Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to speak about the international coffee crisis. With much of the world focused on Iraq and the Middle East, it is perhaps not surprising that a crisis affecting tens of millions people, on virtually every corner of the Earth, has received little attention. The worldwide price of coffee has plummeted almost 70 percent over the last several years. This has devastated the economies of poor countries in Asia, Africa, and Latin America; it has ruined the livelihoods of millions of people; and it has damaged our foreign aid and counter-narcotics efforts in these countries. For example, over the last few years, the United States has provided almost $3 billion to Colombia for counter-narcotics assistance. This has made Colombia the top recipient of U.S. assistance outside of the Middle East. Even though this is an extremely generous amount of aid, the goals and objectives are being undermined by the collapse of coffee prices. Last year, Colombia's President Alvaro Uribe wrote a letter to me, in which he stated: [T]he impact of the international coffee crisis on Colombian coffee growers has been devastating. In Colombia, more than 800,000 people are directly employed on coffee farms and another three million are dependent on coffee for their livelihood. Colombian coffee farmers are struggling to cover their cost of production, and the problems of oversupply and a decline in coffee prices has brought poverty and uncertainty to Colombia's coffee-growing regions, which were previously free of violence and narcotrafficking activity. Additional support from the United States will help improve this dire situation in Colombia and other developing countries around the world which are also being impacted by oversupply and falling prices. A range of humanitarian relief agencies, with operations around the world, further support President Uribe's views. For example, an Oxfam report on the topic found: The coffee crisis is becoming a development disaster whose impact will be felt for a long time. Famlies dependent on money generated by coffee are pulling their children, particularly girls, out of school, can no longer afford basic medicines, and are cutting back on food. Beyond farming families, national economies are suffering. Coffee traders are going out of business, some banks are in trouble, and governments that rely on the export revenues that coffee generates are faced with dramatically declining budgets for education and health programs and little money for debt repayment. The United States is, by far, the biggest importer of coffee. At the same time, we provide billions of dollars of foreign aid to nations impacted by the coffee crisis. It is common sense. The United States has a strong interest in finding a solution to this international problem. A couple of years ago, several of us in Congress started asking questions about what the administration is doing to address this issue. It is safe to say that we were disappointed with the answers. There are some good programs being run by different agencies within the Government. But, there are so many agencies involved--State, USAID, Agriculture, USTR, Treasury--and there are times when one hand does not seem to know what the other is doing. For example, USAID has programs in Latin America to help coffee farmers find alternative livelihoods, because of the overproduction that exists in the global market. At the same time, we found another program that was encouraging Bolivian farmers to get into coffee production. In other words, two steps forward, one step back. What is worse, the administration does not seem to have a comprehensive strategy across agencies to effectively address the international coffee crisis. Nothing to get everyone on the same page and working towards the same goal. Nothing that outlines a plan on how to deal with the crisis. This is not just my opinion, this is the bipartisan, bicameral view in Congress. To address these shortcomings, a number of us have come together across party lines and from different sides of the Capitol. We have pushed hard to move forward on this issue. During the final days of the 107th Congress, I along with Senators Specter, Dodd, and Feinstein, successfully sponsored S. Res. 368, which called attention to the coffee crisis and urged the administration to formulate a comprehensive, multilateral strategy to address the problem. Although this measure passed the Senate, the administration has been slow to respond, and, as a result, we were forced to include a provision in the Fiscal Year 2004 Foreign Operations bill that requires the Secretary of State to report to Congress on any progress made in formulating this strategy. To this day, the administration has not come forward with this strategy. While we should take care to make sure this strategy is done right, it has taken the administration too long. This is not a situation that will just go away. We have to act, and that makes coming forward with a strategy all that more important. I urge the administration to finish the job. Here in the Senate we are doing what we can to respond to the crisis. We were successful in getting the Senate to serve fair trade coffee. And, I am also pleased to report that we helped USAID and Green Mountain Coffee enter into a public-private partnership to implement development projects to address the crisis. These were smaller, but important accomplishments. Other accomplishments include working with the private sector, and encouraging major companies such as Procter and Gamble and Dunkin' Doughnuts to serve fair trade coffee. Much of the recent debate on the coffee crisis surrounds U.S. membership in the International Coffee Organization (ICO). As Chairman of the Foreign Operations Subcommittee, I included $500,000 in the Fiscal Year 2003 Foreign Operations bill for a U.S. contribution to the ICO, if the United States rejoined by June 1, 2003. This move was hailed by a diverse range of groups, including the National Coffee Association, Oxfam International, several Latin American governments, the Speciality Coffee Association of America, and the Colombian Coffee Federation. Unfortunately, this deadline has come and gone with no decision. However, it triggered a debate within the administration on the issue of ICO membership. That debate continues to this day. This is not an indictment on those working on this issue in the administration. To the contrary, those in the State Department, USAID, and other agencies working with Principal Deputy Assistant Secretary of State, Shaun Donnelly, are talented individuals. They have been responsive to concerns raised by Congress, and I know they are working hard to resolve this issue and find a solution to the coffee crisis. To ensure that these funds were not lost, the Commerce-State-Justice Subcommittee, under the leadership of Senators Gregg and Hollings, honored my request to include another $500,000 for a contribution to the ICO in the Fiscal Year 2004 CJS Appropriations bill. I applaud their leadership on this issue. Along with relentless pressure from Representatives Cass Ballenger and Sam Farr, the help of the Commerce- State-Justice Subcommittee sent a clear signal to the administration: Congress is not going to go away on this issue. We were recently informed that the State Department supports the U.S. membership in the ICO. This is a positive step, but the administration as a whole has yet to endorse this view. What is the hold-up? This process has been dragging on for months. It should end, and the U.S. should rejoin the ICO. This is something that U.S. industry, humanitarian NGOs, key friends and allies, and a bipartisan group in Congress supports. Some may recall the way the ICO used to operate in the past, working as a cartel to stabilize coffee prices. But, nobody is talking about rejoining the ICO to establish a cartel over the coffee market. The ICO is a reformed organization and its chartering agreement has been substantially rewritten, specifically to get the ICO out of the business of price-fixing. The idea of a coffee cartel is an idea on the ash heap of history. I would not support it. I suspect no one in this Chamber would. I support U.S. membership in the ICO, but recognize that is by no means a silver bullet. Membership alone is not enough to solve the international coffee crisis. Rather, it is one arrow in the quiver, and it can be an effective tool, when used as an integral part of a comprehensive strategy that includes funding for alternative assistance for coffee farmers, working with friends and allies, and the deep involvement of other international organizations such as the World Bank. This is the appropriate role for the ICO. There are some compelling reasons for rejoining that have been put forward by experts who follow this issue closely. I want to briefly summarize a few of them: U.S. participation in the ICO would help strengthen the implementation of resolution 407, which establishes quality guidelines on coffee exports. Although not perfect, ICO resolution 407 is a serious, multilateral attempt to help address the international coffee crisis that a number of economists believe could have a meaningful impact. According to some industry leaders, it also enhances competition in the coffee industry. U.S. participation would help the ICO become more effective in addressing the coffee crisis. Many European nations have said they would be more willing to invest and commit additional resources to resolving this crisis through the ICO, if the U.S. were participating. The European Community (EC) recently called on the U.S. to rejoin. Because the U.S. and EC are not producing nations, this momentum would help the ICO pursue goals to more effectively address development issues associated with the coffee crisis, while helping the ICO continue to move away from discredited policies of the past. U.S. membership in the ICO would focus more senior level attention, and inter-agency cooperation, on this important foreign policy issue within the administration. This would go a long way in overcoming some the problems stemming from a lack of coordination between agencies that I mentioned earlier. The ICO engages in projects to help address the crisis: price risk management for Africa, disease control, and market development projects. Moreover, the ICO is also promoting diversification in cooperation with multilateral agencies such as the FAO, UNCTAD and the World Bank. These strategies could all be enhanced through U.S. membership in the ICO. ICO membership would send an important signal to the rest of the world that the United States is committed to working collaboratively on every possible solution to this problem. This would be an important diplomatic step on an issue that many of our friends and allies in the developing world care deeply about. Again, the ICO is not a perfect solution. But, if a $500,000 contribution can help begin to solve a crisis that is undermining billions of dollars in U.S. foreign assistance, devastating the livelihood of millions of people around the word, and causing severe economic damage to key developing countries, I say its well worth the investment.

Mr. LEAHY

Mr. LEAHY. The Senator from Florida has made me aware of his interest in these provisions on several occasions, and I appreciate his contributions to this effort. They strengthen the legislation in important ways. While keeping the authority to set sentences where it belongs--with the Sentencing Commission--and while remaining deferential to the discretion of prosecutors, these provisions makes unmistakably clear that Congress expects this legislation to be used not just to punish spammers, but also to dismantle the criminal enterprises that are carried out with spam and other unsolicited bulk e-mail.

Mr. LEAHY. Mr. President, when the Senator from Arizona asked to make his unanimous consent request, I was in the process of answering the question of the Senator from Florida, who has spoken to me many times about his interest in these areas. I appreciate what he has done to strengthen this legislation. We keep the authority to set sentences where it belongs, with the Sentencing Commission, while remaining deferential, to the discretion of prosecutors. The provisions from the Senator from Florida make it unmistakably clear that Congress expects this legislation to be used not just to punish spammers but also to dismantle criminal operations that are carried out with spam and other unsolicited bulk e-mail. I also would note that the Senator from Florida has spoken about spam evolving from being just a nuisance. He is absolutely right. Serious crimes are being committed using this medium, which reaches a large number of people. Senior citizens are more and more often targeted to being bilked out of millions of dollars, and with very little effort on the part of the spammers. Mr. President, I will engage in a colloquy with Senator Nelson because I think it is important for the purposes of the Record. With all the work the Senator from Florida has done, I want the Record to be very clear.

Mr. LEAHY. Reserving the right to object.

Mr. LEAHY. I would be pleased to engage in a colloquy with the Senator from Florida.

Mr. LEAHY. Reserving the right to object.

Mr. LEAHY. Mr. President, it is increasingly apparent that unwanted commercial e-mail, commonly known as ``spam,'' is more than just a nuisance. In the past few years, it has become a serious and growing problem that threatens to undermine the vast potential of the Internet. Businesses and individuals currently wade through tremendous amounts of spam in order to access e-mail that is of relevance to them--and this is after ISPs, businesses, and individuals have spent time and money blocking a large percentage of spam from reaching its intended recipients. In my home State of Vermont, one legislator recently found that two- thirds of the 96 e-mails in his inbox were spam. And this occurred after the legislature had installed new spam-blocking software on its computer system that seemed to be catching 80 percent of the spam. The assistant attorney general in Vermont was forced to suggest to computer users the following means to avoid these unsolicited commercial e- mails: ``It's very bad to reply, even to say don't send anymore. It tells the spammer they have a live address . . . The best thing you can do is just keep deleting them. If it gets really bad, you may have to change your address.'' This experience is echoed nationwide. E-mail users are having the online equivalent of the experience of the woman in the Monty Python skit, who seeks to order a Spam-free breakfast at a restaurant. Try as she might, she cannot get the waitress to bring her the meal she desires. Every dish in the restaurant comes with Spam; it's just a matter of how much. There's ``egg, bacon and Spam''; ``egg, bacon, sausage and Spam''; ``Spam, bacon, sausage and Spam''; ``Spam, egg, Spam, Spam, bacon and Spam''; ``Spam, sausage, Spam, Spam, Spam, bacon, Spam, tomato and Spam''; and so on. Exasperated, the woman finally cries out: ``I don't like Spam! . . . I don't want ANY Spam!'' Individuals and businesses are reacting similarly to electronic spam. A Harris poll taken late last year found that 80 percent of respondents view spam as ``very annoying,'' and fully 74 percent of respondents favor making mass spamming illegal. Earlier this month, more than 3 out of 4 people surveyed by Yahoo! Mail said it was ``less aggravating to clean a toilet'' than to sort through spam. Americans are fed up. Some 30 States now have antispam laws, but the globe-hopping nature of e-mail makes these laws difficult to enforce. Technology will undoubtedly play a key role in fighting spam, but a technological solution to the problem is not likely in the foreseeable future. ISPs block billions of unwanted e-mails each day, but spammers are winning the battle. Millions of unwanted, unsolicited commercial e-mails are received by American businesses and individuals each day, despite their own, additional filtering efforts. A recent study by Ferris Research estimates that spam costs U.S. firms $8.9 billion annually in lost worker productivity, consumption of bandwidth, and the use of technical support to configure and run spam filters and provide helpdesk support for spam recipients. The costs of spam are significant to individuals as well, including time spent identifying and deleting spam, inadvertently opening spam, installing and maintaining antispam filters, tracking down legitimate messages mistakenly deleted by spam filters, and paying for the ISP's blocking efforts. And there are other prominent and equally important costs of spam. It may introduce viruses, worms, and Trojan horses into personal and business computer systems, including those that support our national infrastructure. The public has recently witnessed the potentially staggering effects of a virus, not only through the Blaster case I discussed earlier, but with the appearance of the SoBigF virus just 8 days after Blaster began chewing its way through the Internet. This variant also infected Windows machines via e-mail, then sent out dozens of copies of itself. Antivirus experts say one of the main reasons virus writers continue to modify and re-release this particular piece of ``malware'' is that it downloads a Trojan horse to infected computers, which are then used to send spam. Spammers are constantly in need of new machines through which to route their garbage e-mail, and a virus makes a perfect delivery mechanism for the engine they use for their mass mailings. Some analysts said the SoBigF virus may have been created with a more malicious intent than most viruses, and may even be linked to spam e- mail schemes that could be a source of cash for those involved in the scheme. The interconnection between computer viruses and spam is readily apparent: Both flood the Internet in an attempt to force a message on people who would not otherwise choose to receive it. Criminal laws I wrote prohibiting the former have been invoked and enforced from the time they were passed it is the latter dilemma we must now confront headon. Spam is also fertile ground for deceptive trade practices. The FTC has estimated that 96 percent of the spam involving investment and business opportunities, and nearly half of the spam advertising health services and products, and travel and leisure, contains false or misleading information. This rampant deception has the potential to undermine Americans' trust of valid information on the Internet. Indeed, it has already caused some Americans to refrain from using the Internet to the extent they otherwise would. For example, some have chosen not to participate in public discussion forums, and are hesitant to provide their addresses in legitimate business transactions, for fear that their e- mail addresses will be harvested for junk e-mail lists. And they are right to be concerned. The FTC found spam arriving at its computer system just 9 minutes after posting an e-mail address in an online chat room. I have often said that Congress must exercise great caution when regulating in cyberspace. Any legislative solution to spam must tread carefully to ensure that we do not impede or stifle the free flow of information on the Internet. The United States is the birthplace of the Internet, and the whole world watches whenever we decide to regulate it. Whenever we choose to intervene in the Internet with government action, we must act carefully, prudently, and knowledgeably, keeping in mind the implications of what we do and how we do it. And we must not forget that spam, like more traditional forms of commercial speech, is protected by the first amendment. At the same time, we must not allow spam to result in the ``virtual death'' of the Internet, as one Vermont newspaper put it. The Internet is a valuable asset to our Nation, to our economy, and to the lives of Americans, and we should act prudently to secure its continued viability and vitality. On June 19 of this year, Senator Hatch and I introduced S.1293, the Criminal Spam Act, together with several of our colleagues on the Judiciary Committee. On September 25, the committee unanimously voted to report the bill to the floor. Today, Senators Hatch, Nelson, Schumer, Grassley and I offered the criminal provisions of S. 1293 as an amendment to S. 877, the CAN SPAM Act. The amendment was adopted by voice vote. I thank the lead cosponsors of S. 877 for working with us on this amendment, and for their support and cosponsorship of the Criminal Spam Act. I also thank Senator Bill Nelson for his contribution to the amendment. The Hatch-Leahy amendment prohibits five principal techniques that spammers use to evade filtering software and hide their trails. First, our amendment prohibits hacking into another person's computer system and sending bulk spam from or through that system. This criminalizes the common spammer technique of obtaining access to other people's e-mail accounts on an ISP's e-mail network, whether by password theft or by inserting a ``Trojan horse'' program--that is, a program that unsuspecting users download onto their computers and that then takes control of those computers--to send bulk spam. Second, our amendment prohibits using a computer system that the owner makes available for other purposes as a conduit for bulk spam, with the intent of deceiving recipients as to the spam's origins. This prohibition criminalizes another common spammer technique--the abuse of third parties' ``open'' servers, such as e-mail servers that have the capability to relay mail, or Web proxy servers that have the ability to generate ``form'' mail. Spammers commandeer these servers to send bulk commercial e-mail without the server owner's knowledge, either by ``relaying'' their e-mail through an ``open'' e-mail server, or by abusing an ``open'' Web proxy server's capability to generate form e- mails as a means to originate spam, thereby exceeding the owner's authorization for use of that e-mail or Web server. In some instances the hijacked servers are even completely shut down as a result of tens of thousands of undeliverable messages generated from the spammer's e- mail list. The amendment's third prohibition targets another way that outlaw spammers evade ISP filters: falsifying the ``header information'' that accompanies every e-mail, and sending bulk spam containing that fake header information. More specifically, the amendment prohibits forging information regarding the origin of the e-mail message, and the route through which the message attempted to penetrate the ISP filters. Fourth, the Hatch-Leahy amendment prohibits registering for multiple e-mail accounts or Internet domain names, and sending bulk e-mail from those accounts or domains. This provision targets deceptive ``account churning,'' a common outlaw spammer technique that works as follows. The spammer registers--usually by means of an automatic computer program--for large numbers of e-mail accounts or domain names, using false registration information, then sends bulk spam from one account or domain after another. This technique stays ahead of ISP filters by hiding the source, size, and scope of the sender's mailings, and prevents the e-mail account provider or domain name registrar from identifying the registrant as a spammer and denying his registration request. Falsifying registration information for domain names also violates a basic contractual requirement for domain name registration falsification. Fifth and finally, our amendment addresses a major hacker spammer technique for hiding identity that is a common and pernicious alternative to domain name registration--hijacking unused expanses of Internet address space and using them as launch pads for junk e-mail. Hijacking Internet Protocol--IP--addresses is not difficult: Spammers simply falsely assert that they have the right to use a block of IP addresses, and obtain an Internet connection for those addresses. Hiding behind those addresses, they can then send vast amounts of spam that is extremely difficult to trace. Penalties for violations of these new criminal prohibitions are tough but measured. Recidivists and those who send spam in furtherance of another felony may be imprisoned for up to 5 years. Large-volume spammers, those who hack into another person's computer system to send bulk spam, and spam ``kingpins'' who use others to operate their spamming operations may be imprisoned for up to 3 years. Other offenders may be fined and imprisoned for no more than one year. Convicted offenders are also subject to forfeiture of proceeds and instrumentalities of the offense. In addition to these penalties, the Hatch-Leahy amendment directs the Sentencing Commission to consider providing sentencing enhancements for those convicted of the new criminal provisions who obtained e-mail addresses through improper means, such as harvesting, and those who knowingly sent spam containing or advertising a falsely registered Internet domain name. We have also worked with Senator Nelson on language directing the Sentencing Commission to consider enhancements for those who commit other crimes that are facilitated by the sending of spam. I should note that the Criminal Spam Act, from which the amendment is taken, enjoys broad support from ISPs, direct marketers, consumer groups, and civil liberties groups alike. It is also supported by the administration: In its September 11, 2003, views letter regarding the CAN SPAM Act, the administration advocated the addition to CAN SPAM of felony triggers similar to those proposed in the Criminal Spam Act. The administration further supported our proposal, advanced in the Hatch- Leahy amendment, to direct the Sentencing Commission to consider sentencing enhancements for convicted spammers that have additionally obtained e-mail addresses by harvesting. Again, the purpose of the Hatch-Leahy amendment is to deter the most pernicious and unscrupulous types of spammers--those who use trickery and deception to induce others to relay and view their messages. Ridding America's inboxes of deceptively delivered spam will significantly advance our fight against junk e-mail. But it is not a cure-all for the spam pandemic. The fundamental problem inherent to spam--its sheer volume--may well persist even in the absence of fraudulent routing information and false identities. In a recent survey, 82 percent of respondents considered unsolicited bulk e-mail, even from legitimate businesses, to be unwelcome spam. Given this public opinion, and in light of the fact that spam is, in essence, cost-shifted advertising, we need to take a more comprehensive approach to our fight against spam. While I am generally supportive of the CAN SPAM Act, and will vote in favor of passage, it does raise some concerns. The bill takes an ``opt out'' approach to spam--that is, it requires all commercial e-mail to include an ``opt out'' mechanism, by which e-mail recipients may opt out of receiving further unwanted spam. My concern is that this approach permits spammers to send at least one piece of spam to each e- mail address in their database, while placing the burden on e-mail recipients to respond. People who receive dozens, even hundreds, of unwanted e-mails each day may have little time or energy for anything other than opting-out from unwanted spam. According to one organization's calculations, if just one percent of the approximately 24 million small businesses in the U.S. sent every American just one spam a year, that would amount to over 600 pieces of spam for each person to sift through and opt out of each day. And this figure may be conservative, as it does not include the large businesses that also engage in online advertising. I am also troubled by the labeling requirement in the CAN SPAM Act, which makes it unlawful to send an unsolicited commercial e-mail message unless it provides, among other things, `` clear and conspicuous identification that the message is an advertisement or solicitation,'' and ``a valid physical postal address of the sender''. While we all want to curb spam, we must be mindful of its status as protected commercial speech, and ensure that any restrictions we impose on it are as narrowly tailored as possible. Reducing the volume of junk commercial e-mail, and so protecting legitimate Internet communications, is not an easy matter. There are important First Amendment interests to consider, as well as the need to preserve the ability of legitimate marketers to use e-mail responsibly. We must be sure we get this right, so as not to exacerbate an already terribly vexing problem. This is especially important given the preemption provisions of the CAN SPAM Act, which will override many of the tough anti-spamming laws already enacted by the States. My distinguished colleagues from Wyoming and Pennsylvania offered an amendment requiring ``warning labels'' on certain commercial electronic mail. While I appreciate my colleagues' efforts to protect our children from the on-line assault of internet pornography--an important goal that we all share--I fear the amendment has been drafted in haste and raises significant constitutional issues that require further analysis. First, the amendment incorporates broad and vague phrases such as ``devoted to sexual matters'' that are not otherwise defined in the law. I expressed similar concerns during debate on the Communications Decency Act, CDA, which the Supreme Court struck down as unconstitutional in 1996. The CDA also punished as a felony anyone who transmitted ``obscene'' or ``indecent'' material over the Internet. The CDA was deemed too vague as to what was ``indecent'' or ``obscene.'' Some of the terms and phrases used in the Enzi-Santorum amendment may be deemed equally vague when subjected to judicial scrutiny. There are also first amendment concerns to regulating commercial electronic mail in ways that require specific labels on protected speech. Such requirements inhibit both the speaker's right to express and the listener's right to access constitutionally protected material. More importantly, existing laws already ban obscenity, harassment, child pornography and enticing minors into sexual activity. As a father and a grandfather, I well appreciate the challenge of limiting a child's exposure to sexually inappropriate material. Yet, no legislation we could pass would be an effective substitute for parental involvement. We must be vigilant about feel-good efforts to involve government, either directly or indirectly, in regulating the content of the Internet. For these reasons, the Enzi-Santorum amendment raises serious legal issues that mandate further exploration before a determination can be made on the proposed law's constitutional viability. I look forward to continuing to work with the sponsors of the CAN SPAM Act on these issues as the bill proceeds to conference.

Mr. LEAHY. Sure.

Mr. LEAHY. Mr. President, I thank my dear friend from Oregon for his far too generous words. I have enjoyed working with him. He has carried over from his service in the other body. He has a strong interest in this. Just as important as his strong interest is the fact he has extraordinary expertise in this area. That is very helpful. If you would allow me one quick personal story. This sort of humbles you. I like to think I am very knowledgeable on this. My 5-year-old grandson climbed in my lap and asked me to log on to a particular interactive site for children. It is something he could do himself, but we don't let him log on himself because of the problems with some sites that appear to be for children, and are anything but. So I log on for him, and he climbs up on my lap, takes the mouse out of my hand and says: I better take over now because it gets very complicated. In some ways we are protecting those 5-year-olds because they are the next generation using this technology. I thank my friend from Oregon and good friend from Montana for the enormous amount of work they have done here. I yield the floor.

Mr. LEAHY. Mr. President, it is increasingly obvious that unwanted commercial e-mail is more than just a nuisance. Businesses and individuals sometimes have to wade through hours of spam. It makes it impossible for them to do their work. It slows down whole enterprises. In my home State of Vermont, one legislator logged on to his server and found that two-thirds of the e-mails in his inbox were spam. Our legislator is a citizen or legislature. He does not have staff or anything else. This was after the legislator had installed spam- blocking software. His computer stopped about 80 percent of it. But even after he blocked 80 percent, two-thirds of the e-mail he had was spam. The e-mail users are having the online equivalent of the experience of the woman in the classic Monty Python skit. She wanted to order a Spam-free breakfast at a restaurant. Try as she might, she cannot get the waitress to bring her the meal she wants. Every dish in the restaurant comes with Spam; it is just a matter of how much. There is eggs, bacon, and Spam; eggs, bacon, sausage, and Spam; Spam, bacon, sausage, and Spam; Spam, egg, Spam, Spam, bacon, and Spam; Spam, sausage, Spam, Spam, Spam, bacon, Spam, tomato, and Spam, and so on. Finally, the customer said: I don't like Spam. I don't want Spam. I hate Spam. Now, I repeat that with apologies to John Cleese and everybody else in the Monty Python skit. Mr. President, anybody who goes on e-mail, including every member of my family down to my 5-year-old grandchild, knows how annoying spam can be. A Harris poll taken last year found that 80 percent of the respondents viewed spam as ``very annoying'' and 74 percent wanted to make it illegal. Some 30 States now have anti-spam laws but it is difficult to enforce them. There are actually billions of unwanted e-mails that are blocked by ISPs every day. Hundreds of millions of spam e-mails get through just the same. Now, we have to be very careful when we regulate in cyberspace. We must not forget that spam, like more traditional forms of commercial speech, is protected by the first amendment. We cannot allow spam to result in the ``virtual death'' of the Internet, as one Vermont newspaper put it. So what Senator Hatch and I have offered and is being accepted--the Hatch-Leahy-Nelson-Schumer amendment--would, first, prohibit hacking into another person's computer system and sending bulk spam from or through that system. Second, it would prohibit using a computer system that the owner makes available for other purposes as a conduit for bulk spam, with the intent to deceive the recipient as to where the spam came from. The third prohibition targets another way that outlaw spammers evade ISP filters: falsifying the ``header information'' that accompanies every e-mail and sending bulk spam containing that fake header information. The amendment prohibits forging information regarding the origin of the e-mail message. Fourth, the Hatch-Leahy-Nelson-Schumer amendment prohibits registering for multiple e-mail accounts or Internet domain names and sending bulk mail from those accounts or domains. Fifth, and finally, our amendment addresses a major hacker spammer technique for hiding identity that is a common and pernicious alternative to domain name registration--that is, hijacking unused expanses of Internet address space and using them to launch junk mail. Now, penalties under the amendment are tough, but they are measured. Recidivists and those who send spam in furtherance of another felon may be imprisoned for up to 5 years. The sound of a jail cell closing for 5 years should focus their attention. Large-volume spammers, those who hack into another person's computer system to send bulk spam, and spam ``kingpins'' who use others to operate their spamming operations may be imprisoned for up to 3 years, and so on. Then, of course, we direct the Sentencing Commission to look at other areas. So, Mr. President, I see my colleagues on the floor, Senator Burns and Senator Wyden, who have done yeoman work on this legislation. I compliment all those who worked together. I certainly compliment the two of them, as well as Senator Hatch, Senator Nelson, and Senator Schumer. I think we are putting together something that is worth passing.

Mr. LEAHY. It is not precluded by the unanimous consent request.

Mr. LEAHY. Where is the Hatch-Leahy amendment?

Mr. LEAHY. The Senator from Florida is correct. Nowadays, we see that spam has moved far beyond being just a nuisance to people trying to use email on their personal computers. Serious crimes are being committed using this medium, which can reach large numbers of people in a matter of seconds. For example, if a person or organization seeks to commit fraud to bilk senior citizens out of their money, with spam they can reach millions of potential victims at very low, even negligible costs. With such low costs, and such wide reach, even a small rate of success can make for a very profitable criminal enterprise.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Senate recently voted to confirm an outstanding district court nominee to the Western District of Pennsylvania named Kim Gibson. Today, the leadership has decided to bring up the nomination of Thomas Hardiman who happens to be nominated to the very same court. Unfortunately, this nominee's suitability for the Federal bench pales in comparison to Judge Gibson. Judge Gibson came to us with judicial experience, a unanimous ``well qualified'' rating from the ABA, and the highest rating from his local bar association. In contrast, Mr. Hardiman has no judicial experience, a relatively small amount of litigation experience and has been given very low peer- review ratings by the ABA and the same local bar association that ``highly recommended'' Judge Gibson. The Allegheny County Bar Association recently released its opinions about the three pending judicial nominees from their community. After their extensive review, the Bar Association determined that they could simply ``not recommend'' Mr. Hardiman for a lifetime appointment to their Federal trial court. Although neither Bar Association explained precisely why Mr. Hardiman received such bad reviews, his communications with the Judiciary Committee potentially shed some light on their concerns. Mr. Hardiman showed a lack of candor in describing the extent of his litigation experience. After reporting that he had tried 54 cases to judgment, he subsequently revised the number downward to 19, and then upon further review he explained that several of these 19 cases were not actually trials that resulted in a judgment. In addition, opposing counsel contacted the committee to raise concerns about Mr. Hardiman's exceedingly narrow view of fair housing statutes and his questionable litigation tactics. Counsel in a housing discrimination case entitled, Alexander v. Riga, criticized Mr. Hardiman's conduct when he represented landlords who repeatedly refused to show African-American couples an apartment that was for rent. Despite a jury finding of discrimination, Mr. Hardiman argued that there was no resulting damage and the district court adopted his reasoning. On appeal to the Third Circuit, Mr. Hardiman analogized the harm resulting from the racial discrimination at issue to running a red light. The Third Circuit criticized his dismissive analogy and found that his argument and the district court's adoption of it would undermine the Federal housing statutes. The Third Circuit rejected Mr. Hardiman's argument and reversed the trial court. I am also troubled by Mr. Hardiman's discovery tactics. In answers to written committee questions, he admitted that in the Riga case he repeatedly violated the Federal Rules of Civil Procedure by issuing a subpoena to a nonparty without noticing opposing counsel in this case. After answering two rounds of written questions, Mr. Hardiman subsequently admitted that he had not even reviewed his Riga files before submitting his answers to the committee. Even the trial judge criticized Mr. Hardiman's associate about their litigation strategy and tactics in this case, including the improper subpoenas. Significantly less troubling matters stalled many judicial nominees of President Clinton. If this were anytime between 1995 and 2000 and this were a Clinton nominee, the Republican majority would never have accorded this type of nomination a vote. Recall the fate of Clarence Sundrum, Dolly Gee, the 8 district court nominees to vacancies in Pennsylvania and so many others blocked by Republicans from ever being considered. The Senate has already confirmed 165 of this President's judicial nominees. The current pace of confirmation stands in stark contrast to what occurred with judicial nominees during the Clinton administration. It was not until well into the fourth year of President Clinton's second term, when Republicans controlled the Senate, before this many judicial nominees were confirmed. It took President Reagan his entire first term to get this many judicial nominees confirmed, and that was with a Senate that was controlled by the same party. It also took President George H.W. Bush well into his fourth year to get this many of his judicial nominees confirmed. In contrast, today, with the shifts in Senate control, it has effectively taken a little more than 2 years of rapid Senate action to confirm 165 judicial nominees for this President, including 100 during Democratic control. This year alone the Senate has confirmed 65 judicial nominees, including 12 circuit court nominees in 2003. This includes more judicial confirmations in just 10 months than Republicans allowed for President Clinton in 1995, 1996, 1997, 1999, or 2000. Overall, we have confirmed 29 circuit court nominees of President Bush since July of 2001, which is more than were confirmed at this time in the third year of President Reagan's first term, President George H.W. Bush's term, or either of President Clinton's terms. The Senate has held hearings for 13 Pennsylvania nominees of President Bush's to the Federal courts in Pennsylvania. While I was chairman, the Senate held hearings for and confirmed 10 nominees to the district courts in Pennsylvania, plus Judge D. Brooks Smith to the Third Circuit Court of Appeals. In total, we have already confirmed 13 of this President's judicial nominees to the Federal courts in the State of Pennsylvania. Five of these new judges have already been confirmed to the Western District of Pennsylvania. A look at the Federal judiciary in Pennsylvania indicates that President Bush's nominees have been treated far better than President Clinton's. This treatment is in sharp contrast to the way vacancies in Pennsylvania were kept vacant during Republican control of the Senate when President Clinton was in the White House, particularly regarding nominees in the western half of the State. Just a few months ago, on May 16, 2003, Jon Delano wrote in the Pittsburgh Business Times, an article titled ``Despite Bush Protests, Court Vacancies are Down,'' about how this President's nominees in the western part of Pennsylvania have been treated more fairly than President Clinton's nominees. He wrote: Take the Western District of Pennsylvania, for example. During the years of the Santorum filibuster, that court of 10 judges had as many as five vacancies. Today, the Senate has confirmed four Bush appointees--Judges Joy Conti, David Cercone, Terry McVerry, and Art Schwab--and the fifth nomination, attorney Tom Hardiman, has just been sent to the Senate. With the elevation and confirmation of Judge Brooks Smith to the U.S. Court of Appeals, the president still needs to name one more judge to the local court, but once completed, Mr. Bush, with less than three years in office, will have named--and the Senate will have confirmed--six of the 10 judges on the local Federal court. That hardly sounds like obstructionism. Despite the best efforts and diligence of the senior Senator from Pennsylvania, Senator Specter, to secure the confirmation of all of the judicial nominees from every part of his home State, there were 10 nominees by President Clinton to Pennsylvania vacancies who never got a vote: Patrick Toole, John Bingler, Robert Freedberg, Lynette Norton, Legrome Davis, David Fineman, David Cercone, Harry Litman, Stephen Lieberman, and Robert Cindrich to the Third Circuit. Despite how well-qualified these nominees were, they were never considered by the Senate, many waited more than a year for action. Unfortunately, Mr. Hardiman's record is similar to the record of far too many of President Bush's judicial nominees. Far too many of this President's judicial nominees have less courtroom experience than partisan experience. In fact, 25 of this President's judicial nominees have earned partial or majority ``Not Qualified'' ratings from the ABA. In addition to the ABA's review, Mr. Hardiman was also ``not recommended'' by his county bar association. Certainly, the citizens of Western Pennsylvania deserve a well- qualified judiciary to hear their important legal claims in Federal court. I have great respect for the senior Senator from Pennsylvania. I appreciate his efforts to help shepherd the White House's nomination through the Senate. After considering the negative impression Mr. Hardiman has made on his fellow Pennsylvanians regarding his suitability for this lifetime appointment and his conduct before the Judiciary Committee, I believe that this is among the weakest nominees we have considered.

Mr. LEAHY

Mr. LEAHY. Has there been time reserved under the order for the Senator from Vermont?

Mr. LEAHY. Mr. President, how much time is reserved under the order for the Senator from Vermont?

Mr. LEAHY. I thank the Chair. Mr. President, I do not want to interfere with my friend from Nevada, but I understood we were going back and forth; is that correct?

Mr. LEAHY. I will not use the 30 minutes. I am going to use approximately 5 minutes of my 30 minutes.

Mr. LEAHY. I thank the Chair. Mr. President, I do take my time under the order. As I stated before, I do oppose this bill, a bill that has not had hearings, has not had a vote in the committee, but when you review it, you realize--let me be parochial for a moment--this legislation would deprive Vermonters of the right to band together to protect themselves against violations of State civil rights, consumer, health, and environmental protection laws in their own State courts. That is unacceptable to this Vermonter. The same could be said of all the other 49 States, and it ought to be unacceptable to the Senators from each of the other 49 States. In fact, the country might ask what it says about our priorities that we are even having this debate. Of the many pressing issues already on the Senate's plate awaiting action and awaiting time on the floor, all the appropriations bills that we are required by law to pass by September 30 and have yet to even be taken up for a vote or debate should be among our highest priorities. If we are going to tell how the laws should be made and how the courts should be run, we ought to at least demonstrate to the American people that we, in the Senate, can follow the law and do our appropriations bills at the time we are supposed to. Instead, we set aside those issues that by law we are required to do, those issues that are the priorities of the American people, to take up another priority. We ask: Whose priority is this bill? The bill is a top priority to special interests that include big polluters and big violators of the American people's consumer rights and civil rights past, present, and future. Class actions are one remaining tool available to the average American in seeking justice, and some special interests want nothing more than to weaken the public's hand in class action proceedings. While the Senate is spending several days debating this bill, think of those appropriations bills that by law we should have brought up weeks ago and what is in those bills: not special interests but American interests, such as funding for the Department of Justice to provide bulletproof vests for law enforcement officers, the same law enforcement officers who protect all of us, or how about the money to put more cops on the streets and to implement the prevention programs of the Violence Against Women Act? Those are not special interests; they are American interests. Despite the fact the fiscal year began 3 weeks ago, we are dallying with this special interest legislation that benefits large corporate interests at the expense of individuals harmed by these corporations. At its core, this bill deprives citizens of the right to sue on State law claims in their own State courts if the principal defendant is a citizen of another State, even if that defendant has a substantial presence in the plaintiffs' home State, and even if the harm done was in the plaintiffs' home State. Less than a week ago, with no hearings before our committee, mass tort actions were included in the bill along with true class actions, despite the fact that when we actually did vote on it in the Judiciary Committee, both Republicans and Democrats voted to take that out. This simply amplifies the harm done to citizens' rights, and to the possibility of vindicating those rights in their own State courts. It also shows how special interest legislation comes on the floor. Here is legislation bypassing the committee, legislation that is dumped on the floor and provisions added to it that had been voted down by a majority of the committee of jurisdiction, a majority requiring both Republicans and Democrats to vote for it. Special interests groups are distorting the state of class action litigation by relying on a few anecdotes in an ends-oriented attempt to impede plaintiffs bringing class action cases. There are problems in class action litigation. There are ways of taking care of that. But simply shoving most suits into Federal court with new one-sided rules will not correct the real problems faced by plaintiffs and defendants. After all, our State-based tort system remains one of the greatest and most powerful vehicles for justice anywhere in the world. I think of when the Soviet Union broke up, as I said before on the floor, and members of the new governing body came to the United States to study how we do things. I recall a group coming to my office and saying: We have heard that people in the United States in your States can sue the Government, sue the State. I said: That's right. They said: We have heard further that they actually could win, and the State could lose. I said: It happens all the time. They said: You mean, you don't fire the judges; you don't start over again? I said: Absolutely not; this is our system. We set it up that way so people can go to their State courts and sue. If this is passed, I would hate to have to explain to those people from the former Soviet Union that we have taken such a step backward. One reason that our State-based tort systems are so great is that there is an availability of class action litigation that lets ordinary people band together to take on powerful corporations or even their own Government. Defrauded investors, deceived consumers, victims of defective products, and environmental torts, and thousands of other ordinary people have been able to rely on class action lawsuits in our State court systems to seek and receive justice. If they cannot, that is what the cheaters count on. We are only cheating you $5 or $6 or $10 or $15. Why would you sue for that? But if there are millions being cheated, then you have a chance to do something. Class actions allow the little guys to band together. Whether it is to force manufacturers to recall and correct dangerous products, as we saw with the Bridgestone/Firestone tire recall, or to clean up after devastating environmental harms, as we saw with Monsanto in Alabama, or to vindicate the basic civil rights they are entitled to as citizens of our great country, they are using class actions, and they should continue to do so. The so-called Class Action Fairness Act is something that appeared on the Senate desk with no hearings. It almost looks as if it has been drafted in the legal section of one of the major polluters of this country. It would leave injured parties who have valid claims with no effective way to seek relief. Class action suits have helped win justice and exposed wrongdoing by corporate and Government wrongdoers. They have given average Americans at least a chance for justice. We should not take that away. I reserve the remainder of my time.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am pleased to introduce bipartisan legislation with Senators Snowe, Burns, Jeffords, Lautenberg and Dodd to restore the conservation funding commitment Congress and the administration made to farmers and ranchers in the 2002 farm bill. Despite the historic conservation funding levels in the 2002 farm bill, family farmers and ranchers offering to restore wetlands, or offering to change the way they farm to improve air and water quality, continue to be rejected when they seek U.S. Department of Agriculture (USDA) conservation assistance. Producers are being turned away due to USDA's decision earlier this year to divert $158.7 million from working lands conservation programs to pay for the cost of administering the Conservation Reserve Program (CRP) and the Wetlands Reserve Program (WRP) despite a clear directive in the 2002 farm bill that the USDA use mandatory funds from the Commodity Credit Corporation (CCC) to pay for CRP and WRP technical assistance. In particular, USDA diverted $107.9 million from the Environmental Quality Incentives Program (EQIP), $27.6 from the Farmland and Ranchland Protection Program (FRPP), $14.6 million from the Grasslands Reserve Program, and $8.6 million from the Wildlife Habitat Incentives Program (WHIP) to pay for CRP and WRP technical assistance. Although the 2002 farm bill clearly intended USDA to use CCC funds to pay for CRP and WRP technical assistance, USDA continues to ignore Congress's intent. The plain language of the statute and the legislative history, including a relevant colloquy, support this interpretation of the farm bill, and the General Accounting Office (GAO) concurred in a recent memo. I ask unanimous consent the GAO's memo be printed in the Record following my remarks. Our legislation would override USDA's decision and prevent funds from working lands incentive programs like EQIP and WHIP from being diverted to pay for the technical assistance costs of CRP. The House Agriculture Subcommittee on Conservation has already approved similar legislation, H.R. 1907, requiring each program to pay for its own technical assistance needs. Our legislation parallels that effort, by requiring CRP to pay for its own technical assistance needs. Simply put, our amendment would require the Administration to honor the 2002 Farm Bill and mandate that technical assistance for each program is derived from funds provided for that program. By providing more than $6.5 billion for working lands programs like EQIP and WHIP in the 2002 farm bill, Congress dramatically increased funds to help farmers manage working lands to produce food and fiber and simultaneously enhance water quality and wildlife habitat. For example, EQIP helps share the cost of a broad range of land management practices that help the environment, include more efficient use of fertilizers and pesticides, and innovative technologies to store and reuse animal waste. In combination, these working lands programs will provide farmers the tools and incentives they need to help meet our major environmental challenges. Full funding for working lands incentive programs like EQIP and WHIP is vital to helping farmers and ranchers improve their farm management and meeting America's most pressing environmental challenges. Because 70 percent of the American landscape is private land, farming dramatically affects the health of America's rivers, lakes and bays and the fate of America's rare species. Most rare species depend upon private lands for their survival, and many will become extinct without help from private landowners. When farmers and ranchers take steps to help improve air and water quality or assist rare species, they can face new costs, new risks, or loss of income. Conservation programs help share these costs, underwrite these risks, or offset these losses of income. Unless Congress provides adequate resources for these programs, there is little reason to hope that our farmers and ranchers will be able to help to meet these environmental challenges. In addition, USDA conservation programs promote regional equity in farm spending. More than 90 percent of USDA spending flows to a handful of large farmers in 15 midwestern and southern States. As a result, many farmers and ranchers who are not eligible for traditional subsidies--including dairy farmers, ranchers, and fruit and vegetable farmers--rely upon conservation programs to boost farm and ranch income and to ease the cost of environmental compliance. Unlike commodity subsidies, conservation payments flow to all farmers and all regions. But the farmers and ranchers who depend upon these programs--farmers and ranchers who already receive a disproportionately small share of USDA funds--have faced a disproportionately large cut in spending this year. It is time for Congress and the administration to honor the intent of the 2002 farm bill, by fully funding working lands conservation programs. The failure to adequately fund these working lands conservation programs is having a dramatic impact on both farmers and the farm economy and could become worse in future years if Congress does not address this matter. I urge my colleagues to support this important legislation.

Mr. LEAHY

Mr. LEAHY. Mr. President, as one Member of Congress who believes that we have a strong interest in broadcasting and strengthening our relations with Mexico, I was appalled to read a recent Washington Post article entitled ``Three Americans Jailed in Bizarre Mexican Land Dispute.'' Mexico is a country of 100 million people. We share a border. We share a wide range of cultural, economic, political, and other interests. Yet our history has been a troubled one, and the election of Vicente Fox offered an historic opportunity to begin to build a new relationship based on trust, mutual understanding, and shared goals. Regrettably, President Bush, who shortly after his inauguration spoke convincingly of his intention to give a high priority to U.S.-Mexican relations, has failed to turn those words into action. Little has been accomplished. I am afraid that once again, the hopes and aspirations of both Mexicans and Americans will be for naught. The President needs to recognize that as important as the Middle East and the Persian Gulf are to U.S. and global security, we have vital interests right here in our own hemisphere. I remember how during the 1980s we spent billions of dollars to wage proxy wars in Central America. Yet when those wars were over, we turned our back. Today, with the exception of our counter-drug programs in the Andes, which as we have seen recently in Bolivia are of dubious merit, we spend a pittance to support economic and political development in these countries the majority of whose people remain impoverished and without meaningful political or legal rights. Our policy is short sighted and it will cost us in the long run. Of all countries in the hemisphere, none is more important to U.S. interests than Mexico. it would be difficult to think of any issue-- immigration, tourism, trade, infectious disease, water security, environmental pollution, democracy and the rule of law, organized crime--that does not cry out for broader cooperation. I hope President Bush, and his capable new Assistant Secretary of State for Western Hemisphere Affairs, Roger Noriega, will give renewed attention to these issues during the remaining years of President Fox's term. I mention this because earlier this year, I sponsored, with Senator Reid, Senator Daschle and others, an amendment which authorized $100 million to be spent in Mexico to promote micro credit programs, small business entrepreneurship, private property ownership, and support for small farmers who have been affected by adverse economic conditions. I felt it was important to make a strong statement, through legislation, that we need to devote significant resources to help address these problems. Our amendment was adopted, and it is my hope that we can include a portion of those funds for Mexico in the fiscal year 2004 Foreign Operations Act. But my support for providing those funds will depend on whether the case which is the subject of the Washington Post article I mentioned is satisfactorily resolved. The three Americans who have been arrested are the victims of an absurd miscarriage of justice. Fortunately, according to the article, the American Embassy in Mexico is following the case closely, and recognizes that these three people have done nothing wrong. To the contrary, they have generously cared for an ailing, elderly American, Russell Ames, who lost his wife Jean Ames three years ago. Jean Ames was a wonderful woman, and her death was a great blow to Russell Ames. Ames, already in his late eighties at the time of his wife's death, would never have been able to continue to live in his home in a small village near Oaxaca, Mexico, without the around-the- clock care of Mary Ellen Sanger and the other Americans who lived on the property. My office has conveyed my concern about the unlawful arrests and detentions of these three Americans to the Mexican Embassy in Washington. These people should be immediately released and the cases against them dismissed. And, just as important, President Fox, who has repeatedly said that his presidency stands for the rule of law, should determine whether the Mexican official who is responsible for this travesty should be removed from his position. I ask unanimous consent to print the aforementioned article in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, as colleagues may have gathered, I am not in favor of this piece of legislation, the Class Action Fairness Act. Man, I have heard things. There ought to be a law against misleading labels on legislation we pass because this would break the law. These many injured parties who have valid claims would have no effective way to seek relief. Class action suits have helped win justice and expose wrongdoing by the polluters, the big tobacco companies, and the civil rights violators, and brought about Brown v. Board of Education, as I said earlier. It gives average Americans at least a chance for justice. We should not take that chance for justice away from the American people. So I hope Senators will consider the harm this bill would do the American people and to their constituents and join me in opposition. Lastly, Mr. President, as I said, we found time to get highway money for Iraq, but we do not have time to pass the highway bill for America. We had time to get money to improve police departments and law enforcement in Iraq, but we do not have time to pass a bill to do the same here for Americans. We had time to pass legislation to help military veterans in Iraq, but we can't find time to pass legislation for veterans in the United States.

Mr. LEAHY. Last year a group of investors recovered millions of dollars in lost investments under State corporate fraud laws and a State class action case in Baptist Foundation of Arizona v. Arthur Andersen. These investors, mostly elderly, banded together to successfully recoup $217 million from Arthur Andersen. Why? Because of questionable accounting practices surrounding an investment trust. The case is just one example of how a State-based class action litigation holds corporate wrongdoers accountable and helps defrauded investors recoup their losses. Like most Vermonters, I am a strong supporter of the environment. But I look at this bill and I think, what a green light for polluters and others responsible for environmental damages to avoid accountability in court. So many polluters, who would fear class action suits if they were to violate the law, now know they could get caught. With this legislation, they might take the old idea of: Go ahead and pollute; nobody gives a hoot. They are going to get away with it. This legislation removes almost all important environmental class actions from State to Federal court. Not only does this deny State courts the opportunity to interpret their own State's environmental protection laws, but it also hampers and deters plaintiffs in pursuing important environmental litigation. It means we Vermonters would not have a say in our own courts--or those in Utah or in any other State. Under this bill, environmental class action suits may not get litigated, reducing the incentive to keep our environment clean. Plaintiffs' attorneys may not be willing to take these high-risk, high- cost, and time-consuming cases, particularly when what they are looking for is injunctive relief. That is an injunction to stop the polluter from polluting. Intentionally or not, this bill protects polluters and ignores innocent victims of their negligence. Just a few months ago, as I recall, we read about a horrible toxic dumping situation in Alabama and a monumental settlement in State court to clean up an entire community. It was in State court, though--in State court. In Anniston, AL, the Monsanto Company manufactured PCBs-- carcinogens--from 1929 to 1971. For more than 40 years, in arrogant-- arrogant--disgusting disregard of people's health and the environment, Monsanto dumped untreated, unfiltered waste from its PCB plant into the streams and landfills of Anniston. They never let the residents--many of whom actually worked, and worked very hard, for Monsanto--they never let them know of the horrific risk to their environment and their health. When the undeniable truth of Monsanto's malfeasance became clear, several thousand residents of Anniston sued in State court. They recently won a liability jury verdict. When the case moved into the damages phase, Monsanto was not out there defending and saying: Well, we did not do something bad. They knew they did something terrible. They did not start arguing about: Well, people were not injured by it. They knew they were injured by it. So what did they do? They tried to get the judge removed. That is what they tried to do. Although the Alabama Supreme Court, a conservative supreme court, had already held that the trial judge was acting properly, Monsanto continued to oppose his participation. They tried everything they possibly could do to confuse people and escape facing up to the issues. They then had to focus on the merits of the case and settled with the local residents for $600 million and pledged to pay additional cleanup costs for the town. The Alabama Supreme Court, the Alabama State court, did this very well. Not under this bill. Under this bill, it would have been yanked away from those courts, yanked away from the Alabama State court, yanked away from the Alabama Supreme Court, and stuck into Federal court. Why? More than 100 people lived in Anniston. Even though all the people suffered, they lived just a block or a driveway from each other. We, those of us who say we really care about States having their rights, would reach down and yank it right out of the State and say: You are not good enough to handle the case that involves your own people. Cases such as this one would provide hard evidence that our State- based civil justice system is working--it is working--to protect the environment and to protect victims of polluters, and there is no reason to prefer a Federal reform for resolution of their claims. State courts, unlike the Federal courts, have a sound understanding of evolving local law and the open dockets to resolve conflicts in a manner that would protect our society from polluters. In fact, we ought to at least ask, Do the Federal courts want this? The Judicial Conference, headed by Chief Justice William Rehnquist, wrote a letter in March of this year opposing this bill because its ``provisions would add substantially to the workload of the federal courts and are inconsistent with principles of federalism.'' They singled out serious environmental disasters as an example of class actions that should remain in State courts. Chief Justice Rehnquist and the Judicial Conference said: What are you doing to us? Why are you sending these cases over there? State courts can handle them better. I would be a very wealthy person if I had a couple dollars for every time I heard speeches or statements from my fellow Senators about how we have to better respect our individual States. After all, that is why we have a Senate. Each one of the 50 States has equal representation here to make sure the States are not subsumed in the Federal system. Those who would support this bill are giving the back of their hand to their States and saying: You are not smart enough, you are not good enough to take care of the laws of your own State. Numerous organizations devoted to the protection of the environment oppose this bill, including Clean Water Action, Earthjustice, the Environmental Working Group, Friends of the Earth, Greenpeace, the Mineral Policy Center, the Natural Resources Defense Council, the Sierra Club, and the U.S. Public Interest Research Group. These advocates conclude, in a letter, this bill ``would benefit polluters at the expense of people and communities harmed by public health and environmental disasters.'' I ask unanimous consent their letter be printed in the Record.

Mr. LEAHY. Added to the ``removal-at-any-time'' problems in the legislation are the hurdles established by Senator Feinstein's amendment adopted in committee. I know it is well intentioned, but the amendment does set up cumbersome requirements for determining whether an action is to be heard in State or Federal court. It provides that a Federal judge may use five factors in deciding jurisdiction of a class action where between one-third and two-thirds of the plaintiffs are from the same State as primary defendants; and if two-thirds of the plaintiffs are from the same State as the primary defendants, then the case will stay in State court. The bill fails to determine when this measurement takes place during the litigation. It has been my experience that membership in class actions frequently changes. So the two-thirds provision or the middle- third provision which is subject to judicial discretion could open up easily to judicial gamesmanship. The defendant could try to remove a case from State court at the discovery stage. Someone takes a deposition and finds, oops, this is going against us, let's get it out of here. Or the judge has made a ruling they do not like and they know they can never win on appeal, let's get it out of here, even after all the evidence is presented, or after closing arguments. Actually, the way the bill is currently written, it could be done while the jury is deliberating. Considering the vast resources of defendants in many class actions as compared to plaintiffs, it will make it more difficult for class members to ever have a final ruling, where the bill will cause unnecessary and expensive litigation. It favors corporate defendants. I like to think the scale of justice is even. This tilts the scale of justice and it will bounce right off the stand. If there were ever a time to think about protecting the consumers, the investors, and the employees, think of Enron, WorldCom, and other corporate scandals. Think of the employees who worked so hard and were told to put their money in the corporate pension program. Look what has happened. Look at the employee investors. I am not too concerned about some of the leaders of a company like that. They might have to sell one of the $50 million homes or they no longer will have several billions of dollars but rather several hundred million, but I am worried about the people who truly had their lifesavings or their pension destroyed or their company destroyed. This bill does nothing to make the Enrons of the world more accountable for their actions. Actually, the bill undercuts Congress's other efforts to make the companies more responsible or accountable for their misdeeds or more susceptible to penalties when they do wrong. The legislation makes it more difficult for the victims of corporate wrongdoing to join to make those companies accountable. It seems to me that is the exact opposite to the approach we should be taking. Now, not surprisingly, consumers and those representing consumers object strongly to the enactment of this legislation. I ask unanimous consent to have printed in the Record letters from numerous consumer advocates in opposition to this bill.

Mr. LEAHY

Mr. LEAHY. Mr. President, the selection of Margaret Catharine Rodgers to be the nominee for the Northern District of Florida serves as an example of how the judicial nominations process should work. Judge Rodgers was interviewed and recommended by Florida's bipartisan judicial selection commission. This selection commission was created by Senators Graham and Nelson in negotiated agreement with the White House and it has produced a consistent stream of talented and well-respected attorneys for the lifetime appointments on the district courts in Florida. Judge Rodgers currently serves the Northern District of Florida as a magistrate judge. She received a ``well qualified'' rating from the American Bar Association, having proven her qualifications in the district in which she will serve, on the bench, in private practice, and in her community. Prior to becoming a lawyer, Judge Rodgers served for several years in the United States Army and received several commendations for her service. With tonight's vote on Judge Rodgers' nomination, the Senate will have confirmed a total of 165 judicial nominations of President George W. Bush. Despite all of the false charges of obstruction leveled by the White House and Republican Senators, we have now reached a historic level of confirmations of judicial nominations. In less than 3 years, President Bush has now equaled the total number of judges appointed by President Reagan in his first 4 full years in office. Republicans tout President Reagan as the ``all-time champ'' in judicial appointments and yet he attained 165 confirmations at the conclusion of his first 4-year term in office, while President Bush has achieved the same benchmark in less than 3 years in office. President Reagan's entire first term saw a Republican Senate majority enabling the President to achieve that milestone. That Democrats in the Senate have cooperated with President Bush to exceed it is extraordinary and reveals the truth about the confirmation process. Only a few of the most extreme of President Bush's judicial nominees have been blocked. Of course, you will not hear Republican Senators or the White House tell the public today that this historic level of appointments has been reached, that President Bush has matched President Reagan's first-term judicial appointments with 15 months remaining in his term. You will not hear that truth from this administration. The Senate has opposed only the most extreme nominees and has moved cooperatively and expeditiously on less controversial nominees. The record will reflect that Democrats have worked hard to balance the need to fill vacancies on the Federal bench with the imperative that the judges chosen will be fair to all people. With this confirmation, there are now only 40 vacant seats in the Federal bench. Until this year, this mark had not been reached in 13 years or during the entire Clinton administration, when more than 50 judicial nominees were blocked from receiving confirmation votes. Had we not authorized almost 20 judgeships last year, the vacancies might be in the 20's. President Bush is on pace to appoint judges far in excess of those of any other President in American history. In fact, this President has had so many vacant seats to fill because Senate Republicans did such an effective job of blocking scores of Clinton nominees with impunity. When I became chairman of the Judiciary Committee in mid-2001, we inherited 110 vacancies. In a little more than 2 years since then Democrats and Republicans have worked together to confirm 165 judicial nominees of President Bush. The White House and the Republicans in the Senate refuse to declare themselves victorious in their efforts to appoint a historic number of judges chosen by the President. They insist on seeing the glass half empty, when it is nearly full to the brim. They refuse to take any steps to address the fact that fully 20 percent of President Clinton's judicial nominees were blocked from getting votes when Republicans controlled the Senate. In those 6 years, they allowed only 248 judicial nominees to be confirmed and blocked another 63. Today, in less than 3 years, President Bush has achieved what it took President Reagan four full years to achieve 165 judicial confirmations. Nominations from bipartisan selection commissions can proceed expeditiously. Judge Rodgers received a committee hearing within weeks of her paperwork being completed and she will be confirmed less than a month after her hearing. Her confirmation could have occurred even sooner since she has been pending on the floor for several weeks but I am happy that the majority leader has decided to turn to her confirmation this afternoon. Judge Rodgers' appointment to the district court in the Northern District of Florida will bring her legal career full circle since her first job out of law school was as a judicial clerk on this very court. I am pleased to cast a vote for her confirmation today and I congratulate Judge Rodgers and her family.