Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I see the distinguished assistant Republican leader on the floor. I ask unanimous consent that all time remaining on either side be yielded back.

Mr. LEAHY. Mr. President, have the yeas and nays been requested on the nominee?

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

Mr. LEAHY

Mr. LEAHY. Mr. President, today I would like to recognize Richard Gauthier, Chief of Police in Bennington, VT. Mr. Gauthier has been saving lives and protecting Vermont communities for nearly 30 years. Chief Gauthier began his career with the Bennington Police Department in 1980 after graduating from the Vermont Police Academy in Pittsford. Six years later, he was promoted to detective, and in 1998, he was named chief of the department, a position he has held for the past 12 years. Chief Gauthier received his bachelor's degree from Southern Vermont College in 1991, and later attended the FBI National Academy. He also holds a master's degree in criminal justice administration from Norwich University. As chief, he has led by example and consistently sought to improve the department, encouraging officers to seek additional education, improve their training and better their performance. He currently teaches courses in criminal justice at Southern Vermont College, his alma mater, where one former student described him as ``a phenomenal educator.'' During his time as chief, he has overseen a number of positive changes in the department and in the community including the formation of the Bennington County Child Advocacy Center/Special Victims Unit, of which he is a founding member. He also led efforts to specialize police investigation into drugs and gangs, and managed the department's move to a new police headquarters. A celebrated law enforcement officer, Chief Gauthier received the Vermont VFW Law Enforcement Officer of the Year in 2005 and the Vermont Commissioner's Award for Service to Children and Families. Chief Gauthier will celebrate 30 years of service in September, and plans to step down as Chief of Police. I commend Chief Gauthier for his dedication to the city of Bennington and the State of Vermont. He has selflessly given so much to his community. I ask unanimous consent that a story from The Bennington Banner about Chief Gauthier's career be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that this month Katherine Paterson of Barre, VT, has been named the 2010 National Ambassador for Young People's Literature. Her books, which include ``A Bridge to Terabithia,'' ``Jacob Have I Loved,'' and ``Bread and Roses Too,'' motivate young readers to become excited about reading and understand struggles and joy in their own lives. She has long inspired readers in Vermont and across the country to make reading a daily part of their lives. Reading at a young age can have a dramatic impact on a child's ability to succeed and learn more than can be taught in a classroom. In my home town of Montpelier, VT, the Kellogg-Hubbard Library serves as the center of the community to many local children. When I am home, I love seeing children flood the library after school and borrow new and exciting books or choose to reread old favorites. Despite what I witness at my local Vermont library, reading rates among children today are on the decline, which makes Ms. Paterson's role as National Ambassador even more crucial as she tours the country to attract new, young readers. I cannot think of a better suited choice for this challenging role, and I congratulate her on her appointment. On a personal note, Marcelle and I have valued our years of friendship with Katherine and John Paterson. I ask unanimous consent to have printed in the Record a January 6, 2010, Washington Post article about this year's National Ambassador for Young People's Literature.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to pay tribute to a dedicated public servant in Vermont who passed away earlier this month. Ralph Jackman joined the Vergennes Volunteer Fire Department in 1947, and took over the helm as chief of the department in 1954. Some 55 years later, in November 2009, he stepped down from his post--widely recognized as one of the longest serving fire chiefs in the Nation. During his time as the chief, Jackman saw many changes at the fire department. The department grew immensely-- doubling the number of firefighters and tripling the number of vehicles. He oversaw the establishment of a cadet program and the construction of a new fire station. He also found time for a variety of community service activities, including serving as the two-time president of the Vermont State Firefighters Association. Throughout his entire career, Jackman was in the thick of the action, responding to emergency calls and managing the volunteer department's operations. Chief Jackman's family had firefighting in its blood. Jackman's twin brother Fred, who passed away in 2008, was a member of the Bristol Fire Department for 62 years, including 14 years as that department's chief. Chief Jackman's wife, as well as his five daughters, helped the Vergennes Volunteer Fire Department throughout his career. And eight of Chief Jackman's grandchildren are now firefighters. My wife, Marcelle, and I wish to express our deepest condolences to Chief Jackman's wife, Myrle Jackman, his immediate family and his extended family in the fire service community throughout Vermont. They are rightly proud of Chief Jackman's long and distinguished career and the legacy he has left behind in Vergennes and Vermont. I ask unanimous consent that a story from The Burlington Free Press about Chief Jackman's storied career be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on January 20, 2010, at 10 a.m., to hold a hearing entitled ``Yemen: Confronting Al-Qaeda, Preventing State Failure.''

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet, during the session of the Senate, to conduct a hearing entitled ``Hearing on the Nomination of Joshua Gotbaum for Director of the Pension Benefit Guaranty Corporation'' on January 20, 2010. The hearing will commence at 10 a.m. in room 430 of the Dirksen Senate Office Building.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on January 20, 2010, at 9:30 a.m. to conduct a hearing entitled ``Intelligence Reform: The Lessons and Implications of the Christmas Day Attack.''

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate on January 20, 2010, at 10 a.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Securing America's Safety: Improving the Effectiveness of Anti-Terrorism Tools and Inter- Agency Communication.''

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate on January 20, 2010, at 2:30 p.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Nominations.''

Mr. LEAHY. Mr. President, I ask unanimous consent that the Subcommittee on Aviation Operations, Safety, and Security of the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on January 20, 2010, at 2:30 p.m. in room 253 of the Russell Senate Office Building.

Mr. LEAHY

Mr. LEAHY. Mr. President, we have reached a defining moment for the Senate and for the American people. The bill we have considered will rank alongside other major decisions such as the creation of Social Security and Medicare and the Civil Rights Act. Health insurance reform has been talked about and attempted for seven decades. The American people for years have named health insurance as among the greatest concerns in their daily lives. Now, here at hand, is the opportunity to act. This has been an arduous process. The President has rightly noted that if health insurance reform were easy, it would have been done long ago. The defenders of the status quo have spared no expense--nor have they been sparing in their distortions--to keep the system that pays them so handsomely. Health reform will benefit every American of today's generations. But let us especially think ahead one, two or three generations. If we were to abandon our responsibility now, saying it was too difficult, that would be an excuse for doing nothing that our children and grandchildren would never accept. For many reasons, including the health of public discourse on the most pressing issues we face as Americans, it is regrettable that the defenders of the status quo, doing their utmost to influence this debate from their comfortable perches outside the Senate, have stooped to new levels to obstruct health insurance reform. Friction is a byproduct of reform, especially when well-funded and entrenched special interests rally to protect the status quo. The heat of this debate is a measure of the cozy setups that these reforms will unsettle. This year alone Senate Democrats have been forced to contend with 101 filibusters by the minority Republicans. Even on an issue this important, health insurance reform is still being subject to filibuster and parliamentary delay to a level I have not seen in 35 years in the Senate. Opponents of reform unfortunately have wasted much of the public's time by provoking arguments over their distortions about what health reform really means. The country suffers when there is a failure to act on serious challenges that millions of ordinary Americans face in their daily lives. The arguments that we hear today to prop up the status quo by knocking down challenges to the way things are seem eerily similar to those made against creating Medicare nearly 45 years ago. Opponents then tried to demonize the plan and claimed it would never work. During the debate decades ago on Medicare, one Senator said: ``It would achieve little for those who need it, while subjecting the very fabric of American life to the strain of severe and unnecessary sacrifices.'' Eventually during that historic debate, Members from both sides of the aisle worked together to pass a bill that is one of the most successful, purposeful and popular programs today. The Medicare Program, like Social Security, was not perfect when it began, but improvements have been made over time. Vermonters can be proud that our State's congressional delegation, all Republican at the time, supported passage of that landmark legislation. The Senate has overcome the stalling and delay tactics, the filibusters and the roadblocks to the consideration of health care reform, and now we are closer than ever to passing comprehensive and meaningful health insurance reform. Is the Senate health care bill without any problems? No. Is the bill before us the one I would have drafted or the one that any other Member of the Senate would have drafted? Of course not. Extensive negotiations and refinement were needed to produce a bill of this scope and importance, as it should be in the legislative process. The difficulty was magnified by the minority's calculated decision to spend their efforts to undermine, instead of to constructively engage. Not only majorities but supermajorities were required at several steps in the Senate's work on this bill. There are 100 Senators and 435 Members of the other body who will have to stand up and be counted in this historic process. The votes of most, I believe, will be tallied on the right side of history and of the real-life, everyday needs of the American people for real health insurance reform. Some say the bill before us does not go far enough. Others say it goes too far. What everyone can agree on is what will happen if we do nothing. In the next decade, without reform, half of all nonelderly adults will find themselves without coverage at some point. The number of people without insurance will jump by more than 30 percent in 29 States and by at least 10 percent in every State. American families will continue to pay a hidden tax of $1,100 on their health insurance premiums to pay for the costs of care for the uninsured. The very same insurance coverage a family has in 2008 is projected to nearly double to $24,291 by 2016, consuming a whopping 45 percent of projected median family incomes. Premiums will continue to double every several years, making health insurance vastly unaffordable for many Americans. Economists project that if health insurance reform fails, the resulting lower gross domestic product, GDP, will reduce family incomes by $10,000 by 2030. Small businesses will continue to struggle and fewer and fewer will be able to offer coverage to their employees. Furthermore, as our population ages, Medicare is projected to be insolvent within 10 years, jeopardizing coverage for millions of American seniors. Each day that passes without reform, 14,000 Americans lose health insurance coverage. These are not minor problems to be brushed aside or kicked yet again down the road for another generation of Americans to tackle. These problems are on the Senate's doorstep, right here, right now. Keeping the status quo guarantees a struggling economy in the future, with more Americans unable to afford lifesaving treatments because of the rising cost of insurance. In 2001, 46 percent of all bankruptcies were attributable to medical costs. By 2007, that number had grown to 62 percent. While hard-working Americans were losing their jobs, homes and savings simply because they got sick, insurance and pharmaceutical company executives were making record profits. In 2000, the 10 largest publicly traded health insurance companies had profits of $2.4 billion. By 2007, profits at those firms had jumped to $12.9 billion, a 428-percent increase. In 2007, CEO salaries at these firms were $118.6 million or $11.9 million for each CEO. In 2007, prescription drug companies had a profit margin of 15.8 percent. The same year, profit margins at all Fortune 500 firms were 5.7 percent. Since the Nation's last attempt to pass health reform 16 years ago, millions of Americans have lost their insurance and costs have skyrocketed. In the absence of a fair and sensible health insurance system, families, businesses and taxpayers have been dragged along by an inflationary curve that only worsens with time. Next year, small businesses--already suffering from skyrocketing medical costs--will see their premiums rise by an average of 15 percent--twice the rate of last year's increases. Drug companies have boosted prices of brand-name drugs by about 9 percent over the last year, the steepest increase in years. Even though Vermont has long recognized the importance of building a health care system that includes all Vermonters, individual States acting alone cannot make enough progress without comprehensive health insurance reform. Tens of thousands of Vermonters still lack basic health insurance. Workers nationwide are losing insurance for their families when they change or lose jobs. Insurance companies can and do discriminate against sick people. I know so very many of these Vermonters. Many of them are my neighbors, my friends. Some of these Vermonters without health insurance went to school with me. Some grew up as I did in Montpelier, VT. Some are people I have known all our lives. They are hard-working, good, honest, decent people. It is a travesty that after working so hard and playing by the rules they still cannot begin to have the kind of health coverage that Federal employees--including those of us in this Chamber--are able to have because of earlier reforms of the Federal workforce health insurance system. Too many Vermont families live in the shadow of constant insecurity because they know that if they have an illness or if they lose a job, it might mean the end of their health insurance. Too many Vermonters are forced to sell their homes or file for bankruptcy to pay their health insurance bills. In no other modern society are families confronted with such heartbreaking dilemmas. Let me give a personal example. I heard recently from a Vermonter who only periodically had health insurance throughout his life and now goes without prevention and screenings and pays for everything out of pocket because he cannot afford any health care that is not urgently needed. Tragically, his wife was in a car accident, and even though the couple paid thousands in treatments, they ``had to stop short'' in giving her the necessary physical therapy and medications her doctors recommended because of the costs involved. Another Vermonter, who is lucky enough to have insurance, says her family pays almost $1,100 each month in premiums, and yet they have to reach a $3,000 deductible before the insurance company will pay a dime. She told me that ``as the cost of health insurance continues to rise, it feels like we will be swallowed whole by it.'' These should not be stories heard in today's America. We remain the only industrialized Nation in the world that lets its citizens fend for themselves without health coverage. The bill before us would make giant leaps toward reforming our health insurance system. Under the Senate bill, 31 million more Americans would have health insurance, bringing coverage to 94 percent--the highest level of insured Americans ever in our history. More low-income Americans will be able to access the State Medicaid Programs, and middle-income families will get enough help to be able to buy health insurance through State-based health insurance exchanges, which will be closely monitored. Insurance companies will never be able to drop your coverage, charge you more, or deny you or your children coverage because of a preexisting health condition. This bill also sets standards for qualifying health insurance so the insurance companies can no longer sell you coverage that does not actually help when you are sick. The legislation also contains a Patient Bill of Rights, long championed by Senator Kennedy, which guarantees that patients have a right to appeal denials or decisions by their health insurance companies. The insurance industry will no longer be allowed to pay excessive executive bonuses and salaries on the backs of their customers. All insurance companies will be required to spend more of their premium revenues on clinical services and quality activities, with less going to administrative costs and profits--or else they will have to pay rebates to policyholders. This change will improve quality of care and will hold the insurance industry accountable for their spending. Small businesses, which make up more than 80 percent of the businesses in Vermont, at long last will have access to affordable care under this bill. This bill will make tax credits available to small businesses to help them offer health insurance to their employees. These tax credits will make health insurance more affordable both for small businesses and for their workers. The nonpartisan Congressional Budget Office confirmed that the reforms in the bill--including lower administrative costs, increased competition, and better pooling for risk--will lower premiums for American families. CBO estimates premiums for the overall population will be reduced by 8.4 percent. In addition to the consumer protections and industry accountability provisions, this bill also takes significant strides to slow the growth of the spiraling health spending that has the potential to cripple our economy in the years to come. A substantial portion of the Senate bill is devoted to testing ways to reduce health care costs while improving quality over time. The bill contains pilots for efforts like Vermont's Blueprint for Health, under which patient care is coordinated to reduce unnecessary hospital visits and to keep patients healthy. Other programs will test various ways to pay doctors and hospitals that could be more efficient than the current fee-for-service structure. A greater emphasis on prevention--long supported by Senators Kennedy and Harkin in the Health, Education, Labor, and Pensions Committee--will reduce preventable deaths and hospitalizations. While these improvements to our health care system are significant and noteworthy, I am disappointed that the bill no longer includes a public insurance option to compete with private plans, nor does it include a provision I have proposed to repeal the antitrust exemption for health and medical malpractice insurers. Though there are differing views on the best ways to inject competition into the health insurance market, we can all agree that health and medical malpractice insurers should not be allowed to engage in blatantly anticompetitive practices, such as colluding to set prices and allocating markets. My legislation would ensure that basic rules of fair competition apply to insurers. I believe that repealing this antitrust exemption, combined with the public option, would go far in providing fair competition and choice in the health insurance marketplace. With all the progress the Senate's health care bill makes in the area of women's health--such as prohibiting insurance companies from discriminating against women through higher premiums and by allowing women free access to vital preventative services--it is unfortunate the bill also threatens to chip away at women's reproductive choices. Before a restrictive provision was added in the managers' amendment, the bill would have maintained current law by restricting Federal funds for abortions. The original Senate bill would have required insurance companies to segregate public and private funds to ensure no public funds would go to abortion services. Now, instead, the Senate bill would require women who purchase insurance on the exchanges to make two payments if they wish to have a wide range of choices. States could also opt out of allowing abortion to be covered at all on their exchanges, leaving women with fewer choices than they have now on the individual insurance market. While this language is far less restrictive than the language in the House-passed legislation, there is legitimate concern that despite the interest of women to have this choice available in the marketplace, this language would prompt private insurers to stop offering such options at all. I hope a better solution comes in conference. After one of the cliffhanger votes over the course of this long Senate debate, I spoke privately with Vicki Reggie Kennedy, the courageous and insightful widow of our beloved friend, Senator Edward Kennedy. This is a bittersweet time for her and for all who know how fully he was committed to winning this battle to lighten the load for the ordinary Americans who are struggling so mightily today. Health reform was the first of the many causes of his life and of his work in this body. We talked about how he would have relished this moment, and we talked about how he would have pressed his shoulder to the tiller to steer the Senate toward the right outcome for the American people. Though Senator Kennedy strongly supported including a public option, as I have, along with other reforms such as ending health insurers' antitrust exemption, Vicki Kennedy knows, as I do, that he would be fighting to pass this bill. This is the Senate's opportunity to advance real reform. This is a bill that reflects the core principles the President outlined in beginning this debate early this year. This is reform based on the existing system of employer-based insurance, offered by private insurers with health services delivered largely within the private sector. But any objective reading of this bill makes crystal clear that this is real reform. This is a bill that will improve the lives of every American. This is a bill that is a credit to this good and great Nation and its people. At its best, the Senate through our history has been able to act as the conscience of the Nation. Those moments were forged amid fervent debate and with the purpose of advancing a pressing national interest. This is such a time, and my hope and belief is that the Senate did rise to the occasion.

Mr. LEAHY

Mr. LEAHY. Mr. President, the urgent need for comprehensive reform of our health care system has not stopped opponents from launching spurious attacks. I understand that the junior Senator from Nevada recently raised a constitutional point of order against the pending health care reform bill. As chairman of the Senate Judiciary Committee, I would like to respond to those who have called into question whether Congress has the authority under the Constitution to enact health insurance reform legislation. The authority of Congress to act is well- established by the text and the spirit of the Constitution, by the long-standing precedent established by our courts, by prior acts of Congress and by the history of American democracy. The legislative history of this important measure should leave no doubt with respect to the constitutionality of our actions. The Constitution of the United States begins with a preamble that sets forth the purposes for which ``We the People of the United States'' ordained and established it. Among the six purposes set forth by the Founders was that the Constitution was established to ``promote the general Welfare.'' It is hard to imagine an issue more fundamental to the general welfare of all Americans than their health. The authority and responsibility for taking actions to further this purpose is vested in Congress by article I of the Constitution. In particular article I, section 8, sets forth several of the core powers of Congress, including the ``general welfare clause,'' the ``commerce clause'' and the ``necessary and proper clause.'' These clauses form the basis for Congress's power, and include authority to reform health care by containing spiraling costs and ensuring its availability for all Americans. The necessary and proper clause of the Constitution provides that ``The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof.'' Any serious questions about congressional power to take comprehensive action to build and secure the social safety net have been settled over the past century. According to article I, section 8, ``The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.'' This clause has been the basis for actions by Congress to provide for Americans' social and economic security by passing Social Security, Medicare and Medicaid. Those landmark laws provide the well-established foundation on which Congress builds today by seeking to provide all Americans with access to quality, affordable health care. The Supreme Court settled the debate on the constitutionality of Social Security more than 70 years ago in three 1937 decisions. In one of those decisions, Helvering v. Davis, Justice Cardozo wrote that the discretion to determine whether a matter impacts the general welfare ``is not confided in the courts'' but falls ``within the wide range of discretion permitted to the Congress.'' Turning then to the ``nation- wide calamity that began in 1929'' of unemployment spreading from State to State throughout the Nation, leaving older Americans without jobs and security, Justice Cardozo wrote of the Social Security Act: ``The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near.'' The Supreme Court reached its decisions upholding Social Security after the first Justice Roberts--Justice Owen Roberts--in the exercise of good judgment and judicial restraint began voting to uphold the key New Deal legislation. He was not alone. It was Chief Justice Hughes who wrote the Supreme Court's opinion in West Coast Hotel v. Parrish upholding minimum wage requirements as reasonable regulation. The Supreme Court also upheld a Federal farm bankruptcy law, railroad labor legislation, a regulatory tax on firearms and the Wagner Act on labor relations in National Labor Relations Board v. Jones & Laughlin Steel Corporation. The Supreme Court abandoned its judicially created veto over congressional action with which it disagreed on policy grounds and rightfully deferred to Congress's constitutional authority. Congress has woven America's social safety net over the last three score and 12 years. Congress's authority to use its power and its judgment to promote the general welfare cannot now be in doubt. America and all Americans are the better for it. Growing old no longer means growing poor. Being older or poor no longer means being without medical care. These developments are all due to congressional action. These Supreme Court decisions and the principles underlying them are not in question. As dean Erwin Chemerinsky of the University of California Irvine School of Law wrote in a recent op-ed in The Los Angeles Times: ``Congress has broad power to tax and spend for the general welfare. In the last 70 years, no federal taxing or spending program has been declared to exceed the scope of Congress' power. The ability in particular of Congress to tax people to spend money for health coverage has been long established with programs such as Medicare and Medicaid.'' I will ask that this article be printed in the Record following my remarks. The right-wing opponents of health care reform are so intent on partisan warfare that they are even calling into question the constitutionality of America's established social safety net. They would leave American workers without the protections their lifetime of hard work have earned them. They would turn back the clock to the hardships of the Great Depression, and thrust modern American back into the conditions of Dickens' novels. That is what some extremists will be urging another Justice Roberts--Chief Justice John Roberts--to do. That path should be rejected now, just as it was when another inspiring President led the effort to confront the economic challenges facing Americans. To strike down principles that have been settled for nearly three quarters of a century would be wrong and damaging to the Nation. For months now, we have been debating whether or not to pass health care reform. We can debate whether to control costs by having all Americans be covered by health insurance. In fact, we have been having that debate for months and months in this Congress, through extensive public markups in two committees in the Senate, as well as in the House of Representatives, and now for weeks on the Senate floor. We have considered untold numbers of amendments in committees and several before the Senate. That is what Congress is supposed to do. We consider legislation, debate it, vote on it and act in our best collective judgment to promote the general welfare. Some Senators will agree and some will disagree, but it is a matter for the full Senate to decide. I wish we could do so by a majority but Senate Republicans abhor majority rule now that they are not in control. So it will take an extraordinary majority for the Senate's will to be done. Tomorrow, we will vote on a point of order challenging the pending bill's constitutionality. The fact that Senate Republicans disagree with the majority's effort to help hardworking Americans obtain access to affordable health care does not make it unconstitutional. As Justice Cardozo wrote in upholding Social Security, ``whether wisdom or unwisdom resides in the scheme of benefits set forth . . . it is not for us to say. The answer to such inquiries must come from Congress, not the courts.'' I agree. Justice Cardozo understood the separation of powers enshrined in the Constitution and the Supreme Court's precedent. In 1803, our greatest Chief Justice, John Marshall, upheld the constitutionality of the Judiciary Act in Stuart v. Laird noted that ``there are no words in the Constitution to prohibit or restrain the exercise of legislation power.'' That is true here, where Congress is acting to provide for the general welfare of all Americans. I believe that Congress can and should decide whether the problems of the lack of availability and affordability of health care, and the rising health care costs that burden the American people, is a problem, ``plainly national in area and dimensions,'' as Justice Cardozo wrote of the widespread crisis of unemployment and insecurity during the Great Depression. I believe that it is right for this Congress to determine that it is in the general welfare of the Nation to ensure that all Americans have access to affordable quality health care. But whether other Senators agree or disagree with me, none should argue that we should take steps that turn back to clock to the Great Depression when conservative activist judges prevented Congress from exercising its powers to make that determination. As Chief Justice Marshall wrote in his landmark decision in McCulloch v. Maryland: ``Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.'' In seeking to discredit health care reform, the other side relies on a resurrection of long-discredited legal doctrines used by courts a century ago to tie Congress's hands by substituting their own views of property to strike down laws such as those guaranteeing a minimum wage and outlawing child labor. They have to rely on such cases of unbridled conservative judicial activism as Lochner v. New York, Shechter Poultry Corporation v. United States, Reagan v. Farmers Loan and Trust and the infamous Dred Scott case. Those dark days are long gone and better left behind. The Constitution, Supreme Court precedent, our history and congressional action all stand on the side of Congress's authority to enact health care legislation including health insurance reform. Under article I, section 8, Congress has the power ``to regulate Commerce with foreign Nations, and among the several States.'' Since at least the time of the Great Depression and the New Deal, Congress has been understood and acknowledged by the Supreme Court to have power pursuant to the commerce clause to regulate matters with a substantial effect on interstate commerce. The Supreme Court has long since upheld laws like the Fair Labor Standards Act against commerce clause challenges, ruling that Congress had the authority to outlaw child labor. The days when women and children could not be protected, when the public could not be protected from sick chickens infecting them, when farmers could not be protected and when any regulation that did not guarantee profits to corporations are long past. The reach of Congress's commerce clause authority has been long established and well settled. Even recent decisions by a Supreme Court dominated by Republican- appointed justices have affirmed this rule of law. In 2005, the Supreme Court ruled in Gonzales v. Raich that Congress had the power under the commerce clause to prohibit the use of medical marijuana even though it was grown and consumed at home, because of its impact on the national market for marijuana. Surely if that law passes constitutional muster, Congress's actions to regulate the health care market that makes up one-sixth of the American economy meets the test of substantially affecting commerce. Conservatives cannot have it both ways. They cannot ignore the settled meaning of the Constitution as well as the authority of the American people's elected representatives in Congress. The regulation of health insurance clearly meets the test from Raich, whether the activities ``taken in the aggregate, substantially affect interstate commerce.'' Addressing these problems is at the core of Congress's powers under the commerce clause. In fact, the Supreme Court expressly addressed this issue 65 years ago, ruling in 1944 that insurance was interstate commerce and subject to Federal regulation. Congress responded to this decision in 1945 with the McCarran-Ferguson Act, which gave insurance companies an exemption from antitrust laws unless Federal regulation was made explicit under Federal law. It is the immunity from Federal antitrust law enacted in McCarran-Ferguson that I have been working to overcome with my Health Insurance Industry Antitrust Enforcement Act of 2009 and the amendment I have sought to offer to the current health insurance reform legislation. Why would this exemption have been necessary if insurance was not interstate commerce? I strongly believe that the exemption in McCarran-Ferguson is wrongheaded but would anyone seriously contend that it is unconstitutional? Of course not. That is why I am working so hard to pass legislation to repeal it. The legislation and amendment I have sponsored will prohibit the most egregious anticompetitive conduct--price fixing, bid rigging and market allocations--conduct that harms consumers, raises health care costs, and for which there is no justification. Subjecting health and medical malpractice insurance providers to the Federal antitrust laws will enable customers to feel confident that the price they are being quoted is the product of a fair marketplace. The lack of affordable health insurance plagues families throughout our country, and my amendment would take a step toward ensuring competition among health insurers and medical malpractice insurers. The need for Congress to repeal the out of date Federal antitrust law exemption only further demonstrates the tremendous impact of health care on our economy and congressional power to act. The third clause of article I, section 8, to which I have referred, is the necessary and proper clause, as a basis for congressional action. This clause gives Congress the power ``to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the United States.'' The Supreme Court settled the meaning of the necessary and proper clause 190 years ago in Justice Marshall landmark decision in McCullough v. Maryland, during the dispute over the National Bank. Justice Marshall wrote that ``the clause is placed among the powers of Congress, not among the limitations on those powers.'' The necessary and proper clause goes hand in hand with the commerce clause to ensure congressional authority to regulate activity with a significant economic impact. We face a health care crisis, with millions of Americans uninsured and with uncertainty and high costs for Americans who are insured. We need to ensure that Americans not risk bankruptcy and disaster with every illness. Americans who work hard their whole life should not be robbed of their family's security because health care is too expensive. During the New Deal we charted a path for America where growing old did not mean being poor, or being without health care. Americans should not lose their life savings because they have the misfortune of losing a job or getting sick. That is not America. The success of the last century was the establishment of a social safety net for which all Americans can be grateful and proud. Through Social Security, Medicare and Medicaid, Congress established some of the cornerstones of American security. They are within the constitutional authority of the Congress just as health insurance reform is. No conservative activist court should overstep the judiciary's role by seeking to turn back the clock and deny a century of progress. The authority of Congress is well settled and well established by the Constitution, judicial precedent, and our history of legislation promoting the general welfare and protecting the economic security and health of Americans. The cumulative economic effects on the Nation of the rising costs of health care are significant, with those costs making up a large percentage of our economy and with American businesses struggling to provide benefits to their employees. As set forth in a paper by Georgetown University and the O'Neill Institute for National and Global Health Law, the requirement for individuals to purchase health insurance would address the problem of free riders, millions of Americans who refuse to buy health insurance and then rely on expensive emergency health care when faced with medical problems. This shifts the costs of their health care to people who do have insurance, which in turn has a significant effect on the costs of insurance premiums for covered Americans and on the economy as a whole. A requirement that all Americans have health insurance--like requirements to be vaccinated or to have car insurance or to register for the draft or to pay taxes--is within congressional power if Congress determines it to be essential to controlling spiraling health care costs. Requiring that all Americans have health insurance coverage, and preventing some from depending on expensive emergency services in place of regular health care, can and will help reduce the cost of health insurance premiums for those who already have insurance. Whether Senators agree or not on the necessity to reform our health care system and health insurance, I trust that all Senators, Republican, Democratic and Independent, agree that it is our responsibility to act and within Congress's constitutional authority to legislate for the general welfare of all Americans. Mr. President, I ask unanimous consent to have printed in the Record the Los Angeles Times op-ed to which I referred.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased today to introduce legislation to reauthorize the Department of Justice grant program for Boys & Girls Clubs. I thank Senator Hatch, Senator Kohl and Senator Sessions for joining me in this effort. I have partnered with Senator Hatch for many years on issues concerning the Boys & Girls Clubs, and this bipartisan bill shows the commitment of both Democrats and Republicans to the good work done by Boys & Girls Clubs across the Nation. Children are the future of our country, and we have a responsibility to make sure they are safe and secure. I know firsthand how well Boys & Girls Clubs work, and the real impact they have in our communities. In my home State of Vermont, we are fortunate to have 6 Boys & Girls Clubs operating in 25 locations. These clubs serve more than 14,000 youth in the State. I often hear from parents, educators, law enforcement officers and others in Vermont about just how successful these Clubs are, and how they inspire youth to reach their full potential. As a senior member of the Senate Appropriations Committee, I have pushed for more Federal funding for Boys & Girls Clubs. This year, I recommended additional funding for youth mentoring programs, so that youth-serving organizations like the Boys & Girls Clubs of America are able to continue making a substantial and real difference in the lives of vulnerable children. I was pleased that Congress included $100 million for competitive youth mentoring grants in the recently passed consolidated appropriations bill. The current recession has hit many organizations around the country, threatening their financial health, and the Boys & Girls Clubs are no different. At the same time, participation in these clubs has never been higher, and it continues to increase. I believe funding is well spent at the community level, however, where the positive impact on our youth is felt most directly. In the 108th Congress, Senator Hatch and I worked together to pass a bill to reauthorize and extend the programs of the Boys & Girls Clubs of America through fiscal year 2009. Due in part to the support of Congress, there now exist over 4,300 Boys & Girls Clubs in all 50 states, serving more than 4.8 million young people. The bill we introduce today will help us continue to support these important programs by authorizing Justice Department grants through 2015. We need safe havens where our youth--the future of our country--can learn and grow up free from the influences of drugs, gangs and crime. That is why Boys & Girls Clubs are so important to our children. I hope all Senators will support this bipartisan bill to provide Federal support for the Boys & Girls Clubs of America. Our greatest responsibility is to our children, and supporting Boys & Girls Clubs is just one way in which we can show our commitment to their future. Mr. President, I ask unanimour consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased today to introduce legislation to reauthorize the Department of Justice grant program for Boys & Girls Clubs. I thank Senator Hatch, Senator Kohl and Senator Sessions for joining me in this effort. I have partnered with Senator Hatch for many years on issues concerning the Boys & Girls Clubs, and this bipartisan bill shows the commitment of both Democrats and Republicans to the good work done by Boys & Girls Clubs across the Nation. Children are the future of our country, and we have a responsibility to make sure they are safe and secure. I know firsthand how well Boys & Girls Clubs work, and the real impact they have in our communities. In my home State of Vermont, we are fortunate to have 6 Boys & Girls Clubs operating in 25 locations. These clubs serve more than 14,000 youth in the State. I often hear from parents, educators, law enforcement officers and others in Vermont about just how successful these Clubs are, and how they inspire youth to reach their full potential. As a senior member of the Senate Appropriations Committee, I have pushed for more Federal funding for Boys & Girls Clubs. This year, I recommended additional funding for youth mentoring programs, so that youth-serving organizations like the Boys & Girls Clubs of America are able to continue making a substantial and real difference in the lives of vulnerable children. I was pleased that Congress included $100 million for competitive youth mentoring grants in the recently passed consolidated appropriations bill. The current recession has hit many organizations around the country, threatening their financial health, and the Boys & Girls Clubs are no different. At the same time, participation in these clubs has never been higher, and it continues to increase. I believe funding is well spent at the community level, however, where the positive impact on our youth is felt most directly. In the 108th Congress, Senator Hatch and I worked together to pass a bill to reauthorize and extend the programs of the Boys & Girls Clubs of America through fiscal year 2009. Due in part to the support of Congress, there now exist over 4,300 Boys & Girls Clubs in all 50 states, serving more than 4.8 million young people. The bill we introduce today will help us continue to support these important programs by authorizing Justice Department grants through 2015. We need safe havens where our youth--the future of our country--can learn and grow up free from the influences of drugs, gangs and crime. That is why Boys & Girls Clubs are so important to our children. I hope all Senators will support this bipartisan bill to provide Federal support for the Boys & Girls Clubs of America. Our greatest responsibility is to our children, and supporting Boys & Girls Clubs is just one way in which we can show our commitment to their future. Mr. President, I ask unanimour consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, after months of arduous work, the Senate will finally take the first significant step toward bringing needed reforms to health care in this Nation. Opponents of reform have wasted much of the public's time by provoking arguments over their distortions about what health reform means. Opponents have tried to demonize the plan, and have claimed it will never work. We have overcome weeks of delay tactics employed by the minority--inexplicably, the most recent delay due to a filibuster against a bill to provide funding for our troops. These are the tactics of obstruction, and further demonstrate Republicans' efforts to maintain the status quo. Is this the exact bill that any one of us would have written? Probably not. I remain disappointed that the managers' amendment before us today strips the bill of a public insurance option to compete with private plans and does not include a provision I have sponsored to repeal the antitrust exemption for health insurers and medical malpractice insurers. I believe both of these provisions would go far in providing fair competition into the health insurance market. But in looking at this bill as a whole, I believe it stands by the core principles I sought at the beginning of this debate. It gives Americans affordable access to health care coverage, it reduces costs for families, businesses and government, and it protects consumers' ability to choose doctors, hospitals and insurance plans. The managers' amendment introduced by the majority leader incorporates many important changes to the underlying legislation that will improve the bill. It includes several provisions that I have long supported and promoted. Vermont has always been a national leader in expanding access to health insurance. In coordinating care, offering comprehensive coverage to children, and developing a system of electronic health records, Vermont has been at the forefront of reform. It is no surprise that for the third year in a row Vermont has been ranked the healthiest State in the Nation. Unfortunately, a provision included in the underlying bill to expand Medicaid coverage nationwide threatened to penalize Vermont by excluding the State from increased Federal funding, solely because Vermont acted early to do the right thing. We can all share the goal of increasing access to essential medical services by expanding Medicaid coverage nationwide, but we should not penalize States such as Vermont, which demonstrated the initiative to expand its Medicaid Program early. Senator Reid's amendment, however, remedies the anomaly in the underlying bill, and will allow Vermont to access additional Federal funding when the Medicaid expansion goes into effect. I thank Senators Reid and Baucus for working with me to ensure that Vermont's efforts to expand coverage to low income individuals is not set back by inequities in the underlying legislation. The managers' amendment also incorporates a vital antifraud amendment Senator Kaufman and I, as well as Senators Specter, Kohl, Schumer, and Klobuchar, introduced, derived from the Health Care Fraud Enforcement Act which we introduced earlier this fall. This antifraud initiative builds on the impressive steps the administration has already taken to step up health care fraud prevention and enforcement, and on the real progress represented by the antifraud provisions adopted by the Finance and HELP Committees and incorporated into the leader's health care reform bill. I was glad to contribute to those efforts, and I am glad we are now going even further. The Kaufman-Leahy provision will provide prosecutors with needed tools for the effective investigation, prosecution, and punishment of health care fraud. By making modest but important changes to the law, it ensures that those who drain our health care system of billions of dollars each year, driving up costs and risking patient lives, will go to jail, and that their fraudulent gains will be returned to American taxpayers and health care beneficiaries. For more than three decades, I have fought in Congress to combat fraud and protect taxpayer dollars. This spring, I introduced with Senator Grassley and Senator Kaufman the Fraud Enforcement and Recovery Act, the most significant antifraud legislation in more than a decade. When that legislation was enacted, it provided law enforcement with new tools to detect and prosecute financial and mortgage fraud. Now, as health care reform moves through the Senate, I am glad we are taking steps to do all we can to tackle the fraud that has contributed greatly to the skyrocketing cost of health care. The scale of health care fraud in America today is staggering. According to even the most conservative estimates, at least 3 percent of the funds spent on health care are lost to fraud--more than $60 billion a year. In the Medicare Program alone, the General Accountability Office estimates that more than $10 billon was lost to fraud just last year. While Medicare and Medicaid fraud is significant, it is important to remember that health care fraud does not occur solely in the public sector. Private health insurers also see billions of dollars lost to fraud. That fraud is often harder for the government to track. Private companies have less incentive to report it, and in some cases, are responsible for the fraudulent practices themselves. Reining in private sector fraud must be a part of any comprehensive health care reform. The Kaufman-Leahy provision makes a number of straightforward, important improvements to existing statutes to strengthen prosecutors' ability to combat health care fraud. The bill would increase the Federal sentencing guidelines for health care fraud offenses. Despite the enormous losses in many health care fraud cases, offenders often receive shorter sentences than other white-collar criminals. This lower risk is one reason criminals are drawn to health care fraud. By increasing the Federal sentencing guidelines for health care fraud offenses, we send a clear message that those who steal from the Nation's health care system will face swift prosecution and substantial punishment. The provision provides for a number of statutory changes to strengthen fraud enforcement. For example, it would expand the definition of a ``Federal health care fraud offense'' to include violations of the antikickback statute and several other key health care-related criminal statutes, which will allow for more vigorous enforcement of those offenses, including making their proceeds subject to criminal forfeiture. It also clarifies the intent requirement of another key health care fraud statute in order to facilitate effective, fair, and vigorous enforcement. The managers' amendment also includes our provision amending the antikickback statute to ensure that all claims resulting from illegal kickbacks are considered false claims for the purpose of civil action under the False Claims Act, even when the claims are not submitted directly by the wrongdoers themselves. All too often, health care providers secure business by paying illegal kickbacks, which needlessly increases health care risks and costs. This change will help ensure that the government is able to recoup from wrongdoers the losses resulting from these kickbacks. The Kaufman-Leahy measure gives the Department of Justice limited subpoena authority for civil rights investigations conducted pursuant to the Civil Rights for Institutionalized Persons Act. This provision allows the government to more effectively investigate conditions in publicly operated institutions, such as nursing homes, mental health institutions, and residential schools for children with disabilities, where there have been allegations of civil rights violations. These changes will strengthen our ability to crack down on fraud and will ultimately result in significant savings that will make health care more efficient and more affordable. I am also pleased Senator Reid's amendment includes a key reform to the False Claims Act that Senator Sanders, Senator Grassley, and I have proposed. By fixing the False Claims Act's public disclosure provision, we can ensure that we fairly and appropriately empower whistleblowers to come forward to expose fraud, which is a crucial way to save the government money and ensure the health and well-being of Americans. We all agree that reducing the cost of health care for American citizens is a critical goal of health care reform. We in Congress must do our part by ensuring that, when we pass a health care reform bill, it includes all the tools and resources needed to crack down on the scourge of health care fraud. This provision is an important part of that effort. I am also very encouraged that the amendment before us includes a measure I proposed with Senator Brown to expand Federal Tort Claims Act medical malpractice coverage for free medical clinics. This expanded coverage will help free clinics across the Nation continue to provide and improve a critical safety net for many Americans. In 1996, Congress enacted legislation to cover volunteer medical professionals in free clinics with medical malpractice liability insurance through the Federal Tort Claims Act. This coverage protects volunteer medical staff against liability by substituting the Federal Government for an individual defendant. But without any explanation in the legislative history, the coverage enacted in 1996 failed to provide coverage for others who are essential to the operation of free clinics, such as nonmedical staff, contractors, board members, and the clinic itself. As a result, free clinics must use scarce funding to purchase insurance on the private market to fill this gap. This lack of comprehensive coverage for free clinics is inconsistent with the coverage provided to community health centers, which benefit from coverage for all employees. This provision will remedy this discrepancy. This measure will have no impact on the legal rights of a patient injured by a medical error; any victim of medical malpractice will still be able to pursue a remedy for an injury under the Federal Tort Claims Act. Instead, this amendment will free up scarce resources that are currently being used to purchase liability insurance on the private market. Informal estimates indicate that this amendment could save free clinics across the country $15 to $20 million a year. These are funds that will be redirected to providing essential medical services to low- income and other Americans in need. For example, as a result of this amendment, the Viola Startzman Free Clinic in Wooster, OH, will save $17,000 a year. The Americares Clinic in Stamford, CT, will save $31,000 each year. Our hard-working free clinics in Vermont will save $12,000 each year and will be able to put those savings toward helping Vermonters in need of health care services. For free clinics operating through volunteerism and private donations and in a difficult economy, these are substantial sums that if devoted to the care of Americans in need will have a significant positive impact. And the savings realized through this amendment will cost the taxpayers little if anything. Free clinics do not perform high-risk procedures such as obstetrics or surgeries, and thus are subject to a lesser risk of liability. Since 2004, when funds were first appropriated and set aside to cover any claims against free clinic doctors, no claims have been filed. The bottom line is that this amendment represents significant value to Americans in need of health care services at little cost to the government and the taxpayer. I thank Senator Brown for his support as a cosponsor, and I thank the majority leader, Senator Harkin, and Senator Baucus for working with me to make this amendment part of the historic legislation before the Senate. Over the course of the past month, I have listened to many of my friends on the other side of the aisle. It is not surprising that frequently they have argued for one of their pet proposals--medical malpractice reform. For as long as I have served in this Chamber, I have fought against court-stripping measures that limit American's access to their justice system. I have also fought to protect the sovereignty of States to make rules for their own justice systems. Medical malpractice claims are based on State law and for the most part take place in State courts. I find it curious that some of the same Senators who pledge loyalty to federalism and the sovereignty of the States under the tenth amendment are some of the same Senators who are so aggressively pushing for a Federal ``one-size-fits-all solution'' for the justice systems in our 50 States. The managers' amendment includes a provision addressing malpractice liability that has been introduced on a bipartisan basis several times over the past few years. I support this provision because it respects the States' primary role in adjudicating the claims of patients injured or killed by medical errors. I also support this provision because it resists the notion that ``one-size-fits-all'' when it comes to litigation issues and it includes the necessary safeguards for patients. I note for the Record that several States' efforts to reform medical malpractice liability have been struck down as unconstitutional. For example, Alabama, Florida, Georgia, Illinois, Kansas, New Hampshire, Ohio, Oregon, South Dakota, Washington, and Wisconsin have all enacted caps on damages associated with medical malpractice claims. And all of those State laws were struck down as unconstitutional for good reason. I am heartened that no such amendment was seriously considered in this Chamber because such arcane measures hurt our children, our senior citizens, and stay-at-home moms. The Wall Street Journal has reported on this clear fact when it pointed out that these caps deprive these groups of access to justice. If we create Federal caps on their ability to recover from serious injuries we are telling them that they are worth less because they are retired or they choose to stay home and raise a family or are young children. This is not fair. I know that no doctor wants to harm a patient, but the solution is not to take away the rights of patients who are seriously injured. The provision in the managers' amendment does not encourage draconian damages caps and does not dictate what reforms States must consider. Importantly, however, it does include specific patient protections that must be in place before a State can receive a grant for liability reform measures. To the extent that States can pass measures that improve patient safety as well as expedite damages recovery for victims, those reforms will truly improve our health care system. I am disappointed, however, that the Health Insurance Antitrust Enforcement Act, which I introduced in September, was not part of the managers' amendment, and will not be part of the Senate's health reform legislation. That legislation would repeal the antitrust exemption for health insurers and medical malpractice insurers, and is an integral part of injecting competition into the health insurance market. While there are differing views on the best way to inject competition into the health insurance market, we can all agree that health and medical malpractice insurers should not be allowed to engage in blatantly anticompetitive practices, such as colluding to set prices and allocating markets. My repeal would ensure that basic rules of fair competition will apply to insurers, and is nonpartisan. My amendment was cosponsored by 23 Senators, and has support from a cross-section of consumer rights organization. I look forward to working to include this repeal when the Senate and House conference to reconcile their versions of the legislation. The managers' amendment will improve the underlying bill, and I hope my fellow Senators will support its passage so we can move toward final passage of the bill. Each day that passes without reform, 30 more Vermonters lose their health insurance. We know our current health system is unsustainable. That threatens not only our health security, but also our economic security. Doing nothing has been seen as an option before, but it simply is not an option now. I hope now we can work together to pass a bill that will give millions more Americans access to quality, affordable health care. We should reject the tactics of delay and the efforts to obstruct, and remember that the Senate should be the conscience of the Nation. With the Christmas season upon us, our constituents are looking to us to do the right thing. We should adopt this amendment, advance this legislation, and work to send it to the President without undue delay.

Mr. LEAHY

Mr. LEAHY. Mr. President, I want to speak briefly about the indictment and trial by Chinese authorities of Mr. Liu Xiaobo for ``incitement of state subversion.'' The evidence cited in support of the charges were Mr. Liu's essays and association with Charter 08, a framework for democracy, human rights and the rule of law that was made public a year ago this month. That document was signed by Mr. Liu and some 300 other intellectuals and activists. Thousands more people have since added their names, most of them from inside China. I am told that Charter 08 is widely regarded as the most significant democratic reform movement in China in a decade. The charges against Mr. Liu are very disappointing. They illustrate how little has improved in China regarding tolerance for freedom of expression. I am informed that the Chinese Government has decided to bring Mr. Liu to trial, that international observers are permitted under Chinese law, and this is consistent with international legal standards on the openness and transparency of legal proceedings. I mention this because I am aware that former Governor of Pennsylvania and U.S. Attorney General Richard Thornburgh has expressed a strong interest in attending the trial as an observer, to show support for Mr. Liu and to convey the concern that he and others around the world have for the larger implications of this case. The arrest of Mr. Liu demonstrates a continuing, disturbing trend in China. As Governor Thornburgh has written: in recent years, China's leaders seemed to be tolerating changes in the legal system. The number of private lawyers and law firms has grown exponentially. Lawyers and citizens energetically began pursuing rights in court. A ``wei quan,'' or ``rights defense'' movement, grew up around lawyers and activists seeking to use the laws on the books, and the institutions allowed by law, to assert and defend human rights without challenging the underpinnings of China's communist system. Such efforts were tolerated at first, and there were even modest signs of greater professionalism in the communist judicial system. Unfortunately, initial signs of progress have given way to serious setbacks. Many lawyers who take on politically- sensitive cases have been subject to a kind of backdoor disbarment, finding it impossible to renew their licenses. Some lawyers have been the target of surveillance, confined to house arrest, the victims of physical attacks, raids and confiscation of their property. Law firms and other groups pursuing law in the public interest have been shut down. Moreover, there has been an alarming increase in the use of ``subversion'' or state security charges leveled against activists. These cases have become a substitute for the old ``counter-revolutionary'' crimes. Others convicted on such grounds include Hu Jia, the AIDS activist who also criticized abuses surrounding the staging of the Summer 2008 Olympic Games and Huang Qi, who posted public information on his website about the government's response to the Sichuan earthquake. Liu's prosecution requires a serious response from the United States. Cooperating with China on other issues like the environment or North Korea does not mean we must silence ourselves when it comes to the rights and freedoms of China's citizens. Indeed, we are unlikely to get meaningful cooperation on any issue when we appear weak in defense of our principles, which as President Obama has said many times--most recently in his speech accepting the Nobel Peace Prize--are universal principles. I agree, and hope the Chinese authorities reconsider this case, release Mr. Liu, and dismiss the charges against him. There are so many issues on which we want to expand our cooperation with China, but the persecution of courageous Chinese citizens who are guilty of nothing more than exercising rights guaranteed by the Universal Declaration of Human Rights hinders that cooperation and China's own development. If the charges are not dismissed, and Mr. Liu is brought to trial, his trial should be attended by outside observers including top officials of the U.S. Embassy and Governor Thornburgh. I hope the Department of State and our diplomats in Beijing will assist Governor Thornburgh, including in obtaining a visa and access to the trial. It is important that the Chinese Government, and the Chinese people, know how strongly we deplore what is being done to Mr. Liu, and what it says about the need for China to meet its own commitments to respect internationally recognized human rights.

Mr. LEAHY

Mr. LEAHY. Mr. President, I want to speak briefly about a matter that is of concern to the Congress and the Department of State, involving a heinous crime that occurred in Nepal and the need for justice. Many people are familiar with the brutal murder of Maina Sunuwar in February 2004. At the young age of 15, she was arrested by Nepali soldiers and severely tortured to death at, of all places, the Birendra Peace Operations Training Center. After her murder, the army made it look as though she had been shot while trying to escape, and then buried her body at the center. According to a United Nations report, in September 2005, after intense public and international pressure, three army officers were brought before a court martial and sentenced to a mere 6 months imprisonment for failing to follow proper procedures when disposing of Maina's body. In spite of many requests, the Nepal army refused to disclose the nature of the charges that led to this sentence, or provide copies of any documents relating to the court of inquiry or court martial. It also refused to cooperate with police investigations. It is shocking that one of the officers accused in her murder, Major Niranjan Basnet, was permitted to participate in a United Nations peacekeeping mission in Chad. This speaks volumes about the inadequacy of vetting procedures of military personnel for such missions, which is a separate subject that I intend to take up with officials at the Department of State and United Nations. To his credit, Prime Minister Madhav Kumar Nepal had Major Basnet returned from Chad, following the issuance of an arrest warrant and in response to public calls for his arrest. However, when he arrived back at the Katmandu airport the army took him under its control and apparently, despite initial promises and requests from the police and orders from the Prime Minister, has still not handed him over to the police. This case represents a critical juncture for Nepal. In large measure, and as others have pointed out, Maina's death will decide whether a civilian, democratic government and the rule of law will determine Nepal's future, or it will remain dominated by the interests of the Nepal army. Just a few days ago, President Obama signed into law the Consolidated Appropriations Act, 2010, which includes a prohibition on assistance to the Nepal army unless it, among other things, is cooperating fully with investigations and prosecutions by civilian judicial authorities of violations of internationally recognized human rights. This provision applies squarely to Maina's case. I urge the new Chief of the Army Staff, General Chhattraman Gurung, to seize this opportunity to demonstrate that the army is reforming, that it recognizes in a democracy its members are answerable to the civilian courts, and that it will no longer perpetuate the impunity that has undermined the rule of law in Nepal for far too long.

Mr. LEAHY

Mr. LEAHY. Mr. President, I have long questioned the policy of detaining asylum seekers who present genuine claims for protection under our laws. Asylum seekers who express a fear of return to their country, and who can establish their identity and show that they are neither a flight risk nor a threat to the community, should be allowed to pursue a claim for relief in the United States free from custody. Yesterday, U.S. Immigration and Customs Enforcement, ICE, announced new guidelines for release of asylum seekers that override an unduly harsh policy implemented in 2007 by the Bush administration and that are a welcome step toward compliance with our obligations under the Refugee Convention. Under current law, an asylum seeker who arrives at a port of entry and asks for refugee protection is given a brief interview to ascertain whether he or she has a credible fear of persecution in their home country. If the asylum seeker passes that interview, they are detained, pending a hearing on their claim before an immigration judge. That hearing may take place weeks or months after the asylum seeker arrives in the United States. Unless the asylum seeker can convince the Department of Homeland Security that they should be released, that asylum seeker can spend those weeks or months in immigration detention. This policy is an affront to our ideals as a nation that aspires to be a beacon of light to persecuted refugees. In 1997, the Immigration and Naturalization Service developed guidelines to determine whether asylum seekers should be released from custody in ``parole'' status while their asylum claims were adjudicated. To obtain parole, asylum seekers were required to establish their identity, and show that they were neither a flight risk nor a threat to the community. These guidelines were properly calibrated to deter fraud in the asylum system and threats to our national security. They also ensured that those who met the criteria for parole should be released. The 1997 parole guidelines were imperfectly implemented, but the policy contained in them was reasonable and appropriate. For reasons that were never adequately explained, under the prior administration, ICE issued new parole guidelines that raised the bar for asylum seekers. In addition to the 1997 requirements, under the Bush policy, an asylum seeker had to demonstrate other factors, such as a serious medical condition, pregnancy, status as a minor, or that his or her release was in the ``public interest.'' The term ``public interest'' was not defined in the 2007 guidelines and it is not clear how a detained asylum seeker could have met such a vague standard. Members of Congress and the bipartisan U.S. Commission on International Religious Freedom questioned the need for such a restrictive policy, especially when many asylum seekers have no criminal record and pose no risk to Americans. The new parole policy generally hews to the 1997 parole guidelines, but contains an important improvement. Again, asylum seekers will be eligible for parole if they demonstrate a credible fear of return to their country of origin, establish identity, and show that they are neither a flight risk nor a threat to the community. For the first time, however, the government will conduct a parole review of each case in which the asylum seeker establishes a credible fear of return. Under both the 1997 and 2007 policies, an asylum seeker had to request a parole determination in writing. Many asylum seekers arrive on our shores with genuine claims for protection, but no English language skills and no legal counsel. For these asylum seekers, navigating our complex immigration system presents an enormous hurdle. It is a challenge for them to even comprehend that they may seek parole from detention. Therefore, an automatic parole review will assist many bona fide refugees in winning release from custody. Our commitment to fair and humane treatment of refugees demands no less. This new policy will also save taxpayer dollars spent to detain immigrants, including asylum seekers who are otherwise eligible for parole, at an average of $100 per person, per day. In 1996, when our asylum laws were rewritten to restrict access to protection for many who requested protection upon arrival, I fought hard to preserve our role as a nation that welcomes refugees. I offered an amendment to restore basic due process protections to the summary exclusion and expedited removal provisions proposed for asylum seekers. Former Senator Michael DeWine of Ohio cosponsored the amendment, which prevailed by only one vote. Since that time, I have worked to strengthen access to due process for asylum seekers and ensure that our government complies with its international treaty obligations under the Refugee Convention. I commend President Obama and Secretary Napolitano for engaging in a serious review of our asylum policies and taking steps to bring us closer to full compliance with international law. With the thirtieth anniversary of the Refugee Act of 1980 approaching, I will continue to press for both legislative and administrative changes to the law that will protect refugees and asylum seekers from harm and provide them with safety and security in America.

Mr. LEAHY

Mr. LEAHY. Mr. President, making medicine affordable is part of what health reform should be. Today we have the opportunity to include a measure long-championed by Senator Dorgan, which makes affordable prescription drugs more widely available to Americans. Americans pay some of the highest prices for prescription drugs of any country in the world despite the fact that many of these drugs are made right here, and they are often made with the benefit of taxpayer supported research. Prescription drugs are a lifeline, not a luxury. The issue boils down to access: A prescription drug is neither safe nor effective if you cannot afford to buy it. We have to recognize that this imposes real dangers on American consumers when they cannot follow their doctor's treatment plan because they can't afford their medicine. While we must do more to bring affordable healthcare to the millions of Americans who are currently uninsured or who do not have good coverage, we cannot continue to deny them this immediate market-based solution. I am proud to be a cosponsor of the Dorgan-Snowe amendment to allow pharmacies and drug wholesalers in the United States to import the very same medications that are FDA-approved in the United States from Canada, Europe, Australia, New Zealand, and Japan where prices are 35- 55 percent lower than in the United States. Consumers will be able to purchase the very same prescription medications from their local pharmacies at a third or half of the cost. Additionally, the legislation would also allow individuals to purchase prescription drugs from FDA-inspected Canadian pharmacies--something Vermonters have crossed the border to do many times before. For many Vermonters today, purchasing drugs from Canada literally means the difference between following their doctors' orders and having to throw the dice with their health and sometimes even with their lives by doing without their prescription medicines. It makes the difference for the woman who has maxed out her health plan's annual prescription drug benefit only three months into the year and is then faced with purchasing the other nine months worth of medicine at U.S. prices on her own. It makes the difference for the elderly man on a fixed income who is unable to afford both the heart medicine he needs to live, and the gas bill he needs to keep warm. Are we prepared to tell those in dire need that they must go back to choosing between paying gas, food, and heating bills, or their medicine? Of course not, and I urge my fellow Senators to support the Dorgan- Snowe amendment.

Mr. LEAHY

Mr. LEAHY. Mr. President, two weeks ago, I challenged Senate Republicans to do as well as Senate Democrats did in December 2001 when we proceeded to confirm 10 of President Bush's nominees as Federal judges. Regrettably, my plea has been ignored. Senate Republicans are failing the challenge. The Senate has been allowed to confirm only one judicial nominee all month. On December 1, after almost 6 weeks of unexplained delays, the Senate was allowed to consider the nomination of Judge Jacqueline Nguyen to fill a vacancy on the Federal Court for the Central District of California. When finally considered, she was confirmed unanimously by a vote of 97 to 0. Since then, not a single judicial nominee has been considered. It is now 2 weeks later, December 15. Judicial nominees have been and are available for consideration. This lack of action is no fault of the President. He has made quality nominations. They have had hearings and have been considered by the Senate Judiciary Committee and favorably reported to the Senate. Indeed, the logjam has only grown over the last 2 weeks. Five additional judicial nominations have been added to the Senate calendar since December 1, bringing the total number of judicial nominations ready for Senate action, yet delayed by Republican obstruction, to 12. One has been ready for Senate consideration for more than 13 weeks, another more than 10 weeks, and the list goes on. The majority leader and Democratic Senators have been ready to proceed. The Republican Senate leadership has not. There are now more judicial nominees awaiting confirmation on the Senate's Executive Calendar than have been confirmed since the beginning of the Obama administration. Due to delays and obstruction by the Republican minority, we have only been able to consider 10 judicial nominations to the Federal circuit and district courts all year, and for one of them, although supported by the longest serving Republican in the Senate, we had to overcome a full-fledged filibuster led by the Republican leadership. As a result, we will not only fall well short of the total of 28 judicial confirmations the Democratic Senate majority worked to confirm in President Bush's first year in office, but we threaten to achieve the lowest number of judicial confirmations in the first year of a new Presidency in modern history. It is clear that the Republican leadership has returned to their practices in the 1990s, which resulted in more than doubling circuit court vacancies and led to the pocket filibuster of more than 60 of President Clinton's nominees. The crisis they created eventually led even to public criticism of their actions by Chief Justice Rehnquist during those years. Their delays this year may leave us well short even of their low point during President Clinton's first term, when the Republican Senate majority would only allow 17 judicial confirmations during the entire 1996 session. That was a Presidential election year and the end of President Clinton's first term. By contrast, this is just the first year of the Obama administration. We need to act on the judicial nominees on the Senate Executive Calendar without further delay. This year, we have witnessed unprecedented delays in the consideration of qualified and noncontroversial nominations. We have had to waste weeks seeking time agreements in order to consider nominations that were then confirmed unanimously. We have seen nominees strongly supported by their home State Senators, both Republican and Democratic, delayed for months and unsuccessfully filibustered. The 12 judicial nominations that have been given hearings and favorable consideration by the Senate Judiciary Committee and that remain stalled before the Senate are Beverly Martin of Georgia, nominated to the Eleventh Circuit; Joseph Greenaway of New Jersey, nominated to the Third Circuit; Edward Chen, nominated to the District Court for the Northern District of California; Dolly Gee, nominated to the District Court for the Central District of California; Richard Seeborg, nominated to the District Court for the Northern District of California, Barbara Keenan of Virginia, nominated to the Fourth Circuit; Jane Stranch of Tennessee, nominated to the Sixth Circuit; Thomas Vanaskie of Pennsylvania, nominated to the Third Circuit; Louis Butler, nominated to the District Court for the Western District of Wisconsin; Denny Chin of New York, nominated to the Second Circuit; Rosanna Malouf Peterson, nominated to the District Court for the Eastern District of Washington; and William Conley, nominated to the District Court for the Western District of Wisconsin. Acting on these nominations, we can confirm 13 nominees this month. In December 2001, a Democratic Senate majority proceeded to confirm 10 of President Bush's nominees and ended that year having confirmed 28 new judges nominated by a President of the other party. We achieved those results with a controversial and confrontational Republican President after a midyear change to a Democratic majority in the Senate. We did so in spite of the attacks of September 11; despite the anthrax-laced letters sent to the Senate that closed our offices; and while working virtually around the clock on the PATRIOT Act for 6 weeks. At the end of the Senate's 2001 session, only four judicial nominations were left on the Senate Executive Calendar, all of which were confirmed soon after the Senate returned in 2002. At the end of the first session of Congress during President Clinton's first term, just one judicial nominee was left on the Senate Executive Calendar. At the end of the President George H.W. Bush's first year in office, a Democratic Senate majority left just two judicial nominations pending on the Senate Executive Calendar. At the end of the first year of President Reagan's first term--a year in which the Senate confirmed 41 of his Federal circuit and district court nominees--not a single judicial nomination was left on the Senate Executive Calendar. In stark contrast, there are now 12 judicial nominees on the Senate Executive Calendar and no agreement from Senate Republicans to consider a single one. That is a significant change from our history and tradition of confirming judicial nominations that have been reported favorably by the Senate Judiciary Committee by the end of a session. The record of obstruction of the Senate Republicans is just as disappointing when we consider the executive nominations that have been reported by the Judiciary Committee. There are currently 15 executive nominations that have been reported favorably by the Senate Judiciary Committee pending on the Senate Executive Calendar, including nominations for Assistant Attorneys General to run three of the 11 divisions at the Department of Justice. Each of these nominations has been pending 4 months or longer. The President nominated Dawn Johnsen to lead the Office of Legal Counsel on February 11. Her nomination has been pending on the Senate Executive Calendar since March 19. That is the longest pending nomination on the calendar by over 2 months. We did not treat President Bush's first nominee to head the Office of Legal Counsel the same way. We confirmed Jay Bybee to that post only 49 days after he was nominated by President Bush, and only 5 days after his nomination was reported by the Senate Judiciary Committee. Mary Smith's nomination to be the Assistant Attorney General in charge of the Tax Division has been pending on the Senate's Executive Calendar since June 11--more than 6 months. We confirmed President Bush's first nomination to that position, Eileen O'Connor, only 57 days after her nomination was made and 1 day after her nomination was reported by the Senate Judiciary Committee. Her replacement, Nathan Hochman, was confirmed without delay, just 34 days after his nomination. Among the nominations still waiting for consideration is that of Christopher Schroeder, nominated on June 4 to be Assistant Attorney General for the Office of Legal Policy, OLP. Mr. Schroeder's nomination has been pending before the Senate since July of this year when he was reported by the Senate Judiciary Committee by voice vote and without dissent. There was no objection from the Republican members of the committee on his nomination, so it puzzles me why we cannot move to a vote. President Bush appointed four Assistant Attorneys General for the Office of Legal Policy. Each was confirmed expeditiously by the Senate. In fact, his first nominee to that post, Viet Dinh, was confirmed by a vote of 96 to 1 just 1 month after he was nominated and only a week after his nomination was reported by the Senate Judiciary Committee. Professor Schroeder's nomination has been pending for over 4 months. President Bush's three subsequent nominees to head OLP--Daniel Bryant, Rachel Brand, and Elisebeth Cook--were each confirmed by voice vote in a shorter time than Professor Schroeder's nomination has been pending. Senate Republicans should not further delay consideration of these important nominations. Returning to judicial nominations, I hope that instead of withholding consent and threatening filibusters of President Obama's nominees, Senate Republicans will treat President Obama's nominees fairly. I made sure that we treated President Bush's nominees more fairly than President Clinton's nominees had been treated. I want to continue that progress, but we need Republican cooperation to do so. I urge them to turn away from their partisanship and begin to work with the President and the Senate majority leader. President Obama has reached out and consulted with home State Senators from both sides of the aisle regarding his judicial nominees. Instead of praising the President for consulting with Republican Senators, the Senate Republican leadership has doubled back on what they demanded when a Republican was in the White House. No more do they talk about each nominee being entitled to an up-or-down vote. That position is abandoned and forgotten. Instead, they now seek to filibuster and delay judicial nominations. When President Bush worked with Senators across the aisle, I praised him and expedited consideration of his nominees. When President Obama reaches across the aisle, the Senate Republican leadership delays and obstructs his qualified nominees. Although there have been nearly 110 judicial vacancies this year on our Federal circuit and district courts around the country, only 10 vacancies have been filled. That is wrong. The American people deserve better. As I have noted, there are 12 more qualified judicial nominations awaiting Senate action on the Senate Executive Calendar. Another nomination should be considered by the Judiciary Committee this week. I hope that with the session drawing to a close Judge Rogeriee Thompson of Rhode Island will not be needlessly delayed. The Senate should do better and could if Senate Republicans would remove their holds and stop the delaying tactics. During President Bush's last year in office, we had reduced judicial vacancies to as low as 34, even though it was a Presidential election year. As matters stand today, judicial vacancies have spiked, and we will start 2010 with the highest number of vacancies on article III courts since 1994, when the vacancies created by the last comprehensive judgeship bill were still being filled. While it has been nearly 20 years since we enacted a Federal judgeship bill, judicial vacancies are nearing record levels, with 97 current vacancies and another 23 already announced. If we had proceeded on the judgeship bill recommended by the U.S. Courts to address the growing burden on our Federal judiciary and provide access to justice for all Americans, vacancies would stand at 160, by far the highest on record. I know we can do better. Justice should not be delayed or denied to any American because of overburdened courts and the lack of Federal judges. There is still time to act on these nominations before the Senate recesses this year. I hope Senate Republicans will lift their objections and allow us to proceed on the 27 nominations reported by the Judiciary Committee. Absent cooperation to confirm nominations, this Congress will be recorded in history as one of the least productive in the confirmation of judicial nominations. I hope the New Year will bring a renewed spirit of cooperation.

Mr. LEAHY

Mr. LEAHY. Mr. President, last week, the Senate Judiciary Committee approved the media shield bill in a bipartisan vote of 14 to 5. This legislation would establish a qualified privilege for journalists to protect their confidential sources and the public's right to know. At a time when the Senate is working to recognize the importance of protecting Americans' first amendment rights, I am proud to recognize a Burlington lawyer who was recently recognized by the Vermont Press Association for his lifetime commitment to the first amendment and the public's right to know. On December 3, 2009, Robert B. Hemley was awarded the Matthew Lyon Award during the Association's annual awards banquet in Montpelier, Vermont. As a fellow Matthew Lyon Award recipient, I share with Robert a passion about the need for each generation to defend the first amendment rights that are so crucial to all Vermonters and to every American. Robert has worked to bring greater transparency and accountability to our government by representing journalists and newspapers in instances in which they were improperly forced to testify in violation of the first amendment, and by helping to create the Vermont Coalition for Open Government. In each era there will always be much to do to bring greater openness and accountability to government of, by, and for the people. I am pleased to know Robert Hemley will continue to bring his expertise and dedication to this fight. I ask unanimous consent to have printed in the Record an article from the St. Albans Messenger.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to learn that, after 14 years of legal struggle, Ms. Rody Alvarado has finally received asylum in the United States. The details of Ms. Alvarado's case are shocking. She suffered from horrific domestic violence in her home country of Guatemala and sought protection in the United States under our asylum laws. Because persecution of this type had not previously been recognized as a basis for refugee or asylum protection, Ms. Alvarado was forced to fight a long legal battle to win her case. The administrations of three different Presidents--Clinton, Bush and Obama--have grappled with how to handle gender-based asylum claims, but the resolution of this case brings us closer to the end of this journey. Ms. Alvarado can finally feel safe here in the United States because she is no longer at risk of being deported to Guatemala. The Obama administration must now issue regulations to ensure that other victims of domestic violence whose abuse rises to the level of persecution can obtain the same protection as refugees or asylees. Ms. Alvarado fled Guatemala in 1995 after being beaten daily and raped repeatedly by her husband. When she became pregnant but refused to terminate her pregnancy, her husband kicked her repeatedly in the lower spine. Ms. Alvarado had previously tried to escape the abuse, seeking protection in another part of Guatemala, but her husband tracked her down and threatened to kill her if she left their home again. We know that Ms. Alvarado notified Guatemalan police at least five separate times, but the police refused to respond, telling her that her desperate situation was a domestic dispute that needed to be settled at home. Over the past 14 years, Ms. Alvarado's case has been considered by immigration judges, the Board of Immigration Appeals, BIA, five different Attorneys General, and three Secretaries of Homeland Security. Throughout this extensive consideration, the core facts of her case have never been disputed. All parties have agreed that Ms. Alvarado suffered extreme abuse at the hands of her husband and that the Guatemalan Government would not protect her. All parties agreed that she has a well-founded fear that she would be abused again if she was forced to return to Guatemala. The dispute in Ms. Alvarado's case centered on whether the abuse she suffered was persecution under the terms of the Refugee Convention and applicable U.S. law. To obtain protection in the United States, an asylum seeker must demonstrate that they have a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group. I first wrote to Attorney General Janet Reno in December 1999, when the BIA reversed Ms. Alvarado's grant of asylum, concluding that her abuse was not persecution on account of membership in a particular social group. This decision was particularly troubling because it left unclear what grounds, if any, could be applied to a victim of severe domestic abuse who cannot obtain the protection of her country of origin. I wrote to Attorney General Reno again in February and September 2000 asking her to exercise her authority to review the case, called Matter of R-A-, and to reverse the BIA's decision. Unfortunately, the case was not reversed at that time, and it then languished for years. I wrote to Attorney General Ashcroft in June 2004 asking him to work with the Department of Homeland Security, DHS, to issue regulations to govern cases such as Ms. Alvarado's and to then decide her case in accordance with such rules. When he was a nominee to be Attorney General in January 2005, I asked Mr. Alberto Gonzales to commit to taking up the case and resolving it if he was confirmed. Mr. Gonzales promised to work with DHS to finalize regulations but did not take any action during his years as Attorney General. Ten years after I and other Members of Congress first sought appropriate action and the fair resolution of this case, we celebrate the long-overdue outcome. While I am dismayed at the length of time Ms. Alvarado has lived with fear and uncertainty, the final resolution of this case gives me hope that abuse victims like Ms. Alvarado who meet the other conditions of asylum will be able to find safety in the United States. The Obama administration has laid out a welcomed, new policy in its legal briefs in this case, and I thank the President, Secretary Napolitano, and Attorney General Holder for bringing this case to such a positive resolution. Yet the administration's work is not done. It must issue binding regulations so that asylum seekers whose cases have been held in limbo for years can also be resolved and that future cases are not delayed in adjudication. I urge the administration to immediately initiate a process of notice and comment rulemaking so that asylum seekers, practitioners, and other experts can contribute to the formulation of new rules. Today, I commend Ms. Alvarado on the courage she has demonstrated over many years while seeking protection in the United States. I congratulate her and wish her all the best as she finally experiences true freedom from persecution and the full scope of liberties enjoyed by Americans.

Mr. LEAHY

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