing those farms as true multiple operations under this program. For other programs, and in other areas such as the South, USDA permits these multiple operations. USDA should look at the totality of the circumstances in determining whether producers should be treated as having single or multiple operations. Farmers should not be penalized for working together to enhance efficiency. That was the whole point behind the definition of producer found in 1502(a)(5). That definition would have automatically included husbands and wives, fathers or mothers and adult children, adult siblings, and the like, working on the same farm. In most cases, each of the above would have each been entitled to application of a separate 2.4 million pound cap because they would naturally share in the risk of producing milk and would likely make significant contributions to the dairy farming operation, as required by section 1502(a)(5). For example, for a spouse living on the farm it would be hard to imagine a situation where the spouse would not ``share in the risk'' since part of the household income would come from milk sales. Also, in most situations a spouse would be making contributions of labor or management or some other valuable contribution. There is nothing in USDA Notice LD-505, dated March 14, 2001, regarding the definition of dairy operation which would preclude the family members mentioned above from being in, or setting up, separate operations. Since the intent of section 1502(a)(5) was to make the farm bill friendly to family operations the implementation of the ``diary operation'' definition should not undercut that pro-family approach. On page 4 of that Notice, ``dairy operation'' is defined as ``any person or group of persons who as a single unit produce and market milk commercially produced from cows and whose production and facilities are located in the United States.'' There is no reason to suspect that USDA intended that this should be interpreted as inherently anti-family. Many statements about this farm bill talk about its focus on the family farm. In this regard, I would encourage the Farm Services Agency, USDA, to work with other USDA agencies and milk handlers and cooperatives to lessen the administrative burden on farmers. The intent is to provide a countercyclical safety net when needed most--and USDA should be aware of that goal when they are writing regulations to the extent regulations are needed. While the text makes this very clear, it should be noted that this program is not a straight subsidy. It is a targeted safety net program to take the bottom out of crushingly low prices for small and medium farms that also provide so many benefits to rural communities and the environment even beyond the milk they produce. Note that fresh drinking milk (Class I) prices fell $.33 per gallon throughout the Federal Order system--which governs sales of 70 percent of all U.S. milk--on December 1, 2001 because of fewer consumers going out to eat after September 11, and other factors. Of course, the focus of this national program and the focus of the formula which is used to compute the benefits is on ``Class I milk.'' Payments are based on $16.94 minus ``the Class I milk price per hundredweight in Boston.'' This is based, of course, on the formula used in calculating benefits under the Northeast Interstate Dairy Compact Commission. A significant feature of the new national dairy program is that it will be retroactive, covering market losses due to low prices since Dec. 1, 2001. On that date, there was a devastating drop in the price for Class I fluid milk. Producers should receive these retroactive payments at the same time they receive their first payments early this fall. This ``transition rule'' found in subsection (h), provides that those payments are ``[i]n addition to any payment that is otherwise available under this section . . .'' As I pointed out more than once during discussions, the goal of this subsection is to address the steep drop in dairy prices to farmers starting in December, 2001. The benefits of the Northeast Interstate Dairy Compact ended on October 1, 2001. The adverse impact of that termination started hurting New England farmers during that crash in milk prices in December. The goal of subsection (h) for those farmers was to hold them harmless regarding the loss of the Congressional consent to the Compact. A second goal, since this now is a national program, is to compensate all dairy farmers for their market losses--not just New England farmers--since December 1, 2001. Of course, that is a different goal than the prospective ``monthly'' program which provides monthly payments, for future months when they are due, and operates until September 30, 2005. That prospective program has a 2.4 million pound cap as set forth in (d). Indeed, (d)(2) ``Limitation,'' states that, ``The payment quantity for all producers on a single dairy operation during the months of the applicable fiscal year for which the producers receive payments under subsection (b) shall not exceed 2,400,000 pounds.'' In addition, (d)(2) sets forth a limitation regarding each dairy operation and (d)(3) gives the Secretary authority to issue rules to ensure that producers do not reconstitute dairy operations for the sole purpose of receiving additional payments under this section. This ``limitations'' language was inserted out of a concern that an uncapped program would lead to significant increases in production of milk. Also, there was a concern that farmers would reorganize in the future just to get higher payments under the national program. These concerns do not apply to the benefits paid out under subsection (h) because farmers would need time machines to go back in the past and increase their production or to change their legal structure retrospectively. Indeed, the amount of production covered by (h) is the amount of ``eligible production'' as defined in section 1502(a)(2). This approach to those dairy market losses in a sense makes up for the fact that programs for others farmers, non-dairy farmers, continued to exist after September 30, 2001, and were to be continued until the 1996 farm bill was to end on September 30, 2002. Thus, non-dairy farmers continued to receive some types of countercyclical, or other benefits, from the existing provisions of the 1996 farm bill. Dairy farmers did not enjoy those protections except for the price support program scheduled to end soon. Thus, subsection (h) gives dairy farmers some relief from the huge drop in milk prices which they have suffered since December 1, 2001. In order to allow these farmers to pay off their debts, pay their bills, and keep in the dairy farming business, it is hoped that USDA will quickly compute the ``transition'' payment to be made on the ``quantity of eligible production of the producer marketed during the period beginning on December 1, 2001, and ending on the last day of the month preceding the month the producers on the dairy farm entered into the contract [with USDA].'' These payments should be made with the first ``monthly'' prospective checks to be issued under subsection (b). Although I am pleased with the dairy provisions, I want to express my disappointment in the outcome of the downed animal provision in this bill. The intent of the Senate Agriculture Committee was to end the unnecessary suffering of downed livestock, animals that are not even healthy for us to eat, by calling for their humane euthanasia when they are brought to intermediate markets. The provision was included in both the House and Senate versions of the bill, but was changed substantially in conference. I want to make it clear that I am unhappy with the changes made and that I am committed to passing the provision, as it was originally written, either through this committee or on another vehicle. I understand that Chairman Harkin is interested in revisiting this issue as well and I hope that he will join me in completing the work that needs to be done for downed animals. I request that the Secretary of Agriculture complete the study required in this bill within 6 months and I ask that she include, within the conclusions of the study, exactly how she plans to make every step from the farm through the slaughterhouse a humane trip for nonambulatory animals. I hope she will find, as 165 of my colleagues in the House and Senate have, that the only humane action to take is euthanasia at the intermediate market. I also want to make a few comments about the conservation programs in the new farm bill. Although I am disappointed we were unable to sustain the level of funding for conservation that was included in the Senate- passed bill, I am pleased we were able to increase the level of conservation funding by roughly 80 percent. The conference report includes a provision to increase funding for the successful Agriculture Management Assistance program created in the Agriculture Risk Protection Act of 2001. This program targets 15 states that have been traditionally underserved by crop insurance programs, including Connecticut, Delaware, Maryland, Massachusetts, Maine, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, and Wyoming. This program was also expanded in the final House-Senate bill to include aid for all organic agriculture activities and to help producers develop new marketing opportunities, including opportunities for value-added processing. I expect this program to be administered in a very similar manner to the successful way in which it has been run over the past two years, with minor changes to accommodate the expansion of eligible activities. The program has been highly successful for the eligible states and I expect that it will continue to address the conservation and other critical needs of those states. Also, during debate over the Senate version of the farm bill, Senator Harkin included in the bill, at my request, a provision establishing a $12 million minimum ``floor'' on conservation payments per State to address concerns I and many of my colleagues raised about previous farm bills, which tended to allocate the bulk of their funds to a minority of producers in single regions of the country. With this language, I felt the Congress could truly show its concern that all states, in all regions of the country, receive a minimum level of much-needed conservation assistance to protect farms, community watersheds, open space, and wildlife habitat. The language was clear in its intent to ensure each state received at least $12 million in conservation assistance by April 1 of each fiscal year if it had qualified applications for that amount of funds. The language also ensured that funds unused by a state would be returned to USDA and reallocated to other States, not the General Treasury. This ``regional equity'' language was altered slightly in the final bill to minimize paperwork at USDA and maximize the ability of the Secretary of Agriculture while continuing to ensure at least $12 million be made available to all states with eligible applications. The Secretary may do this however it is most effective: for example, with a reserve fund set aside to ensure all states receive needed funds. As written in the conference report, the $12 million includes applications for all programs under Subtitle D of Title XII of the Food Security Act of 1985, 16 U.S.C. 3830 et seq., excluding the Conservation Reserve Program, CRP, Wetlands Reserve Program, WRP, and Conservation Security Program, CSP. Before April 1 of each fiscal year, applications from producers in States that has not yet received at least $12 million in conservation funding would have priority for funding for all conservation programs except CRP, WRP, and CSP. With respect to CRP, WRP, and CSP, producers in these under-served states would compete for funds without specific priority--on an equal footing with all other national applications. Because the Agriculture Management Assistance conservation program is not under Subtitle D, for eligible states, this program also effectively would not count toward the $12 million total, and would continue to be administered as it has been, successfully, since its creation in the Agriculture Risk Protection Act of 2001. There are a number of other conservation programs that also are very important to Vermont and other New England States. I especially am pleased that funding for the farmland protection program--which began as a pilot program in Vermont--was increased to nearly $1 billion. Never before has FPP received such levels of mandatory funding. In addition, the conference report authorizes a new ``farm viability'' program. It was the conferees intent that this program be modeled after the very successful Massachusetts Farm Viability Program for purposes of farmland protection. The farm viability program will allow USDA to make grants--through eligible States or private land trust--to producers to help them assess the long-term viability of their farming operation. Using these funds, producers can hire experts to help them develop and implement a plan to improve their long-term business prospects. This might entail shifting to a different mix of crops or livestock, engaging in direct marketing through farmers markets or setting up a road-side stand, or even taking advantage of opportunities to profit from agri-tourism. This program will help the limited funding for farmland protection go further. Many farm families enroll land in the farmland protection program in order to be able to pass along the family farm to their children. They want to know, before enrolling in the program, whether their children will be able to make a living on the farm. The farm viability program will help them determine this, and will help others who already have enrolled their land in FPP to continue to use their land as working lands. Of course, the farm bill isn't just about farmers. I particularly am proud of the nutrition title of this year's farm bill. It will significantly strengthen nutrition assistance in this country. Food stamp benefits have been improved and simplified, funding for emergency food providers has been increased and numerous other advancements-- notably funding for seniors' farmer's markets are included in this title. I am proud that the nutrition title of this farm bill contains so many important simplifications in the program. All of the conferees, from both sides of the aisle and both chambers, were united in our desire to do what is right for working poor families and others that need help assuring that their families receive a nutritionally adequate diet. I also am grateful for all of USDA's help and support throughout the conference. Time and again, Undersecretary Bost and his staff gave us invaluable perspective. They helped us understand where we needed to act and where we could count on them to fix a problem. In this context, I would like to highlight a few of the most important of the provisions we adopted. One of the provisions that excited all of us the most was transitional food stamps for families leaving cash assistance. Although we gave states broad discretion in this area, we hope they will apply this option to the maximum number of households. Only those that have been found guilty of wilful misconduct of one kind or another are ineligible for transitional food stamps. The many households leaving TANF for procedural reasons, such as failure to keep an appointment, would remain eligible. Many families that decide to go it alone without further cash assistance simply stop communicating with the welfare office. The family may be unable to get through to an eligibility worker to inform her or him of its decision to withdraw from cash assistance or may not see the reason. Some of these families may have low-wage jobs. Others may be hoping to piece together various means of support to get by until they find work. Either way, these families need the help that transitional food stamps can offer. We urge states to provide it. Once a family begins to receive transitional food stamps, we intend for those food stamps to continue for the full five-month transitional period. Even if the state takes the option to act on changes it learns about through other programs, it should not take any adverse action against the household's food stamps unless the state has definite information that the household is ineligible. Requiring households to contact the food stamp office or provide verification during the transitional benefit period would defeat the entire purpose of granting households a period of repose. The other side of this, of course, is that since states would not be expected or allowed to take the usual measures to review the accuracy of the household's benefit level during the period, the state would not be held accountable through the quality control system for any errors in that household's benefits. As long as the state correctly adjusted the household's benefits from the last month it was receiving cash assistance, the state would not be subject to a finding of error during any of the months of the transitional benefit period even if the benefit amount in that prior month turned out to be in error. The error in the prior month could result in an error only if the household's case was sampled in that prior month. In this connection, a state should be free to designate certain types of changes, such as cost of living increases in Social Security benefits or the addition of new members to a household, that it would act upon if it received word from another program and other kinds of changes it would disregard. As usual, the QC system would only measure how well the state carried out the tasks it had elected in its plan to perform. Thus, a state that had elected to act only on new members added to a family might be liable for failing to provide food stamps to a new infant that was being added to the family's Medicaid coverage but would not be liable for processing changes in wages. In no event, however, should the household be required to provide information or verification or threatened with termination of its benefits. The simplified definitions of income and resources also should simplify the program in important ways. We repeatedly added items to the list of things that states could not exclude at USDA's suggestion so that the Department would not have to add to that list by regulation. We were pleased that the final provisions met with the Department's satisfaction and that states can move forward in reliance on the list in the statute. Only under extraordinary circumstances do we expect USDA would need to add to either list. Although cash in bank accounts that was readily accessible to the household would still count as a resource, a state could exclude the interest on those bank accounts from income calculations. This relatively tiny source of income is easy to forget and difficult to track. Excluding it is exactly the kind of simplification state agencies and households need as we move the food stamp program away from its old focus on serving welfare recipients to its new emphasis on the working poor and other diverse low-income populations. States could, however, exclude accounts that households could not readily access, such as funds that states' TANF programs designate only to be spent for education, home or car purchases, or other specific purposes. States also could exclude any designated retirement savings, including individual retirement accounts, to the extent current regulations do not already exclude those items. Jointly-held property also could be excluded if the household could incur legal liability by withdrawing the funds. Eligibility workers have neither the time nor the expertise to sort out potentially complicated ownership interests. One of the simplifications that we expect will help states and households the most is the change to the standard utility allowance or SUA. In a cold state such as mine, heating and other utility bills inevitably affect low-income families' ability to purchase a nutritionally adequate diet. We believe we have crafted a provision that simplifies the treatment of utility expenses without reducing benefits for any significant number of households. The substantial cost estimate for this provision reflects that assumption. Achieving our goals obviously depends on states having and maintaining adequate SUAs. Although the shift to a mandatory SUA should not increase federal costs except in the two respects addressed in this amendment, neither should it save money at low-income households' expense. States that shift from an optional SUA to a mandatory one should be able to increase it somewhat in the transition without increasing federal costs. Perhaps even more importantly, states need to faithfully observe USDA's regulation requiring annual reviews of the SUA's adequacy. In the past, some states let their SUAs stagnate for many years at a time. We were pleased to hear that USDA has been moving recently to achieve greater compliance with the updating requirement and that it intends to continue to do so. We know that many states lack the technical capacity to conduct detailed economic surveys to determine just what the optimal SUA might be. USDA, however, has allowed a state simply to compute the increase in utility costs from the time the state last changed its SUA and apply that percentage to increase the SUA. We trust that this sensible approach will continue and will be made available to all states. At the same time we simplified in many respects, we did not intend to create new complexities. A question has arisen about the standard deduction provision of our bill. Obviously, 8.31 percent of the net income limit will not be an even dollar number since the net income limit figure is expressed in an even number of dollars. We do not intend to require state agencies to process standard deductions expressed in pennies. USDA could not give households a standard deduction that is less than 8.31 percent of the net income eligibility limit, but it clearly has authority to round that number up to the next largest whole dollar. This has not presented a problem in the past and see no reason why it would now. We set up a new system of bonuses for high-performing states. We in no way intend to pre-judge what system USDA will select to give out those funds. USDA could rely on statistical measurements, as it does now, but it also could allow states to apply for bonuses in particular categories. Allowing states to compete for recognition and bonus awards for the most innovative means of correcting problems in program administration could provide useful lessons that could benefit other states. A couple of ideas were advanced that we did not adopt. We rejected an Administration proposal to cut back on categorical eligibility for food stamps. Current regulations give states broad flexibility to determine what items receiving TANF or MOE funding should be considered benefits that trigger categorical eligibility. USDA approval is required only in limited, clearly delineated circumstances. The Department argued that this policy is too broad, but we were not persuaded. The Department is free, of course, to renew its proposal with us if it feels strongly about this issue. It should not, however, act unilaterally to restrict flexibility states have under current law and regulations. Also, we made no change in the procedures for approving state plans to certify elderly and disabled households for food stamps based on information in the Social Security Administration's files. These would still go through the research waiver process, although as states and the Department gain more experience with these projects, we anticipate approval should become much easier. The waiver process is important, however, to ensure that we are not shortchanging households with high housing or medical costs. Also, the Department needs to make sure that eligible people are not losing out on food stamps during the period their applications for disability benefits are pending with SSA. All in all, I believe that this package of simplifications and benefit expansions represent a significant step forward on the path the program has been traveling over the last several years. This package should strengthen the food stamp program's role as a work support and as a nutrition safety net for those going through difficult times. It deserves our full and enthusiastic support. I would like to take this opportunity to comment more extensively on one of the most important aspects of the nutrition title, the restoration of benefits to legal immigrants. As my colleagues know, I remain deeply opposed to the benefit cuts to legal immigrants enacted as a part of the 1996 welfare law. I have worked ever since the passage of that law to ease the eligibility restrictions on legal immigrants in a wide array of programs. Immigrants are admitted into this country as legal permanent residents with the assumption that they will be a part of our communities, work and pay taxes, and serve at our nation's defense. It is unjust to exclude these hardworking individuals from access to critical work support programs and the safety net if they fall on hard times. The legal immigrant restrictions in the food stamp program were the harshest of all of major federal benefit programs, causing more than one million legal immigrants to lose eligibility. Unfortunately, immigrants have not been the only group affected by the food stamp restrictions. Over 85 percent of immigrant families are households that include at least one citizen child. From 1994 to 1998, 1.2 million immigrants left the program, mostly due to the eligibility restrictions. Over the same period, 1 million citizen children of immigrant parents also left the program, representing a 74 percent decline for this group. Immigrant advocates and emergency food providers believe that these legal immigrant parents are confused about their children's eligibility and that the parents believe if their children receive food stamps that it could have a negative impact on immigrant family members' immigration status. Children of immigrants now make up a significant share of the childhood poverty population. Nationally, one in four children in poverty have immigrant parents. In order to continue to make meaningful inroads in reducing child poverty, it is key to find new ways to serve more effectively the children of immigrants. Of course, the best way to resolve this problem would be to restore eligibility to all legal immigrants. Unfortunately, we did not have the resources in this farm bill to provide for such a restoration. Nonetheless, we have taken major strides to significantly ameliorate the restrictive rules. The final bill is based largely upon the immigrant restorations in the Senate-passed farm bill, which were expanded upon with overwhelming bipartisan support on the Senate floor. We decided that if the eligibility for legal immigrant children is restored the food stamp eligibility rules for children will become less complex and easier to explain. This should encourage immigrant parents to apply for benefits on behalf of their children. If states, the anti- hunger community and the immigrant community can inform families that all poor children are eligible for food stamps, there will be a much greater chance of reaching those families confused about the current rules. Another significant component of the immigrant provision is that it restores benefits to qualified legal immigrant adults who have lived in the U.S. for 5 or more years with that status. Of course, there are many types of qualified immigrant statuses. It will not matter if the immigrant held one qualified status such as asylee and then changed their status to something else such as a legal permanent resident. The five year clock begins from the time the immigrant first held a qualified status. The adult restoration provides basic conformity in food stamp eligibility rules to those already in place in Medicaid, SCHIP and TANF. It is our hope that these new food stamp rules will make it easier for states to administer and for immigrants to understand. Finally, the legislation would allow legal immigrants receiving benefits under specified disability-based programs to qualify for food stamps. Children will no longer be subject to sponsor deeming rules, although sponsor immigrant adults will continue to be subject to these rules. As a part of our deliberations, we reviewed USDA's recent regulations on sponsor deeming and found them to be an appropriate policy consistent with our understanding of how deeming should operate in the food stamp program--a balance of ensuring that needy immigrants are able to access food assistance while not providing assistance to immigrants who are being supported by their sponsors. We also appreciate that USDA was sensitive to not restricting food assistance to immigrants whose sponsors refuse to cooperate by providing requested paperwork. We do not expect USDA to make any changes in this area. When we were evaluating how to design these provisions, we placed great weight on the cost estimates that CBO provided for this package, as well as the price tag the Administration gave its own proposals in its FY2003 budget. Neither estimate assumed that any sponsors had to repay the federal government as a result of immigrants receiving food stamps. Under the new affidavits of support now in place, most sponsors are likely to be a very close family member of the immigrant's. This means that they are likely to live together and be a part of the same family unit or food stamp household. In all the years that I have worked on the food stamp program, Congress has never required food stamp households to repay benefits for which they were eligible. Sponsor liability should not and does not circumvent that principle. We do not intend for a low-income sponsor to incur a debt for food stamps that he or she receives along with the sponsored immigrants. Of course, we have no intention of allowing affluent sponsors to abdicate their responsibilities. But low-income sponsors who are a part of the food stamp household or family unit should not be billed for signing up other family members for food stamps. Consider a step-father who sponsored his new wife and step-child into the country some years ago. If he loses his job and he and his new family become eligible for food stamps, we want them to avail themselves of this critical temporary assistance. There should be no penalties for being eligible for and participating in the food stamp program. With these restorations, we will come closer to righting a great wrong. Immigrants and immigration are a part of the history and heritage of our country. I am pleased that hard working immigrants who fall on hard times will be able to gain access to this important food assistance program. No member of our society should go without enough to eat. This legislation moves us further toward fulfilling that goal. I urge my colleagues to vote for this conference report.

Mr. LEAHY. I move to lay that motion on the table.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased today to introduce legislation to permit current and retired Federal, State and local law enforcement officers to carry a concealed firearm, the Law Enforcement Officers Safety Act of 2002. I am pleased that Senators Hatch, Baucus, Domenici, Cleland, McConnell, and Sessions are joining me as original cosponsors in this effort to make our communities safer and to protect law enforcement officers and their families. I am introducing this companion measure to H.R. 218 at the request of the Fraternal Order of Police, which strongly supports this legislation to protect officers and their families from vindictive criminals and to permit officers to respond immediately to a crime when off duty. Many of my friends in the law enforcement community believe that national legislation is necessary due to the patchwork of conceal-carry laws in State and local jurisdictions, and that off-duty and retired officers should be permitted to carry their firearms across state and other jurisdictional lines. Our bipartisan bill will allow thousands of equipped, trained and certified law enforcement officers continually to serve and protect our communities, regardless of jurisdiction, at no cost to taxpayers. This bill is designed to promote better law enforcement and improved public safety. Our legislation would permit qualified law enforcement officers and qualified retired law enforcement officers across the nation to carry concealed firearms in most situations. The bill, however, preserves any State law that permits citizens from restricting a concealed firearm on private property and preserves any State law that restricts the possession of a firearm on State or local government property. While I support this approach to strike a proper balance between providing law enforcement officers with the uniformity in the law needed to protect public safety, I still have some federalism concerns about the legislation. I look forward to working with my colleagues as the bill moves through the legislative process to further preserve essential rights of the states. To qualify for the bill's uniform standards a law enforcement officer must be authorized to use a firearm by the law enforcement agency where he or she works, be in good standing with that agency, and meet any standards established by that agency to regularly qualify to use a firearm. A qualified retired law enforcement officer under the bill must have retired in good standing, been employed at least five years as a law enforcement officer unless forced to retire due to a service- related injury, have a non-forfeitable right to benefits under the law enforcement agency's retirement plan, and annually complete a State- approved firearms training course. As a result, our bipartisan legislation maintains the State or local jurisdiction's power to determine whether a law enforcement officer or retired law enforcement officer is qualified in the use of a firearm. Representative Randy Cunningham introduced a similar bill in the House, H.R. 218, which has garnered more than 250 bipartisan cosponsors. In 1999, the House of Representatives adopted similar legislation, by a vote of 372-53, as a floor amendment during its gun safety debate before the overall legislation was defeated. I applaud my colleagues in the other legislative body for such strong bipartisan showing of support for this legislation. As a former state prosecutor, I know that law enforcement officers are never ``off-duty.'' They are dedicated public servants trained to uphold the law and keep the peace. When there is a threat to the peace or to our public safety, law enforcement officers are sworn to answer that call. Our legislation enables law enforcement officers across the country to be armed and prepared when they answer that call, no matter where or when it comes. I urge my colleagues to support the Law Enforcement Officers Safety Act to make our communities safer and to protect law enforcement officers and their families.