Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on March 5, 2009 at 10 a.m., to conduct a hearing entitled ``American International Group: Examining What Went Wrong, Government Intervention, and Implications for Future Regulation.''

Mr. LEAHY. Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary be authorized to meet during the session of the Senate, to conduct an executive business meeting on Thursday, March 5, 2009, at 10 a.m. in room SD-226 of the Dirksen Senate Office Building.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session of the Senate on Thursday, March 5, 2009 at 9:30 a.m. in room 106 of the Dirksen Senate Office Building.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on March 5, 2009 at 2:30 p.m.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs' Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security be authorized to meet during the session of the Senate on Thursday, March 5, 2009, at 2:30 p.m. to conduct a hearing entitled, ``Lessons Learned: How the New Administration Can Achieve an Accurate and Cost-Effective 2010 Census.''

Mr. LEAHY

Mr. LEAHY. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 623, as Modified

Mr. LEAHY. Mr. President, how much time is available in opposition to this amendment?

Mr. LEAHY. Mr. President, I recall the young man who killed his parents and threw himself at the mercy of the court saying: You have to give me mercy, I am now an orphan. I have heard that line used before on this floor and I use it again in this instance because I hope we can tell the truth about what happened on the Emmett Till Unsolved Civil Rights Crime Act. I worked very hard over the last two years with Senator Dodd and Congressman Lewis to pass the Emmett Till Unsolved Civil Rights Crime Act to provide resources for the Department of Justice and Federal Bureau of Investigation to investigate and prosecute decades-old unsolved civil rights cold case crimes. It could have been law earlier had not Republican opposition obstructed its enactment. We tried to get this bill through the Senate. It was being held up. Now, after the efforts to stop it from becoming law in the first place, we are told: Oh, my gosh, my Emmett Till bill, which I love so much, you are not funding it right. That is not right. This should have been a noncontroversial bill and it should not have taken several Congresses to pass. Indeed, passage ended years of opposition by Senator Coburn and others across the aisle. In June 2007, we unsuccessfully attempted to get Senate consideration and passage of the bill by unanimous consent. Senator Coburn placed a hold on the Till bill. The Senator from Oklahoma also announced that he opposed the Till bill because the FBI is already investigating and prosecuting old civil rights cases and because crimes committed before 1970 cannot be prosecuted under most Federal civil rights statutes. Majority Leader Reid included the Emmett Till bill in the Advancing America's Priorities Act, S. 3297, last summer. It was still opposed by the Senator from Oklahoma who objected to its consideration. I worked for months to have it considered and passed as a separate stand alone measure. I have to thank Senator Dodd and Representative John Lewis for their leadership and hard work in persevering and getting it through the full Senate over the objection and the roadblocks of the Senator from Oklahoma. I was happy when he finally ended his opposition, after much public criticism, and I told him so at the time. After he lifted his hold, the full Senate passed the Till bill unanimously by voice vote. Senator Coburn announced that he ``can't convince'' his colleagues that ``there are plenty of funds'' at Justice to probe these old crimes, so he decided to lift his hold. I am glad that Senator Coburn finally ended his opposition to the Emmett Till bill. I know that he now likes to emphasize that he belatedly became a supporter of the bill, but that was after years of having stalled its passage. Regrettably, the current Coburn amendment appears to be as mischievous as was his unsuccessful amendment to the District of Columbia House voting rights bill last week. It should suffer the same fate. It should not delay or deter passage of the Omnibus appropriations bill that needs to be passed by the Senate and signed by the President this week. This special ``earmark'' that the Senator from Oklahoma is proposing is just not needed. Its functional impact if accepted would be to prevent enactment of the Omnibus appropriations bill this week and force it to be reconsidered by the House of Representatives. At a time when confidence and funding of our Nation's institutions is critical, we should not be playing games with funding. We need to get it done. We need to work together to solve the Nation's problems. In fact, this Omnibus appropriations bill increases funding for the Justice Department, specifically for the Civil Rights Division, and already increases funding available to Emmett Till-type investigations and grants. I doubt that anyone in the Senate is a stronger supporter of Federal assistance to State and local law enforcement than I. Providing that support will take place when the Omnibus appropriations bill is enacted and we can provide the increased funding at last year's appropriated levels and the funding in the continuing resolution. I believe the best way to move forward, if we support the Emmett Till bill and care to solve unsolved civil rights era crimes, is to pass the Omnibus appropriations bill without adding this additional, unnecessary ``earmark.'' The able chair of the Appropriations Subcommittee, a long-time supporter of the Emmett Till bill, has set forth, not only does the Civil Rights Division get more funding under the bill, not only does the inspector general receive more funding under the bill, but $30 million is available under the bill for competitive funds for States and local jurisdictions, including for investigating and prosecuting civil rights violations. In addition, the increased funding for U.S. attorneys' offices, something for which some of us have been fighting for years, is significant; the funding for grants to State forensic labs is significant; and there is more than $150 million to reduce the backlog of offender profiles and untested DNA, something we have fought for in the Debbie Smith Act for years. Does anybody doubt Attorney General Holder is sensitive to these matters? Of course he is. Our first African-American Attorney General does not need to be lectured or mandated on investigating heinous crimes committed against African Americans during the civil rights era. He has spoken about his dedication to restoring the Civil Rights Division. He will demonstrate his commitment. Indeed, in his recent letter to Chairwoman Mikulski he reiterates the Justice Department's ``wholehearted'' support for the goals of the Emmett Till Unsolved Civil Rights Crime Act, notes some of the actions the Department has already taken, and states his ``personal commitment'' to pursue these matters. Ironically, Senator Coburn voted against the nomination of Eric Holder, as well. I join Chairman Inouye, the distinguished chair of the Appropriations Committee; Chairwoman Mikulski, the chair of the Appropriations Subcommittee; Senator Dodd, the author of the Emmett Till Unsolved Civil Rights Crime Act; and the majority leader in opposing this amendment at this time on this legislation. Our interest is actually in going after these unsolved crimes, not in trying to add a poison pill amendment to the bill on the Senate floor. That is what we did, we fought for years over the objection of the Senator from Oklahoma to get the Emmett Till bill passed. Let's not now kill it with an amendment on the floor.

Mr. LEAHY. Mr. President, I was going back over the notes of what I said. I don't find anything where I ascribe any motives to the Senator from Oklahoma. I am shocked that he thought I had. If there is any implication in the record that I was ascribing motive to my friend and valued member of the Senate Judiciary Committee, it certainly was not intended. I did, however, relate the fact that he held up the bill for some considerable period of time. That is a fact. That is in the Record. That is known. I will let him explain why he held it up. I ascribe no motives. In fact, in my 36 years in the Senate, I have not ascribed motives to any colleague of mine, even if he or she placed a hold on a bill. I am not about to start now. The fact is, the Senator from Oklahoma did place a hold on the important Emmett Till bill. The fact is, the full Senate did pass it over his objection. The fact is, we do have a letter from Eric Holder, the Attorney General, promising that his Justice Department has already, and will continue, to commit its resources towards prosecuting civil rights era cold cases. The fact is, the money we want to have is already in the bill we consider today. And the fact is, we have to pass this bill with the appropriations in here, including for the Department of Justice, so we can move forward as a nation. We must ensure that the Emmett Till bill is more than simply a statute. It must also be an answer to the hopes of all Americans that justice might finally occur in so many of the unsolved civil rights cases. Mr. President, I ask unanimous consent to have printed in the Record the letter from Eric Holder.

Mr. LEAHY. Mr. President, how much time remains?

Mr. LEAHY. Mr. President, I withhold the remainder of my time.

Mr. LEAHY. Mr. President, there is very little time left to the Senator from Vermont. I serve on both the Appropriations Committee and also as Chairman of the Senate Judiciary Committee, the committee that has oversight over the Department of Justice. The amendment of the Senator from Oklahoma to fund the Emmett Till bill is unnecessary and would kill the overall appropriations. I will oppose it.

Mr. LEAHY

Mr. LEAHY. Mr. President, ingenuity and innovation have been a cornerstone of the American economy from the time Thomas Jefferson issued the first patent to today. The Founding Fathers recognized the importance of promoting innovation, and the Constitution explicitly grants Congress the power to ``promote the progress and science and useful arts, by securing for limited times to . . . inventors the exclusive right to their respective . . . discoveries.'' The discoveries made by American inventors and research institutions, commercialized by our companies, and protected and promoted by our patent laws have made our system the envy of the world. The legislation I introduce today with Senator Hatch, and many others and from across the political spectrum, will keep America in its longstanding position at the pinnacle of innovation. This bill will establish a more efficient and streamlined patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs, while making sure no party's access to court is denied. Innovation and economic development are not uniquely Democratic or Republican objectives. I have been working on the Patent Reform Act on a bipartisan basis with Senator Hatch and others for several years--and Senator Hatch and I worked on various patent issues for many years before that. Last Congress, I introduced, along with Senator Hatch, the Patent Reform Act of 2007, which is the precursor to the legislation we introduce today. That bill was the subject of consideration and amendments over four weeks of mark-up sessions in the Senate Judiciary Committee. After the Judiciary Committee voted to approve the bill in July 2007, we continued to hold numerous meetings, briefings, and stakeholder roundtables--again, on a bipartisan basis. The legislation we introduce today picks up where we left off in those discussions. We have made some changes from the Committee- approved bill in response to concerns we heard from groups ranging from labor unions to small inventors to manufacturers. We have removed the requirement that all patent applications be published 18 months after they are filed and we have removed the requirement for Applicant Quality Submissions. We have also adopted the House approach to improving the current inter partes reexamination process, rather than creating a new second window post-grant review. Perhaps the most hotly debated topic in the patent reform debate last Congress was the damages provision. The reasonable royalty language in the bill we introduce today is identical to the language approved by the Judiciary Committee last Congress. While I strongly support this language, I am prepared to continue the conversation and debate from the last Congress in order to find the best language we can. There have been several positive developments since the Committee voted to report the legislation in July 2007. Senator Specter has made constructive suggestions about a ``gate keeping'' role for the court in damage calculations. The Supreme Court's Quanta decision may offer a useful way of describing the truly inventive feature of a patent. There is much work to do on this provision and I am optimistic that by continuing to work together, we will find the right language. During consideration of the Patent Reform Act of 2007 in Committee last Congress, I offered an amendment, which was adopted, to codify the inequitable conduct doctrine. Senator Hatch has asked that the provision be removed on introduction this year. I understand that the issue of inequitable conduct is very important to Senator Hatch, and I will work with him to address any statutory changes. It has been more than 50 years since Congress significantly updated the patent system. In the decades since, our economy has changed dramatically. No longer is the economy defined only by assembly lines and brick-and-mortar production. We are living in the Information Age, and the products and processes that are being patented are changing as quickly as the times themselves. A patent system developed for a 1952 economy, needs to be reconsidered in light of 21st century realities, while staying true to our constitutional imperative. The patent laws that were sufficiently robust for promoting innovation and economic development are now actually impeding growth, harming innovators and raising prices on consumers. The array of voices heard in this debate--representing virtually all sectors of the economy and all interests in the patent system--have certainly not been uniform, but three major areas of concern with the current patent system can be distilled from their discussions. First, there is significant concern that the U.S. Patent and Trademark Office, PTO, is issuing low quality patents. Patent examiners are facing a difficult task given the explosion in the number of applications and the increasing complexity of those applications. When Congress last overhauled the patent system in 1952, the PTO received approximately 60,000 patent applications; in 2006, it received 440,000. Clearly, this puts a strain on the system and understandably affects the quality of patents issued. Second, the costs and uncertainty associated with patent litigation have escalated in recent years, and are creating an unbearable drag on innovation. Damage awards are inconsistent and too often fail to focus on the value of the invention to the infringing product. This disconnect and uncertainty is a problem that also leads to unreasonable posturing during licensing negotiations. Third, as business and competition become more global, patent applicants are increasingly filing patent applications in other countries for protection of their inventions. The filing system in the United States, known as ``first-to-invent,'' differs from that in other patent-issuing jurisdictions, which have ``first-to-file'' systems. This causes confusion and inefficiencies for American companies and innovators. The Patent Reform Act of 2009 promotes innovation, and will improve our economy, by addressing these impediments to growth. As the administration endeavors to guide the economy out of the recession, as payrolls shrink and the jobless rate rises, Congress cannot afford to sit idly by while innovation--the engine of our economy--is impeded by outdated laws. Our legislation ensures that, in the Information Age, we have the legal landscape necessary for our innovators to flourish. It will improve the quality of patents and remove the ambiguity from the process of litigating patent claims, which will promote innovation stifled by the current system. As innovation is encouraged, and excessive litigation costs are removed, competition will increase and the consumer cost of products will fall. In this way, the bill directly benefits both creators and consumers of inventive products. Patent reform is ultimately about economic development. It is about jobs, it is about innovation, and it is about consumers. All benefit under a patent system that reduces unnecessary costs, removes inefficiencies, and holds true to the vision of our Founders that Congress should establish a national policy that promotes the progress of science and the useful arts. When Thomas Jefferson issued that first patent in 1790--a patent that went to a Vermonter--no one could have predicted how the American economy would develop and what changes would be needed for the law to keep pace, but the purpose then remains the purpose today--promoting progress. As I said when I introduced the Patent Reform Act last Congress: If we are to maintain our position at the forefront of the world's economy, if we are to continue to lead the world in innovation and production, if we are to continue to benefit from the ideas of the most creative citizens, then we must have a patent system that produces high quality patents, that limits counterproductive litigation over those patents, and that makes the entire system more streamlined and efficient. Now is the time to bolster our role as the world leader in innovation. Now is the time to create jobs at home. Now is the time for Congress to act on patent reform. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, ingenuity and innovation have been a cornerstone of the American economy from the time Thomas Jefferson issued the first patent to today. The Founding Fathers recognized the importance of promoting innovation, and the Constitution explicitly grants Congress the power to ``promote the progress and science and useful arts, by securing for limited times to . . . inventors the exclusive right to their respective . . . discoveries.'' The discoveries made by American inventors and research institutions, commercialized by our companies, and protected and promoted by our patent laws have made our system the envy of the world. The legislation I introduce today with Senator Hatch, and many others and from across the political spectrum, will keep America in its longstanding position at the pinnacle of innovation. This bill will establish a more efficient and streamlined patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs, while making sure no party's access to court is denied. Innovation and economic development are not uniquely Democratic or Republican objectives. I have been working on the Patent Reform Act on a bipartisan basis with Senator Hatch and others for several years--and Senator Hatch and I worked on various patent issues for many years before that. Last Congress, I introduced, along with Senator Hatch, the Patent Reform Act of 2007, which is the precursor to the legislation we introduce today. That bill was the subject of consideration and amendments over four weeks of mark-up sessions in the Senate Judiciary Committee. After the Judiciary Committee voted to approve the bill in July 2007, we continued to hold numerous meetings, briefings, and stakeholder roundtables--again, on a bipartisan basis. The legislation we introduce today picks up where we left off in those discussions. We have made some changes from the Committee- approved bill in response to concerns we heard from groups ranging from labor unions to small inventors to manufacturers. We have removed the requirement that all patent applications be published 18 months after they are filed and we have removed the requirement for Applicant Quality Submissions. We have also adopted the House approach to improving the current inter partes reexamination process, rather than creating a new second window post-grant review. Perhaps the most hotly debated topic in the patent reform debate last Congress was the damages provision. The reasonable royalty language in the bill we introduce today is identical to the language approved by the Judiciary Committee last Congress. While I strongly support this language, I am prepared to continue the conversation and debate from the last Congress in order to find the best language we can. There have been several positive developments since the Committee voted to report the legislation in July 2007. Senator Specter has made constructive suggestions about a ``gate keeping'' role for the court in damage calculations. The Supreme Court's Quanta decision may offer a useful way of describing the truly inventive feature of a patent. There is much work to do on this provision and I am optimistic that by continuing to work together, we will find the right language. During consideration of the Patent Reform Act of 2007 in Committee last Congress, I offered an amendment, which was adopted, to codify the inequitable conduct doctrine. Senator Hatch has asked that the provision be removed on introduction this year. I understand that the issue of inequitable conduct is very important to Senator Hatch, and I will work with him to address any statutory changes. It has been more than 50 years since Congress significantly updated the patent system. In the decades since, our economy has changed dramatically. No longer is the economy defined only by assembly lines and brick-and-mortar production. We are living in the Information Age, and the products and processes that are being patented are changing as quickly as the times themselves. A patent system developed for a 1952 economy, needs to be reconsidered in light of 21st century realities, while staying true to our constitutional imperative. The patent laws that were sufficiently robust for promoting innovation and economic development are now actually impeding growth, harming innovators and raising prices on consumers. The array of voices heard in this debate--representing virtually all sectors of the economy and all interests in the patent system--have certainly not been uniform, but three major areas of concern with the current patent system can be distilled from their discussions. First, there is significant concern that the U.S. Patent and Trademark Office, PTO, is issuing low quality patents. Patent examiners are facing a difficult task given the explosion in the number of applications and the increasing complexity of those applications. When Congress last overhauled the patent system in 1952, the PTO received approximately 60,000 patent applications; in 2006, it received 440,000. Clearly, this puts a strain on the system and understandably affects the quality of patents issued. Second, the costs and uncertainty associated with patent litigation have escalated in recent years, and are creating an unbearable drag on innovation. Damage awards are inconsistent and too often fail to focus on the value of the invention to the infringing product. This disconnect and uncertainty is a problem that also leads to unreasonable posturing during licensing negotiations. Third, as business and competition become more global, patent applicants are increasingly filing patent applications in other countries for protection of their inventions. The filing system in the United States, known as ``first-to-invent,'' differs from that in other patent-issuing jurisdictions, which have ``first-to-file'' systems. This causes confusion and inefficiencies for American companies and innovators. The Patent Reform Act of 2009 promotes innovation, and will improve our economy, by addressing these impediments to growth. As the administration endeavors to guide the economy out of the recession, as payrolls shrink and the jobless rate rises, Congress cannot afford to sit idly by while innovation--the engine of our economy--is impeded by outdated laws. Our legislation ensures that, in the Information Age, we have the legal landscape necessary for our innovators to flourish. It will improve the quality of patents and remove the ambiguity from the process of litigating patent claims, which will promote innovation stifled by the current system. As innovation is encouraged, and excessive litigation costs are removed, competition will increase and the consumer cost of products will fall. In this way, the bill directly benefits both creators and consumers of inventive products. Patent reform is ultimately about economic development. It is about jobs, it is about innovation, and it is about consumers. All benefit under a patent system that reduces unnecessary costs, removes inefficiencies, and holds true to the vision of our Founders that Congress should establish a national policy that promotes the progress of science and the useful arts. When Thomas Jefferson issued that first patent in 1790--a patent that went to a Vermonter--no one could have predicted how the American economy would develop and what changes would be needed for the law to keep pace, but the purpose then remains the purpose today--promoting progress. As I said when I introduced the Patent Reform Act last Congress: If we are to maintain our position at the forefront of the world's economy, if we are to continue to lead the world in innovation and production, if we are to continue to benefit from the ideas of the most creative citizens, then we must have a patent system that produces high quality patents, that limits counterproductive litigation over those patents, and that makes the entire system more streamlined and efficient. Now is the time to bolster our role as the world leader in innovation. Now is the time to create jobs at home. Now is the time for Congress to act on patent reform. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Committee on the Judiciary has adopted rules governing its procedures for the 111th Congress. Pursuant to rule XXVI, paragraph 2, of the Standing Rules for the Senate, I ask unanimous consent that a copy of the committee rules be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I so yield without losing my right to the floor.

Mr. LEAHY. Mr. President, the Senate now considers a bill to provide voting rights to citizens of the Nation's Capital city. I am proud to cosponsor the District of Columbia House Voting Rights Act of 2009. This important legislation would end over 200 years of unfair treatment to nearly 600,000 Americans living in the District of Columbia, a population roughly equal to the size of Vermont, and give them a vote in the House of Representatives. Earlier this week, the Senate finally broke through the Republican filibuster of this legislation that stalled its consideration in the last Congress. That filibuster prevented its passage, despite the bipartisan support of 57 Senators, a majority of the Senate. The vote earlier this week to overcome that filibuster is an encouraging step toward guaranteeing all citizens representation in our Government. Last Congress, President Bush threatened to veto this bill. This time, when the Congress passes this bill, I am confident President Obama, who cosponsored and voted for the bill when serving in this body as a Senator from Illinois, will sign it into law. I commend Congresswoman Eleanor Holmes Norton and Senator Hatch for having worked out a voting rights bill for the District of Columbia that can and should pass with bipartisan support. The bill we consider today would give the District of Columbia delegate a vote in the House of Representatives. To remove partisan political opposition, it accords Utah an additional vote in the House, as well. As a young lawyer, Congresswoman Norton worked for civil rights and voting rights around the country. It is a cruel irony that as the District of Columbia's longtime representative in Congress, she still does not yet have the right to vote. She is a strong voice in Congress, but the citizens living in the Nation's Capital deserve her vote on their behalf to count. I believe this legislation is within congressional power as provided in the Constitution. This is not a partisan conclusion. Lawyers from across the political spectrum, from Judge Patricia Wald to Kenneth Starr and former Assistant Attorney General Viet Dinh, agree that this action is constitutional. After careful study, we have all concluded that Congress has the constitutional authority to grant voting rights in the House of Representatives to the representative of the citizens of the District of Columbia. Last Congress, the Judiciary Committee held a hearing on this issue, and heard compelling testimony from constitutional experts that such a bill is constitutional. They highlighted the fact that Congress's greater power to confer statehood on the District certainly encompasses the lesser action to grant District residents voting rights in the House of Representatives. Moreover, Congress has often treated the District of Columbia as a ``State'' for a variety of purposes. Congresswoman Eleanor Holmes Norton reminded us that ``Congress has not had the slightest difficulty in treating the District as a State, with its laws, its treaties, and for constitutional purposes.'' Examples of these actions include a revision of the Judiciary Act of 1789 that broadened Article III diversity jurisdiction to include citizens of the District, even though the Constitution expressly provides that Federal courts may hear cases ``between citizens of different States.'' Congress has also treated the District as a ``State'' for purposes of congressional power to regulate commerce ``among the several States.'' The sixteenth amendment, the Federal income tax amendment, grants Congress the power directly to tax incomes ``without apportionment among the several States'' and that taxing power has been interpreted to apply to residents of the District. The District of Columbia car license plates or tags remind us every day that District residents suffer from ``Taxation Without Representation,'' a battle cry during the founding days of this Republic. Hundreds of thousands of Americans residing in the District of Columbia are required to pay Federal taxes. In fact, the District of Columbia residents pay the second highest Federal taxes per capita in the Nation, yet residents have no say in how those dollars are spent. We must also remember that many who serve bravely in our armed services come from the District of Columbia. The brave men and women who defend our values and freedoms abroad must also enjoy those same rights here at home. Opponents of this bill claim that the citizens of the District of Columbia do indeed have representation, that they fall under the jurisdiction of all 100 Senators and 435 Representatives and are sufficiently provided for by Congress. To that argument I say that there is no substitute for direct representation in Congress. How many of us in either party would be willing to go back to our State and say ``You do not need your representatives because other States are going to represent you?'' I do not believe that would go over well in the Commonwealth of Pennsylvania. Chairman Lieberman knows that would not go over well in his State of Connecticut. I guarantee you that would not go over well in the State of Vermont. Similarly, the citizens of the District of Columbia also deserve the chance to elect a representative who has not only a voice in Congress, but a vote as well. Over 50 years ago, after overcoming filibusters and obstruction, the Senate rightfully passed the Civil Rights Act in 1957 and the Voting Rights Act in 1965. Let us build on that tradition and extend the reach and resolve of America's representative democracy. I am pleased that we took the first step in overcoming the filibuster of this legislation, and I urge all Senators to support the final passage of this bill without further delay.

Mr. LEAHY

Mr. LEAHY. When historians look back at the last 8 years, they are going to evaluate one of the most secretive administrations in the history of the United States. Now, the citizens of this country have said we should have change, and we should. But we also know that the past can be prologue unless we set things right. In the last administration, there was a justification for torture. It presided over the abuse at Abu Ghraib, destroyed tapes of harsh interrogations, and conducted extraordinary renditions that sent people to countries that permit torture during interrogation. They used the Justice Department, our premiere law enforcement agency, to subvert the intent of congressional statutes, even to subvert nonpartisan prosecutions, and instead to use them in partisan ways to try to affect the outcome of elections. They wrote secret law to give themselves legal cover for these misguided policies, policies that could not withstand scrutiny if brought to light. Nothing has done more to damage America's standing and moral authority than the revelation that during the last 8 years we abandoned our historic commitment to human rights by repeatedly stretching the law and the bounds of Executive power to authorize torture and cruel treatment. As President Obama said to Congress and the American people last night, ``if we're honest with ourselves, we'll admit that for too long we have not always met'' our responsibilities. Now, the President said that about the economy, but the same holds true here. It is only by understanding how we arrived at this moment that we can move forward. How can we restore our moral leadership and ensure transparent government if we ignore what has happened? There has been discussion, and in some cases disagreement, on how best to do this. There are some who resist any effort to investigate the misdeeds of the recent past. Indeed, some have tried to extract a devil's bargain from Attorney General Holder, a commitment that he would not prosecute for anything that happened on President Bush's watch. That is a pledge no prosecutor should give, and, to his credit, Eric Holder did not. There are others who say that regardless of the cost in time, resources, and unity, we have to prosecute these administration officials to lay down a marker. The courts are already considering congressional subpoenas that have been issued and claims of privilege and legal immunities, and they will for some time. Over my objections, Congress has already passed laws granting immunity to those who facilitated warrantless wiretapping and conducted cruel interrogations. The Department of Justice issued legal opinions justifying these executive branch excesses which, while legally faulty, would undermine attempts to prosecute. A failed attempt to prosecute for this conduct might be the worst result of all if it is seen as justifying abhorrent actions. Given the steps Congress and the executive have already taken to shield this conduct from accountability, that is a possible outcome. The alternative to these approaches is a middle ground, a middle ground I spoke of at Georgetown University a little over 2 weeks ago. That middle ground would involve the formation of a commission of inquiry dedicated to finding out what happened. Such a commission's objective would be to find the truth. People would be invited to come forward and share their knowledge and experiences, not for the purpose of constructing criminal indictments, but to assemble the facts, to know what happened and to make sure mistakes are not repeated. I have seen what happened before in prosecutions. We don't find the full truth. We prosecute those at the bottom of the chair of command, but we don't find out what those above did. While many are focused on whether crimes were committed, it is just as important to learn if significant mistakes were made, regardless of whether they can be proven beyond a reasonable doubt to a unanimous jury to be criminal conduct. We compound the serious mistakes already made if we limit our inquiry to criminal investigations and trials. Moreover, it is easier for prosecutors to net those far down the ladder than those at the top who set the tone and the policies. We do not yet know the full extent of our government's actions in these areas, and we must be sure that an independent review goes beyond the question of whether crimes were committed, to the equally important assessment of whether mistakes were made so we may endeavor not to repeat them. As I have said, we must read the page before we turn it. Vice President Dick Cheney continues to assert unilaterally that the Bush administration's tactics, including torture, were appropriate and effective. But interested parties' characterizations and self-serving conclusions are not facts and are not the unadulterated truth. We cannot let those be the only voices heard, nor allow their declarations to serve as historical conclusions on such important questions. An independent commission can undertake this broader and fundamental task. I am talking about this process with others in Congress, with outside groups and experts, and I have begun to discuss this with the White House as well. I am not interested in a commission of inquiry comprised of partisans, intent on advancing partisan conclusions. Rather, we need an independent inquiry that is beyond reproach and outside of partisan politics to pursue and find the truth. Such a commission would focus primarily on the subjects of national security and executive power in the government's counterterrorism effort. We have had successful oversight in some areas, but on these issues, including harsh interrogation tactics, extraordinary rendition and executive override of the laws, the last administration successfully kept many of us in the dark about what happened and why. President Obama issued significant executive orders in his first days in office, looking to close Guantanamo and secret prisons, banning the use of harsh interrogation techniques and forming task forces to review our detainee and interrogation policies. I support his decisions, and I am greatly encouraged by his determination to do the hard work to determine how we can reform policies in these areas to be lawful, effective and consistent with American values. My proposal for a commission of inquiry would address the rest of the picture, which is to understand how these types of policies were formed and exercised in the last administration, to ensure that mistakes are not repeated. I am open to good ideas from all sides as to the best way to set up such a commission and to define its scope and goals. A recent Gallup poll showed that 62 percent of Americans favor an investigation of these very issues. Respected groups including Human Rights First, the Constitution Project and thoughtful Senators, including Senator Whitehouse and Senator Feingold, have also embraced this idea. The determination to look beyond the veil that has so carefully concealed the decision making in these areas is growing. Next Wednesday, the Judiciary Committee will hold a hearing to explore these ideas and to continue the conversation about what we can do moving forward. Two years ago I described the scandals at the Bush-Cheney-Gonzales Justice Department as the worst since Watergate. They were. We are still digging out from the debris they left behind while those in the last administration continue to defend their policies, knowing full well that we do not even know the full extent of what those polices were or how they were made. We cannot be afraid to understand what we have done if we are to remain a nation equally vigilant in defending both our national security and our Constitution. I hope all Members of Congress will give serious consideration to these difficult questions. I argue it will be the quintessential American thing to do.

Mr. LEAHY

Mr. LEAHY. Mr. Presdient, this week, one of the indomitable artists of our age will take the stage of the Kennedy Center Concert Hall, as the great pianist Leon Fleisher teams up with the London Philharmonic Orchestra. His range, commanding technique and total sense of the music's natural shape and scope will surely captivate the audience. This is a fitting occasion to take note of a great artist, teacher and humanitarian who, through his playing, has touched the souls of so many. In the early years of his career, Leon Fleisher astounded audiences with a golden sound. His career then seemed tragically cut short when he began suffering from a rare neurological condition that rendered his right hand unable to play. Instead of withdrawing from the musical world, Leon Fleisher remained in close contact with music through conducting, teaching and playing scores specially written for pianists who lost use of their right hands. He persisted in the effort to play the full concert repertoire, and some novel medical treatments eventually helped him regain full use of both hands. It is a classic American journey, tracing a path out of despair to triumph. In Leon Fleisher's sense of determination, dedication, vision and skill, there is much for all of us to both admire and emulate. My wife Marcelle and I were delighted to sit next to him at a reception that honored his lifetime of achievement. We thoroughly enjoyed getting to know this stately and cordial artist, a man of great intelligence, modesty and warmth. Leon Fleisher has been playing across the country with full use of his hands for several years now. We are fortunate to be able to hear again how he plumbs the depths of every musical score, revealing something about ourselves through his music making. I know the Senate joins me in congratulating and recognizing Leon Fleisher's incredible contributions to the vibrant cultural fabric of our country.

Mr. LEAHY

Mr. LEAHY. Mr. President, during the past year, I and other Senators have urged the Government of Kenya to effectively address reports of egregious misconduct by its police and military forces, including torture and summary executions. The Mount Elgon killings, culminating in the slaughter of some 200 people by the police and army soldiers in 2008, were particularly appalling, yet the government has yet to conduct a credible, transparent, thorough investigation. We now have the report of the United Nations Special Rapporteur, which confirms, again, the conclusions of multiple human rights organizations. I would hope that the Government of Kenya recognizes that it is in its interest, and that it has a responsibility, to promptly implement the Special Rapporteur's recommendations. Kenya is an ally and friend of the United States. In fact, we are training some of Kenya's security forces. It is imperative that these violations be addressed urgently and decisively, and that the individuals involved in these atrocities, including those who gave the orders, are brought to justice. I ask unanimous consent that a press release on the Special Rapporteur's report be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, the Congress considers critical legislation to renew America's promise of prosperity and security for all of its citizens. I am pleased that the greatly needed relief provided in the American Recovery And Reinvestment Act includes an investment in health information technology that takes meaningful steps to protect the privacy of all Americans. I have long held the view that American innovation can--and should-- play a vital role in revitalizing our economy and in improving our Nation's health care system. That is why I have worked so hard with the lead sponsors of this bill to makes sure that privacy was addressed at the outset, as our Nation moves towards a national health information technology system. I commend the lead sponsors of this legislation in the House and Senate, Majority Leader Reid, and Speaker Pelosi for making sure that the economic recovery package includes meaningful privacy safeguards for electronic health records. I also commend the many stakeholders, including, the Center for Democracy & Technology, the Vermont Information Technology Leaders, Inc., Consumers Union, the American Civil Liberties Union and Microsoft, that have advocated tirelessly for meaningful health IT privacy protections in this legislation. The privacy protections in this legislation are essential to a successful national health IT system. Without adequate safeguards to protect health privacy, many Americans would simply not seek the medical treatment that they need for fear that their sensitive health information will be disclosed without their consent. Likewise, health care providers who perceive the privacy risks associated with health IT systems as inconsistent with their professional obligations would avoid participating in a national health IT system. The economic recovery package includes several of my recommendations to better protect Americans' health information privacy. First, the provisions give each and every American the right to access his or her own electronic health records, and the right to timely notice of data breaches involving their health information. The recovery package also imposes critical restrictions on the sale of sensitive health data and on the use of Americans' health data for marketing purposes. Lastly, the legislation makes sure that the Secretary of the Department of Health and Human Services receives input from individuals with specific expertise in health information privacy and security, as the Secretary develops a national health information technology system. These and many other privacy safeguards in the bill will help tackle the difficult, but essential task of ensuring meaningful health information privacy for all Americans. But, we can--and should--do more. There is much more to be done to ensure that Americans have greater control over their own electronic health records. Another critical issue is the use of new technologies to better secure sensitive health records, so that data breaches involving health and other sensitive personal data do not occur in the first place. Yesterday, we celebrated the bicentennial of the birth of our Nation's 16th President--Abraham Lincoln--who once remarked that ``you cannot escape the responsibility for tomorrow by evading it today.'' We all have a responsibility to ensure quality health care that is both efficient and respectful of all Americans' privacy rights. I am pleased that the Congress acted to address the issue of health information privacy at the outset of the ambitious effort to fully digitize America's health records during the next 5 years. During the months and years ahead, Congress must build upon this early privacy success with more work on health information privacy on behalf of all Americans.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join Senator Specter in the introduction of two bills, S. 437 and S. 440, that will correct inconsistencies and provide fairness to lawyers and their clients under the Federal Tax Code. Currently, attorneys who take on contingency fee cases, and advance their clients funds for court costs, witnesses, or other expenses, cannot deduct these expenses as ordinary business expenses at the time they are made. Instead, attorneys who advance these costs may not take a deduction until the case for which they are advanced is resolved. In most cases this is a timeframe of several years. This results in an attorney carrying the burden of these costs from year to year until the case is resolved. For many small law firms or solo practitioners, this is a significant burden. Where attorneys are advancing costs to clients so that those clients may pursue their rights in court, they deserve to be treated as any other small business owner. This disparate treatment is inequitable and correcting it will make legal representation more easily provided by attorneys and more available to clients. The other bill we introduce today helps clients who have been awarded funds through a contingency fee arrangement. Under current tax law, punitive damages awards and awards to a plaintiff resulting from certain claims are subject to Federal taxation for the entire amount of the award, even if the plaintiff then uses a portion to satisfy a contingency fee agreement. The result is that the portion of an award to a plaintiff in a contingency fee arrangement that then goes to an attorney is taxed twice--once through the plaintiff and again through the attorney. This legislation will allow a plaintiff who has recovered an award to take an above the line deduction for the portion of his or her award that will be transmitted to the attorney who provided the representation. This is a commonsense solution and where an individual has suffered an injury and will rely on his or her award it is sound policy to reduce this unnecessary and duplicative tax burden. Neither of these bills gives any special treatment to attorneys or their clients. Rather, in combination, they will help attorneys provide more representation to clients who by virtue of their financial or other circumstances must enter a contingency fee arrangement, and will allow a greater amount of funds recovered to be put to use by the individual for whose benefit they were awarded. I thank Senator Specter for introducing this legislation and I hope all Senators will join us in supporting these sensible corrections to our Tax Code.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join Senator Specter in the introduction of two bills, S. 437 and S. 440, that will correct inconsistencies and provide fairness to lawyers and their clients under the Federal Tax Code. Currently, attorneys who take on contingency fee cases, and advance their clients funds for court costs, witnesses, or other expenses, cannot deduct these expenses as ordinary business expenses at the time they are made. Instead, attorneys who advance these costs may not take a deduction until the case for which they are advanced is resolved. In most cases this is a timeframe of several years. This results in an attorney carrying the burden of these costs from year to year until the case is resolved. For many small law firms or solo practitioners, this is a significant burden. Where attorneys are advancing costs to clients so that those clients may pursue their rights in court, they deserve to be treated as any other small business owner. This disparate treatment is inequitable and correcting it will make legal representation more easily provided by attorneys and more available to clients. The other bill we introduce today helps clients who have been awarded funds through a contingency fee arrangement. Under current tax law, punitive damages awards and awards to a plaintiff resulting from certain claims are subject to Federal taxation for the entire amount of the award, even if the plaintiff then uses a portion to satisfy a contingency fee agreement. The result is that the portion of an award to a plaintiff in a contingency fee arrangement that then goes to an attorney is taxed twice--once through the plaintiff and again through the attorney. This legislation will allow a plaintiff who has recovered an award to take an above the line deduction for the portion of his or her award that will be transmitted to the attorney who provided the representation. This is a commonsense solution and where an individual has suffered an injury and will rely on his or her award it is sound policy to reduce this unnecessary and duplicative tax burden. Neither of these bills gives any special treatment to attorneys or their clients. Rather, in combination, they will help attorneys provide more representation to clients who by virtue of their financial or other circumstances must enter a contingency fee arrangement, and will allow a greater amount of funds recovered to be put to use by the individual for whose benefit they were awarded. I thank Senator Specter for introducing this legislation and I hope all Senators will join us in supporting these sensible corrections to our Tax Code.

Mr. LEAHY

Mr. LEAHY. Mr. President, I wish to state my strong support of the economic recovery plan because the American people and their communities need it to create jobs, to stabilize the economy, and to protect those who have been most hurt by the current global economic and financial crises. Many Americans, especially my fellow Vermonters who have watched this process, look at the resistance the economic recovery plan has met from many on the other side of the aisle, and they are somewhat dispirited. They remember how readily Congress rubberstamped hundreds of billions of dollars the previous administration earmarked for Iraq. Now they see how difficult it has been to get bipartisan approval for investments here at home that are desperately needed to jump start an economy that is in the midst of the worst economic crisis since the Great Depression. I call on fellow Senators--who were willing and eager to vote for billions of dollars to rebuild the infrastructure of Iraq, who were willing to vote for billions of dollars to create jobs in Iraq, who were willing to vote for billions of dollars to help law enforcement in Iraq--to focus on the needs we have here at home. Let's spend some of that money in America to repair our infrastructure, to create jobs in America, and to help law enforcement in America. No one disputes the clear fact that we are confronting the most severe economic problem we have had in generations. The U.S. economy has been in recession since December 2007. America's GDP declined 3.8 percent in the fourth quarter of 2008, the steepest drop since 1982. The United States lost 2.6 million jobs last year, the most since 1945. Last week we learned the U.S. economy shed almost 600,000 jobs in January, putting the unemployment rate at 7.6 percent. In Vermont, not only has the amount of credit available to small businesses shrunk significantly, but our unemployment rate jumped to 6.4 percent in December. That is the highest it has been in 15 years. Vermont is not alone in this struggle. Workers, businesses, State and local governments all across the country face mounting debt, slumping orders, and sagging budgets. To respond to this extraordinary crisis, I agree with President Obama and the vast majority of Americans that we have to act quickly and responsibly to pass an economic recovery and job creation plan as bold as the challenges we face. Americans want jobs. They want to work. They want to support their families. We have to help create those jobs. If we act now to strengthen our economy and invest in America's future, we can create good-paying jobs, we can cut taxes for working families, and we can make responsible investments in our future. Our first priority should be to put America back to work. This economic recovery plan will help create or save over three million jobs, including an entire generation of green jobs that will make public and private investments in renewable energy and make America more energy efficient. Investing in our country's infrastructure and education will do more than create jobs today--it can put us on a long-term path toward prosperity. Rebuilding our roads and bridges, expanding broadband access to rural communities; making our energy grid smart and more efficient; creating state-of-the-art classrooms and labs and libraries; and investing in job training that Americans will need to succeed in the 21st century global economy will give us tangible assets we can use for years to come to foster additional economic growth. As chairman of the Senate Judiciary Committee, I would like to highlight that the funding for State and local law enforcement in this recovery package will not only help to address vital crime prevention needs, but it will have an immediate and positive impact on the economy, as police chiefs and experts from across the country told the Judiciary Committee in its first hearing this year. Hiring new police officers will stimulate the economy and lead to safer communities and neighborhoods. Nobody thinks this bill is perfect. We could write 100 different perfect bills based on our own analysis. But America is hurting, and Americans urgently need our help. I believe this economic recovery package will make a timely and constructive difference across the country by creating and saving jobs, making needed infrastructure investments, reducing the tax burden on struggling families, and relieving the strain on State budget deficits. Vermonters are watching and waiting. Working families across the country are watching and waiting. Time is running out. I will vote aye. I yield the floor.

Mr. LEAHY

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