Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, last year when I voted to support passage of the Homeland Security Act, HSA, I voiced concerns about several flaws in the legislation. I called for the Administration and my colleagues on both sides of the aisle to monitor implementation of the new law and to craft corrective legislation in the 108th Congress. One of my chief concerns with the HSA was a subtitle of the act that granted an extraordinarily broad exemption to the Freedom of Information Act, FOIA, in exchange for the cooperation of private companies in sharing information with the government regarding vulnerabilities in the nation's critical infrastructure. Unfortunately, the law that was enacted undermines Federal and State sunshine laws permitting the American people to know what their government is doing. Rather than increasing security by encouraging private sector disclosure to the government, it guts FOIA at the expense of our national security and public health and safety. On March 16, we mark Freedom of Information Day, which falls on the anniversary of James Madison's birthday. Madison said, ``A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.'' As a long- time supporter of open government, I believe we must heed Madison's warning and revisit the potentially damaging limitations placed on access to information by the HSA. I rise today to introduce legislation with my distinguished colleagues Senator Levin, Senator Jeffords, Senator Lieberman, and Senator Byrd to restore the integrity of FOIA. I want to thank my colleagues for working with me on this important issue of public oversight. This bill protects Americans' ``right to know'' while simultaneously providing security to those in the private sector who voluntarily submit critical infrastructure records to the newly created Department of Homeland Security, DHS. Encouraging cooperation between the private sector and the government to keep our critical infrastructure systems safe from terrorist attacks is a goal we all support. But the appropriate way to meet this goal is a source of great debate--a debate that has been all but ignored since the enactment of the HSA last year. The HSA created a new FOIA exemption for ``critical infrastructure information.'' That broadly defined term applies to information regarding a variety of facilities--such as privately operated power plants, bridges, dams, ports, or chemical plants--that might be targeted for a terrorist attack. In HSA negotiations last fall, House Republicans and the administration promoted language that they described as necessary to encourage owners of such facilities to identify vulnerabilities in their operations and share that information with the Department of Homeland Security, DHS. The stated goal was to ensure that steps could be taken to ensure the facilities' protection and proper functioning. In fact, such descriptions of the legislation were disingenuous. These provisions, which were eventually enacted in the HSA, shield from FOIA almost any voluntarily submitted document stamped by the facility owner as ``critical infrastructure.'' This is true no matter how tangential the content of that document may be to the actual security of a facility. The law effectively allows companies to hide information about public health and safety from American citizens simply by submitting it to DHS. The enacted provisions were called ``deeply flawed'' by Mark Tapscott of the Heritage Foundation in a November 20, 2002 Washington Post op-ed. ``Too Many Secrets,'' Washington Post, November 20, 2002, at A25. He argued that the ``loophole'' created by the law ``could be manipulated by clever corporate and government operators to hide endless varieties of potentially embarrassing and/or criminal information from public view.'' In addition, under the HSA, disclosure by private facilities to DHS neither obligates the private company to address the vulnerability, nor requires DHS to fix the problem. For example, in the case of a chemical spill, the law bars the government from disclosing information without the written consent of the company that caused the pollution. As the Washington Post editorialized on February 10, 2003, ``A company might preempt environmental regulators by `voluntarily' divulging incriminating material, thereby making it unavailable to anyone else.'' ``Fix This Loophole,'' Washington Post, February 10, 2003, at A20. The new law also 1. shields the companies from lawsuits to compel disclosure, 2. criminalizes otherwise legitimate whistleblower activity by DHS employees, and 3. preempts any state or local disclosure laws. The Restore FOIA bill I introduce today with Senators Levin, Jeffords, Lieberman, and Byrd is identical to language I negotiated with Senators Levin and Bennett last summer when the HSA was debated by the Governmental Affairs Committee. Senator Bennett stated in the Committee's July 25, 2003 mark up that the administration had endorsed the compromise. He also said that industry groups had reported to him that the compromise language would make it possible for them to share information with the government without fear of the information being released to competitors or to other agencies that might accidentally reveal it. The Governmental Affairs Committee reported out the compromise language that day. Unfortunately, much more restrictive House language was eventually signed into law. The February 10 Post editorial called the Leahy-Levin-Bennett language ``a compromise that would accomplish the reasonable purpose'' of ``encouraging companies to share information with the government about infrastructure that might be vulnerable to terrorist attack without such broad harmful effects.'' Id. The Post editorial was titled, ``Fix This Loophole,'' which is exactly what my colleagues and I hope to accomplish with the introduction of this bill. Id. The Restore FOIA bill would correct the problems in the HSA in several ways. First, it limits the FOIA exemption to relevant ``records'' submitted by the private sector, such that only those that actually pertain to critical infrastructure safety are protected. ``Records'' is the standard category referred to in FOIA. This corrects the effective free pass given to industry by the HSA for any information it labels ``critical infrastructure.'' Second, unlike the HSA, the Restore FOIA bill allows for government oversight, including the ability to use and share the records within and between agencies. It does not limit the use of such information by the government, except to prohibit public disclosure where such information is appropriately exempted under FOIA. Third, it protects the actions of legitimate whistleblowers, rather than criminalizing their acts. Fourth, it does not provide civil immunity to companies that voluntarily submit information. This corrects a flaw in the current law, which would prohibit such information from being used directly in civil suits by government or private parties. Fifth, unlike the HSA, the Restore FOIA bill allows local authorities to apply their own sunshine laws. The Restore FOIA bill does not preempt any state or local disclosure laws for information obtained outside the Department of Homeland Security. Likewise, it does not restrict the use of such information by state agencies. Finally, the Restore FOIA bill does not restrict congressional use or disclosure of voluntarily submitted critical infrastructure information. The HSA language was unclear on this point, and even the Congressional Research Service could not say for certain that members of Congress or their staff would not be criminally liable. Homeland Security Act of 2002: Critical Infrastructure Information Act, February 29, 2003, CRS Report for Congress, Order Code RL31762, at 14-15. These changes to the HSA would accomplish the stated goals of the critical infrastructure provisions in the HSA without tying the hands of the government in its efforts to protect Americans and without cutting the public out of the loop. The Administration has flip-flopped on how to best approach the issue of critical infrastructure information. The Administration's original June 18, 2002, legislative proposal establishing a new department carved out an FOIA exemption, in section 204, and required non- disclosure of any ``information'' ``voluntarily'' provided to the new Department of Homeland Security by ``non-Federal entities or individuals'' pertaining to ``infrastructure vulnerabilities or other vulnerabilities to terrorism'' in the possession of, or that passed through, the new department. Critical terms, such as ``voluntarily provided,'' were undefined. The Judiciary Committee had an opportunity to query Governor Ridge about the Administration's proposal on June 26, 2002, when the Administration reversed its long-standing position and allowed him to testify in his capacity as the Director of the Transition Planning Office. Governor Ridge's testimony at that hearing is instructive. He seemed to appreciate the concerns expressed by Members about the President's June 18 proposal and to be willing to work with us in the legislative process to find common ground. On the FOIA issue, he described the Administration's goal to craft ``a limited statutory exemption to the Freedom of Information Act'' to help ``the Department's most important missions [which] will be to protect our Nation's critical infrastructure.'' (June 26, 2002 Hearing, Tr., p. 24). Governor Ridge explained that to accomplish this, the Department must be able to ``collect information, identifying key assets and components of that infrastructure, evaluate vulnerabilities, and match threat assessments against those vulnerabilities.'' (Id., at p. 23). I do not understand why some have insisted that FOIA and our national security are inconsistent. Before the HSA was enacted, the FOIA already exempted from disclosure matters that are classified; trade secret, commercial and financial information, which is privileged and confidential; various law enforcement records and information, including confidential source and informant information; and FBI records pertaining to foreign intelligence or counterintelligence, or international terrorism. These already broad exemptions in the FOIA were designed to protect national security and public safety and to ensure that the private sector can provide needed information to the government. Prior to enactment of the HSA, the FOIA exempted from disclosure any financial or commercial information provided voluntarily to the government, if it was of a kind that the provider would not customarily make available to the public. Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc). Such information enjoyed even stronger nondisclosure protections than did material that the government requested. Applying this exception, Federal regulatory agencies safeguarded the confidentiality of all kinds of critical infrastructure information, like nuclear power plant safety reports (Critical Mass, 975 F.2d at 874), information about product manufacturing processes and internal security measures (Bowen v. Food & Drug Admin., 925 F.2d 1225 (9th Cir. 1991), design drawings of airplane parts (United Technologies Corp. by Pratt & Whitney v. F.A.A., 102 F.3d 688 (2d Cir. 1996)), and technical data for video conferencing software (Gilmore v. Dept. of Energy, 4 F. Supp.2d 912 (N.D. Cal. 1998)). The head of the FBI National Infrastructure Protection Center, NIPC, testified more than five years ago, in September, 1998, that the ``FOIA excuse'' used by some in the private sector for failing to share information with the government was, in essence, baseless. He explained the broad application of FOIA exemptions to protect from disclosure information received in the context of a criminal investigation or a ``national security intelligence'' investigation, including information submitted confidentially or even anonymously. [Sen. Judiciary Subcommittee on Technology, Terrorism, and Government Information, Hearing on Critical Infrastructure Protection: Toward a New Policy Directive, S. HRG. 105-763, March 17 and June 10, 1998, at p. 107] The FBI also used the confidential business record exemption under (b)(4) ``to protect sensitive corporate information, and has, on specific occasions, entered into agreements indicating that it would do so prospectively with reference to information yet to be received.'' NIPC was developing policies ``to grant owners of information certain opportunities to assist in the protection of the information (e.g., by `sanitizing the information themselves') and to be involved in decisions regarding further dissemination by the NIPC.'' Id. In short, the former Administration witness stated: Sharing between the private sector and the government occasionally is hampered by a perception in the private sector that the government cannot adequately protect private sector information from disclosure under the Freedom of Information Act, FOIA. The NIPC believes that this perception is flawed in that both investigative and infrastructure protection information submitted to NIPC are protected from FOIA disclosure under current law. (Id.) Nevertheless, for more than five years, businesses continued to seek a broad FOIA exemption that also came with special legal protections to limit their civil and criminal liability. That business wish list was largely granted in the Homeland Security Act. At the Senate Judiciary Committee hearing with Governor Ridge, I expressed my concern that an overly broad FOIA exemption would encourage government complicity with private firms to keep secret information about critical infrastructure vulnerabilities, reduce the incentive to fix the problems and end up hurting rather than helping our national security. In the end, more secrecy may undermine rather than foster security. Governor Ridge seemed to appreciate these risks, and said he was ``anxious to work with the Chairman and other members of the committee to assure that the concerns that [had been] raised are properly addressed.'' Id. at p. 24. He assured us that ``[t]his Administration is ready to work together with you in partnership to get the job done. This is our priority, and I believe it is yours as well.'' Id. at p. 25. This turned out to be an empty promise. Almost before the ink was dry on the Administration's earlier June proposal, on July 10, 2002, the Administration proposed to substitute a much broader FOIA exemption that would (1) exempt from disclosure under the FOIA critical infrastructure information voluntarily submitted to the new department that was designated as confidential by the submitter unless the submitter gave prior written consent, (2) provide limited civil immunity for use of the information in civil actions against the company, with the likely result that regulatory actions would be preceded by litigation by companies that submitted designated information to the department over whether the regulatory action was prompted by a confidential disclosure, (3) preempt state sunshine laws if the designated information is shared with state or local government agencies, (4) impose criminal penalties of up to one year imprisonment on government employees who disclosed the designated information, and (5) antitrust immunity for companies that joined together with agency components designated by the President to promote critical infrastructure security. Despite the Administration's promulgation of two separate proposals for a new FOIA exemption in as many weeks, in July, Director Ridge's Office of Homeland Security released The National Strategy for Homeland Security, which appeared to call for more study of the issue before legislating. Specifically, this report called upon the Attorney General to ``convene a panel to propose any legal changes necessary to enable sharing of essential homeland security information between the government and the private sector.'' (P. 33) The need for more study of the Administration's proposed new FOIA exemption was made amply clear by its possible adverse environmental, public health and safety affects. Keeping secret problems in a variety of critical infrastructures would simply remove public pressure to fix the problems. Moreover, several environmental groups pointed out that, under the Administration's proposal, companies could avoid enforcement action by ``voluntarily'' providing information about environmental violations to the EPA, which would then be unable to use the information to hold the company accountable and also would be required to keep the information confidential. It would bar the government from disclosing information about spills or other violations without the written consent of the company that caused the pollution. I worked on a bipartisan basis with many interested stakeholders from environmental, civil liberties, human rights, business and government watchdog groups to craft a compromise FOIA exemption that did not grant the business sector's wish-list but did provide additional nondisclosure protections for certain records without jeopardizing the public health and safety. At the request of Chairman Lieberman for the Judiciary Committee's views on the new department, I shared my concerns about the Administration's proposed FOIA exemption and then worked with Members of the Governmental Affairs Committee, in particular Senator Levin and Senator Bennett, to craft a more narrow and responsible exemption that accomplishes the Administration's goal of encouraging private companies to share records of critical infrastructure vulnerabilities with the new Department of Homeland Security without providing incentives to ``game'' the system of enforcement of environmental and other laws designed to protect our nation's public health and safety. We refined the FOIA exemption in a manner that satisfied the Administration's stated goal, while limiting the risks of abuse by private companies or government agencies. This compromise solution was supported by the Administration and other Members of the Committee on Governmental Affairs and was unanimously adopted by that Committee at the markup of the Homeland Security Department bill on July 25, 2002. The compromise which I now introduce as a free standing bill would exempt from the FOIA certain records pertaining to critical infrastructure threats and vulnerabilities that are furnished voluntarily to the new Department and designated by the provider as confidential and not customarily made available to the public. Notably, the compromise FOIA exemption made clear that the exemption only covered ``records'' from the private sector, not all ``information'' provided by the private sector and thereby avoided the adverse result of government agency-created and generated documents and databases being put off-limits to the FOIA simply if private sector ``information'' is incorporated. Moreover, the compromise FOIA exemption clearly defined what records may be considered ``furnished voluntarily,'' which did not cover records used ``to satisfy any legal requirement or obligation to obtain any grant, permit, benefit (such as agency forbearance, loans, or reduction or modifications of agency penalties or rulings), or other approval from the Government.'' The FOIA compromise exemption further ensured that portions of records that are not covered by the exemption would be released pursuant to FOIA requests. This compromise did not provide any civil liability or antitrust immunity that could be used to immunize bad actors or frustrate regulatory enforcement action, nor did the compromise preempt state or local sunshine laws. Unfortunately, the version of the HSA that we enacted last November jettisoned the bipartisan compromise on the FOIA exemption, worked out in the Senate with the Administration's support, and replaced it with a big-business wish-list gussied up in security garb. The HSA's FOIA exemption makes off-limits to the FOIA much broader categories of ``information'' and grants businesses the legal immunities and liability protections they have sought so vigorously for over five years. This law goes far beyond what is needed to achieve the laudable goal of encouraging private sector companies to help protect our critical infrastructure. Instead, it ties the hands of the federal regulators and law enforcement agencies working to protect the public from imminent threats. It gives a windfall to companies who fail to follow federal health and safety standards. Most disappointingly, it undermines the goals of openness in government that the FOIA was designed to achieve. In short, the FOIA exemption in the HSA represents the most severe weakening of the Freedom of Information Act in its 36- year history. In the end, the broad secrecy protections provided to critical infrastructure information in this bill will promote more secrecy, which may undermine rather than foster national security. In addition, the immunity provisions in the bill will frustrate enforcement of the laws that protect the public's health and safety. Let me explain in greater detail. The FOIA exemption enacted in the HSA allows companies to stamp or designate certain information as critical infrastructure information, or ``CII,'' and then submit this information about their operations to the government either in writing or orally, and thereby obtain a blanket shield from FOIA's disclosure mandates as well as other protections. A Federal agency may not disclose or use voluntarily-submitted and CII-marked information, except for a limited ``informational purpose,'' such as ``analysis, warning, interdependency study, recovery, reconstitution,'' without the company's consent. Even when using the information to warn the public about potential threats to critical infrastructure, the bill requires agencies to take steps to protect from disclosure the source of the CII information and other ``business sensitive'' information. The law also contains an unprecedented provision that threatens jail time and job loss to any government employee who happens to disclose any critical infrastructure information that a company has submitted and wants to keep secret. These penalties for using the CII information in an unauthorized fashion or for failing to take steps to protect disclosure of the source of the information are severe and will chill any release of CII information--not just when a FOIA request comes in, but in all situations, no matter the circumstance. Criminalizing disclosures not of classified information or national security related information, but of information that a company decides it does not want public--is an effective way to quash discussion and debate over many aspects of the government's work. In fact, under the HSA, CII information is granted more comprehensive protection under Federal criminal laws than classified information. This provision of the law has potentially disastrous consequences. If an agency is given information from an internet service provider, ISP, about cyberattack vulnerabilities, agency employees will have to think twice about sharing that information with other ISPs for fear that, without the consent of the ISP to use the information, even a warning might cost their jobs or risk criminal prosecution. This provision means that if a Federal regulatory agency needs to issue a regulation to protect the public from threats of harm, it cannot rely on any voluntarily submitted information--bringing the normal regulatory process to a grinding halt. Public health and law enforcement officials need the flexibility to decide how and when to warn or prepare the public in the safest, most effective manner. They should not have to get ``sign off'' from a Fortune 500 company to do so. While the HSA risks making it harder for the government to protect American families, it makes it much easier for companies to escape responsibility when they violate the law by giving them unprecedented immunity from civil and regulatory enforcement actions. Once a business declares that information about its practices relates to critical infrastructure and is ``voluntarily'' provided, it can then prevent the Federal Government from disclosing it not just to the public, but also to a court in a civil action. This means that an agency receiving CII- marked submissions showing invasions of employee or customer privacy, environmental pollution, or government contracting fraud will be unable to use that information in a civil action to hold that company accountable. Even if the regulatory agency obtains the information necessary to bring an enforcement action from an alternative source, the company will be able to tie the government up in protracted litigation over the source of the information. For example, if a company submits information that its factory is leaching arsenic in ground water, that information may not be turned over to local health authorities to use in any enforcement proceeding nor turned over to neighbors who were harmed by drinking the water for use in a civil tort action. Moreover, even if EPA tries to bring an action to stop the company's wrongdoing, the ``use immunity'' provided in the HSA will tie the agency up in litigation making it prove where it got the information and whether it is tainted as ``fruit of the poisonous tree''--i.e., obtained from the company under the ``critical infrastructure program.'' Similarly, if the new Department of Homeland Security receives information from a bio-medical laboratory about its security vulnerabilities, and anthrax is released from the lab three weeks later, the Department will not be able to warn the public promptly about how to protect itself without consulting with and trying to get the consent of the laboratory in order to avoid the risk of job loss or criminal prosecution for a non-consensual disclosure. Moreover, if the laboratory is violating any state, local or federal regulation in its handling of the anthrax, the Department will not be able to turn over to another Federal agency, such as the EPA or the Department of Health and Human Services, or to any State or local health officials, information or documents relating to the laboratory's mishandling of the anthrax for use in any enforcement proceedings against the laboratory, or in any wrongful death action, should the laboratory's mishandling of the anthrax result in the death of any person. The law specifically states that such CII-marked information ``shall not, without the written consent of the person or entity submitting such information, be used directly by such agency, any other Federal, State, or local authority, or any third party, in any civil action arising under Federal or State law if such information is submitted in good faith.'' [H.R. 5710, section 214(a)(1)(C)] Most businesses are good citizens and take seriously their obligations to the government and the public, but this ``disclose-and- immunize'' provision is subject to abuse by those businesses that want to exploit legal technicalities to avoid regulatory guidelines. The HSA lays out the perfect blueprint to avoid legal liability: funnel damaging information into this voluntary disclosure system and pre-empt the government or others harmed by the company's actions from being able to use it against the company. This is not the kind of two-way public-private cooperation that our country needs. The scope of the information that is covered by the new HSA FOIA exemption is overly broad and undermines the openness in government that FOIA was intended to guarantee. Under this law, information about virtually every important sector of our economy that today the public has a right to see can be shut off from public view simply by labeling it ``critical infrastructure information.'' Prior to enactment of the HSA, under FOIA standards, courts had required federal agencies to disclose 1. pricing information in contract bids so citizens can make sure the government is wisely spending their taxpayer dollars; 2. compliance reports that allow constituents to insist that government contractors comply with federal equal opportunity mandates; and 3. banks' financial data so the public can ensure that federal agencies properly approve bank mergers. Without access to this kind of information, it will be harder for the public to hold its government accountable. Under the HSA, all of this information may be marked CII information and kept out of public view. The HSA FOIA exemption goes so far in exempting such a large amount of material from FOIA's disclosure requirements that it undermines government openness without making any real gains in safety for families in Vermont and across America. We do not keep America safer by chilling Federal officials from warning the public about threats to their health and safety. We do not ensure our nation's security by refusing to tell the American people whether or not their federal agencies are doing their jobs or their government is spending their hard earned tax dollars wisely. We do not encourage real two-way cooperation by giving companies protection from civil liability when they break the law. We do not respect the spirit of our democracy when we cloak in secrecy the workings of our government from the public we are elected to serve. The argument over the scope of the FOIA and unilateral executive power to shield matters from public scrutiny goes to the heart of our fundamental right to be an educated electorate aware of what our government is doing. The Rutland Herald got it right in a November 26, 2002 editorial that explained: ``The battle was not over the right of the government to hold sensitive, classified information secret. The government has that right. Rather, the battle was over whether the government would be required to release anything it sought to withhold.'' We need to fix this troubling restriction on public accountability. Exempting the new Department from laws that ensure responsibility to the Congress and to the American people makes for a tenuous start not the sure footing we all want for the success and endurance of this new Department. I urge my colleagues to support the Restoration of Freedom of Information Act of 2003. I ask unanimous consent to print the editorials I mentioned and several letters of support of the Restore FOIA bill in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, last year when I voted to support passage of the Homeland Security Act, HSA, I voiced concerns about several flaws in the legislation. I called for the Administration and my colleagues on both sides of the aisle to monitor implementation of the new law and to craft corrective legislation in the 108th Congress. One of my chief concerns with the HSA was a subtitle of the act that granted an extraordinarily broad exemption to the Freedom of Information Act, FOIA, in exchange for the cooperation of private companies in sharing information with the government regarding vulnerabilities in the nation's critical infrastructure. Unfortunately, the law that was enacted undermines Federal and State sunshine laws permitting the American people to know what their government is doing. Rather than increasing security by encouraging private sector disclosure to the government, it guts FOIA at the expense of our national security and public health and safety. On March 16, we mark Freedom of Information Day, which falls on the anniversary of James Madison's birthday. Madison said, ``A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.'' As a long- time supporter of open government, I believe we must heed Madison's warning and revisit the potentially damaging limitations placed on access to information by the HSA. I rise today to introduce legislation with my distinguished colleagues Senator Levin, Senator Jeffords, Senator Lieberman, and Senator Byrd to restore the integrity of FOIA. I want to thank my colleagues for working with me on this important issue of public oversight. This bill protects Americans' ``right to know'' while simultaneously providing security to those in the private sector who voluntarily submit critical infrastructure records to the newly created Department of Homeland Security, DHS. Encouraging cooperation between the private sector and the government to keep our critical infrastructure systems safe from terrorist attacks is a goal we all support. But the appropriate way to meet this goal is a source of great debate--a debate that has been all but ignored since the enactment of the HSA last year. The HSA created a new FOIA exemption for ``critical infrastructure information.'' That broadly defined term applies to information regarding a variety of facilities--such as privately operated power plants, bridges, dams, ports, or chemical plants--that might be targeted for a terrorist attack. In HSA negotiations last fall, House Republicans and the administration promoted language that they described as necessary to encourage owners of such facilities to identify vulnerabilities in their operations and share that information with the Department of Homeland Security, DHS. The stated goal was to ensure that steps could be taken to ensure the facilities' protection and proper functioning. In fact, such descriptions of the legislation were disingenuous. These provisions, which were eventually enacted in the HSA, shield from FOIA almost any voluntarily submitted document stamped by the facility owner as ``critical infrastructure.'' This is true no matter how tangential the content of that document may be to the actual security of a facility. The law effectively allows companies to hide information about public health and safety from American citizens simply by submitting it to DHS. The enacted provisions were called ``deeply flawed'' by Mark Tapscott of the Heritage Foundation in a November 20, 2002 Washington Post op-ed. ``Too Many Secrets,'' Washington Post, November 20, 2002, at A25. He argued that the ``loophole'' created by the law ``could be manipulated by clever corporate and government operators to hide endless varieties of potentially embarrassing and/or criminal information from public view.'' In addition, under the HSA, disclosure by private facilities to DHS neither obligates the private company to address the vulnerability, nor requires DHS to fix the problem. For example, in the case of a chemical spill, the law bars the government from disclosing information without the written consent of the company that caused the pollution. As the Washington Post editorialized on February 10, 2003, ``A company might preempt environmental regulators by `voluntarily' divulging incriminating material, thereby making it unavailable to anyone else.'' ``Fix This Loophole,'' Washington Post, February 10, 2003, at A20. The new law also 1. shields the companies from lawsuits to compel disclosure, 2. criminalizes otherwise legitimate whistleblower activity by DHS employees, and 3. preempts any state or local disclosure laws. The Restore FOIA bill I introduce today with Senators Levin, Jeffords, Lieberman, and Byrd is identical to language I negotiated with Senators Levin and Bennett last summer when the HSA was debated by the Governmental Affairs Committee. Senator Bennett stated in the Committee's July 25, 2003 mark up that the administration had endorsed the compromise. He also said that industry groups had reported to him that the compromise language would make it possible for them to share information with the government without fear of the information being released to competitors or to other agencies that might accidentally reveal it. The Governmental Affairs Committee reported out the compromise language that day. Unfortunately, much more restrictive House language was eventually signed into law. The February 10 Post editorial called the Leahy-Levin-Bennett language ``a compromise that would accomplish the reasonable purpose'' of ``encouraging companies to share information with the government about infrastructure that might be vulnerable to terrorist attack without such broad harmful effects.'' Id. The Post editorial was titled, ``Fix This Loophole,'' which is exactly what my colleagues and I hope to accomplish with the introduction of this bill. Id. The Restore FOIA bill would correct the problems in the HSA in several ways. First, it limits the FOIA exemption to relevant ``records'' submitted by the private sector, such that only those that actually pertain to critical infrastructure safety are protected. ``Records'' is the standard category referred to in FOIA. This corrects the effective free pass given to industry by the HSA for any information it labels ``critical infrastructure.'' Second, unlike the HSA, the Restore FOIA bill allows for government oversight, including the ability to use and share the records within and between agencies. It does not limit the use of such information by the government, except to prohibit public disclosure where such information is appropriately exempted under FOIA. Third, it protects the actions of legitimate whistleblowers, rather than criminalizing their acts. Fourth, it does not provide civil immunity to companies that voluntarily submit information. This corrects a flaw in the current law, which would prohibit such information from being used directly in civil suits by government or private parties. Fifth, unlike the HSA, the Restore FOIA bill allows local authorities to apply their own sunshine laws. The Restore FOIA bill does not preempt any state or local disclosure laws for information obtained outside the Department of Homeland Security. Likewise, it does not restrict the use of such information by state agencies. Finally, the Restore FOIA bill does not restrict congressional use or disclosure of voluntarily submitted critical infrastructure information. The HSA language was unclear on this point, and even the Congressional Research Service could not say for certain that members of Congress or their staff would not be criminally liable. Homeland Security Act of 2002: Critical Infrastructure Information Act, February 29, 2003, CRS Report for Congress, Order Code RL31762, at 14-15. These changes to the HSA would accomplish the stated goals of the critical infrastructure provisions in the HSA without tying the hands of the government in its efforts to protect Americans and without cutting the public out of the loop. The Administration has flip-flopped on how to best approach the issue of critical infrastructure information. The Administration's original June 18, 2002, legislative proposal establishing a new department carved out an FOIA exemption, in section 204, and required non- disclosure of any ``information'' ``voluntarily'' provided to the new Department of Homeland Security by ``non-Federal entities or individuals'' pertaining to ``infrastructure vulnerabilities or other vulnerabilities to terrorism'' in the possession of, or that passed through, the new department. Critical terms, such as ``voluntarily provided,'' were undefined. The Judiciary Committee had an opportunity to query Governor Ridge about the Administration's proposal on June 26, 2002, when the Administration reversed its long-standing position and allowed him to testify in his capacity as the Director of the Transition Planning Office. Governor Ridge's testimony at that hearing is instructive. He seemed to appreciate the concerns expressed by Members about the President's June 18 proposal and to be willing to work with us in the legislative process to find common ground. On the FOIA issue, he described the Administration's goal to craft ``a limited statutory exemption to the Freedom of Information Act'' to help ``the Department's most important missions [which] will be to protect our Nation's critical infrastructure.'' (June 26, 2002 Hearing, Tr., p. 24). Governor Ridge explained that to accomplish this, the Department must be able to ``collect information, identifying key assets and components of that infrastructure, evaluate vulnerabilities, and match threat assessments against those vulnerabilities.'' (Id., at p. 23). I do not understand why some have insisted that FOIA and our national security are inconsistent. Before the HSA was enacted, the FOIA already exempted from disclosure matters that are classified; trade secret, commercial and financial information, which is privileged and confidential; various law enforcement records and information, including confidential source and informant information; and FBI records pertaining to foreign intelligence or counterintelligence, or international terrorism. These already broad exemptions in the FOIA were designed to protect national security and public safety and to ensure that the private sector can provide needed information to the government. Prior to enactment of the HSA, the FOIA exempted from disclosure any financial or commercial information provided voluntarily to the government, if it was of a kind that the provider would not customarily make available to the public. Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc). Such information enjoyed even stronger nondisclosure protections than did material that the government requested. Applying this exception, Federal regulatory agencies safeguarded the confidentiality of all kinds of critical infrastructure information, like nuclear power plant safety reports (Critical Mass, 975 F.2d at 874), information about product manufacturing processes and internal security measures (Bowen v. Food & Drug Admin., 925 F.2d 1225 (9th Cir. 1991), design drawings of airplane parts (United Technologies Corp. by Pratt & Whitney v. F.A.A., 102 F.3d 688 (2d Cir. 1996)), and technical data for video conferencing software (Gilmore v. Dept. of Energy, 4 F. Supp.2d 912 (N.D. Cal. 1998)). The head of the FBI National Infrastructure Protection Center, NIPC, testified more than five years ago, in September, 1998, that the ``FOIA excuse'' used by some in the private sector for failing to share information with the government was, in essence, baseless. He explained the broad application of FOIA exemptions to protect from disclosure information received in the context of a criminal investigation or a ``national security intelligence'' investigation, including information submitted confidentially or even anonymously. [Sen. Judiciary Subcommittee on Technology, Terrorism, and Government Information, Hearing on Critical Infrastructure Protection: Toward a New Policy Directive, S. HRG. 105-763, March 17 and June 10, 1998, at p. 107] The FBI also used the confidential business record exemption under (b)(4) ``to protect sensitive corporate information, and has, on specific occasions, entered into agreements indicating that it would do so prospectively with reference to information yet to be received.'' NIPC was developing policies ``to grant owners of information certain opportunities to assist in the protection of the information (e.g., by `sanitizing the information themselves') and to be involved in decisions regarding further dissemination by the NIPC.'' Id. In short, the former Administration witness stated: Sharing between the private sector and the government occasionally is hampered by a perception in the private sector that the government cannot adequately protect private sector information from disclosure under the Freedom of Information Act, FOIA. The NIPC believes that this perception is flawed in that both investigative and infrastructure protection information submitted to NIPC are protected from FOIA disclosure under current law. (Id.) Nevertheless, for more than five years, businesses continued to seek a broad FOIA exemption that also came with special legal protections to limit their civil and criminal liability. That business wish list was largely granted in the Homeland Security Act. At the Senate Judiciary Committee hearing with Governor Ridge, I expressed my concern that an overly broad FOIA exemption would encourage government complicity with private firms to keep secret information about critical infrastructure vulnerabilities, reduce the incentive to fix the problems and end up hurting rather than helping our national security. In the end, more secrecy may undermine rather than foster security. Governor Ridge seemed to appreciate these risks, and said he was ``anxious to work with the Chairman and other members of the committee to assure that the concerns that [had been] raised are properly addressed.'' Id. at p. 24. He assured us that ``[t]his Administration is ready to work together with you in partnership to get the job done. This is our priority, and I believe it is yours as well.'' Id. at p. 25. This turned out to be an empty promise. Almost before the ink was dry on the Administration's earlier June proposal, on July 10, 2002, the Administration proposed to substitute a much broader FOIA exemption that would (1) exempt from disclosure under the FOIA critical infrastructure information voluntarily submitted to the new department that was designated as confidential by the submitter unless the submitter gave prior written consent, (2) provide limited civil immunity for use of the information in civil actions against the company, with the likely result that regulatory actions would be preceded by litigation by companies that submitted designated information to the department over whether the regulatory action was prompted by a confidential disclosure, (3) preempt state sunshine laws if the designated information is shared with state or local government agencies, (4) impose criminal penalties of up to one year imprisonment on government employees who disclosed the designated information, and (5) antitrust immunity for companies that joined together with agency components designated by the President to promote critical infrastructure security. Despite the Administration's promulgation of two separate proposals for a new FOIA exemption in as many weeks, in July, Director Ridge's Office of Homeland Security released The National Strategy for Homeland Security, which appeared to call for more study of the issue before legislating. Specifically, this report called upon the Attorney General to ``convene a panel to propose any legal changes necessary to enable sharing of essential homeland security information between the government and the private sector.'' (P. 33) The need for more study of the Administration's proposed new FOIA exemption was made amply clear by its possible adverse environmental, public health and safety affects. Keeping secret problems in a variety of critical infrastructures would simply remove public pressure to fix the problems. Moreover, several environmental groups pointed out that, under the Administration's proposal, companies could avoid enforcement action by ``voluntarily'' providing information about environmental violations to the EPA, which would then be unable to use the information to hold the company accountable and also would be required to keep the information confidential. It would bar the government from disclosing information about spills or other violations without the written consent of the company that caused the pollution. I worked on a bipartisan basis with many interested stakeholders from environmental, civil liberties, human rights, business and government watchdog groups to craft a compromise FOIA exemption that did not grant the business sector's wish-list but did provide additional nondisclosure protections for certain records without jeopardizing the public health and safety. At the request of Chairman Lieberman for the Judiciary Committee's views on the new department, I shared my concerns about the Administration's proposed FOIA exemption and then worked with Members of the Governmental Affairs Committee, in particular Senator Levin and Senator Bennett, to craft a more narrow and responsible exemption that accomplishes the Administration's goal of encouraging private companies to share records of critical infrastructure vulnerabilities with the new Department of Homeland Security without providing incentives to ``game'' the system of enforcement of environmental and other laws designed to protect our nation's public health and safety. We refined the FOIA exemption in a manner that satisfied the Administration's stated goal, while limiting the risks of abuse by private companies or government agencies. This compromise solution was supported by the Administration and other Members of the Committee on Governmental Affairs and was unanimously adopted by that Committee at the markup of the Homeland Security Department bill on July 25, 2002. The compromise which I now introduce as a free standing bill would exempt from the FOIA certain records pertaining to critical infrastructure threats and vulnerabilities that are furnished voluntarily to the new Department and designated by the provider as confidential and not customarily made available to the public. Notably, the compromise FOIA exemption made clear that the exemption only covered ``records'' from the private sector, not all ``information'' provided by the private sector and thereby avoided the adverse result of government agency-created and generated documents and databases being put off-limits to the FOIA simply if private sector ``information'' is incorporated. Moreover, the compromise FOIA exemption clearly defined what records may be considered ``furnished voluntarily,'' which did not cover records used ``to satisfy any legal requirement or obligation to obtain any grant, permit, benefit (such as agency forbearance, loans, or reduction or modifications of agency penalties or rulings), or other approval from the Government.'' The FOIA compromise exemption further ensured that portions of records that are not covered by the exemption would be released pursuant to FOIA requests. This compromise did not provide any civil liability or antitrust immunity that could be used to immunize bad actors or frustrate regulatory enforcement action, nor did the compromise preempt state or local sunshine laws. Unfortunately, the version of the HSA that we enacted last November jettisoned the bipartisan compromise on the FOIA exemption, worked out in the Senate with the Administration's support, and replaced it with a big-business wish-list gussied up in security garb. The HSA's FOIA exemption makes off-limits to the FOIA much broader categories of ``information'' and grants businesses the legal immunities and liability protections they have sought so vigorously for over five years. This law goes far beyond what is needed to achieve the laudable goal of encouraging private sector companies to help protect our critical infrastructure. Instead, it ties the hands of the federal regulators and law enforcement agencies working to protect the public from imminent threats. It gives a windfall to companies who fail to follow federal health and safety standards. Most disappointingly, it undermines the goals of openness in government that the FOIA was designed to achieve. In short, the FOIA exemption in the HSA represents the most severe weakening of the Freedom of Information Act in its 36- year history. In the end, the broad secrecy protections provided to critical infrastructure information in this bill will promote more secrecy, which may undermine rather than foster national security. In addition, the immunity provisions in the bill will frustrate enforcement of the laws that protect the public's health and safety. Let me explain in greater detail. The FOIA exemption enacted in the HSA allows companies to stamp or designate certain information as critical infrastructure information, or ``CII,'' and then submit this information about their operations to the government either in writing or orally, and thereby obtain a blanket shield from FOIA's disclosure mandates as well as other protections. A Federal agency may not disclose or use voluntarily-submitted and CII-marked information, except for a limited ``informational purpose,'' such as ``analysis, warning, interdependency study, recovery, reconstitution,'' without the company's consent. Even when using the information to warn the public about potential threats to critical infrastructure, the bill requires agencies to take steps to protect from disclosure the source of the CII information and other ``business sensitive'' information. The law also contains an unprecedented provision that threatens jail time and job loss to any government employee who happens to disclose any critical infrastructure information that a company has submitted and wants to keep secret. These penalties for using the CII information in an unauthorized fashion or for failing to take steps to protect disclosure of the source of the information are severe and will chill any release of CII information--not just when a FOIA request comes in, but in all situations, no matter the circumstance. Criminalizing disclosures not of classified information or national security related information, but of information that a company decides it does not want public--is an effective way to quash discussion and debate over many aspects of the government's work. In fact, under the HSA, CII information is granted more comprehensive protection under Federal criminal laws than classified information. This provision of the law has potentially disastrous consequences. If an agency is given information from an internet service provider, ISP, about cyberattack vulnerabilities, agency employees will have to think twice about sharing that information with other ISPs for fear that, without the consent of the ISP to use the information, even a warning might cost their jobs or risk criminal prosecution. This provision means that if a Federal regulatory agency needs to issue a regulation to protect the public from threats of harm, it cannot rely on any voluntarily submitted information--bringing the normal regulatory process to a grinding halt. Public health and law enforcement officials need the flexibility to decide how and when to warn or prepare the public in the safest, most effective manner. They should not have to get ``sign off'' from a Fortune 500 company to do so. While the HSA risks making it harder for the government to protect American families, it makes it much easier for companies to escape responsibility when they violate the law by giving them unprecedented immunity from civil and regulatory enforcement actions. Once a business declares that information about its practices relates to critical infrastructure and is ``voluntarily'' provided, it can then prevent the Federal Government from disclosing it not just to the public, but also to a court in a civil action. This means that an agency receiving CII- marked submissions showing invasions of employee or customer privacy, environmental pollution, or government contracting fraud will be unable to use that information in a civil action to hold that company accountable. Even if the regulatory agency obtains the information necessary to bring an enforcement action from an alternative source, the company will be able to tie the government up in protracted litigation over the source of the information. For example, if a company submits information that its factory is leaching arsenic in ground water, that information may not be turned over to local health authorities to use in any enforcement proceeding nor turned over to neighbors who were harmed by drinking the water for use in a civil tort action. Moreover, even if EPA tries to bring an action to stop the company's wrongdoing, the ``use immunity'' provided in the HSA will tie the agency up in litigation making it prove where it got the information and whether it is tainted as ``fruit of the poisonous tree''--i.e., obtained from the company under the ``critical infrastructure program.'' Similarly, if the new Department of Homeland Security receives information from a bio-medical laboratory about its security vulnerabilities, and anthrax is released from the lab three weeks later, the Department will not be able to warn the public promptly about how to protect itself without consulting with and trying to get the consent of the laboratory in order to avoid the risk of job loss or criminal prosecution for a non-consensual disclosure. Moreover, if the laboratory is violating any state, local or federal regulation in its handling of the anthrax, the Department will not be able to turn over to another Federal agency, such as the EPA or the Department of Health and Human Services, or to any State or local health officials, information or documents relating to the laboratory's mishandling of the anthrax for use in any enforcement proceedings against the laboratory, or in any wrongful death action, should the laboratory's mishandling of the anthrax result in the death of any person. The law specifically states that such CII-marked information ``shall not, without the written consent of the person or entity submitting such information, be used directly by such agency, any other Federal, State, or local authority, or any third party, in any civil action arising under Federal or State law if such information is submitted in good faith.'' [H.R. 5710, section 214(a)(1)(C)] Most businesses are good citizens and take seriously their obligations to the government and the public, but this ``disclose-and- immunize'' provision is subject to abuse by those businesses that want to exploit legal technicalities to avoid regulatory guidelines. The HSA lays out the perfect blueprint to avoid legal liability: funnel damaging information into this voluntary disclosure system and pre-empt the government or others harmed by the company's actions from being able to use it against the company. This is not the kind of two-way public-private cooperation that our country needs. The scope of the information that is covered by the new HSA FOIA exemption is overly broad and undermines the openness in government that FOIA was intended to guarantee. Under this law, information about virtually every important sector of our economy that today the public has a right to see can be shut off from public view simply by labeling it ``critical infrastructure information.'' Prior to enactment of the HSA, under FOIA standards, courts had required federal agencies to disclose 1. pricing information in contract bids so citizens can make sure the government is wisely spending their taxpayer dollars; 2. compliance reports that allow constituents to insist that government contractors comply with federal equal opportunity mandates; and 3. banks' financial data so the public can ensure that federal agencies properly approve bank mergers. Without access to this kind of information, it will be harder for the public to hold its government accountable. Under the HSA, all of this information may be marked CII information and kept out of public view. The HSA FOIA exemption goes so far in exempting such a large amount of material from FOIA's disclosure requirements that it undermines government openness without making any real gains in safety for families in Vermont and across America. We do not keep America safer by chilling Federal officials from warning the public about threats to their health and safety. We do not ensure our nation's security by refusing to tell the American people whether or not their federal agencies are doing their jobs or their government is spending their hard earned tax dollars wisely. We do not encourage real two-way cooperation by giving companies protection from civil liability when they break the law. We do not respect the spirit of our democracy when we cloak in secrecy the workings of our government from the public we are elected to serve. The argument over the scope of the FOIA and unilateral executive power to shield matters from public scrutiny goes to the heart of our fundamental right to be an educated electorate aware of what our government is doing. The Rutland Herald got it right in a November 26, 2002 editorial that explained: ``The battle was not over the right of the government to hold sensitive, classified information secret. The government has that right. Rather, the battle was over whether the government would be required to release anything it sought to withhold.'' We need to fix this troubling restriction on public accountability. Exempting the new Department from laws that ensure responsibility to the Congress and to the American people makes for a tenuous start not the sure footing we all want for the success and endurance of this new Department. I urge my colleagues to support the Restoration of Freedom of Information Act of 2003. I ask unanimous consent to print the editorials I mentioned and several letters of support of the Restore FOIA bill in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, when Senator Santorum introduced S. 3 on February 14, the leadership immediately placed the bill on the Senate Legislative Calendar, bypassing committee consideration of the bill. I rise today to support the motion to commit the bill for consideration by the Judiciary Committee. Senators deserve the benefit of full consideration and vigorous debate before they are asked to cast a vote on such a significant and complicated issue. In fact, the Judiciary Committee has not had an opportunity to fully debate the pros and cons of this issue in a hearing since 1997. Since that time, we have welcomed many individuals to the Senate, and to the Judiciary Committee, who were not members of this body when the bill was last debated. In addition, since our last Committee hearing, there has been judicial review of similar legislation, including a Supreme Court decision, that should be fully vetted by the Judiciary Committee. The committee referral process is there for a reason and we ought to respect it. My colleagues on the other side of the aisle have repeatedly called for the Senate to follow these well-established practices. For example, the distinguished senior Senator from Oklahoma complained in relation to the prescription drug bill last year: ``What happened to the committee process? Shouldn't every member of the Finance Committee have a chance to say, `I think we can do a better job?' Maybe we can do it more efficiently or better. No, we bypass the committee and take it directly to the floor.'' Other senior Republican Senators likewise complained about the need to involve Senate Committees and their expertise in development of prescription drug legislation, energy legislation and many other matters. How quickly they have changed their position. I have some respect for the Senate's established procedures and processes. I urge all Senators to support the motion to commit this matter initially to the Judiciary Committee for a hearing and committee consideration. With Senator Hatch as the committee chair and with a majority Republican membership, I do not understand what the Republican majority fears by having fair proceedings before the committee before the Senate is asked to take final action. Amendment No. 259

Mr. LEAHY

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

Mr. LEAHY

Mr. LEAHY. Is the Senator from North Carolina going to answer the question I asked him? Is he willing to read the whole quote? The Senator from South Carolina.

Mr. LEAHY. Mr. President, I appreciate very much the distinguished majority leader trying to figure out a way to get through this impasse. It is in the tradition of majority leaders, and I have served with every majority leader since the time of Mike Mansfield. Majority leaders try to work these matters out, and I appreciate that. I urge him, in doing so, to look at the fact that Miguel Estrada has said he is willing to discuss his papers and find a way that that could be done. I think his suggestion of a hearing where questions would be asked based on that would be very workable. But I commend the distinguished majority leader for doing what is the tradition of leaders--to try to find a way through this.

Mr. LEAHY. Mr. President, would the distinguished majority leader take a moment just to make a quick observation?

Mr. LEAHY. Mr. President, I thank the Senator for being the first person on his side of the aisle to actually read my whole statement. It is obvious I was speaking of a filibuster by an anonymous hold. I welcome the Vice President to the Senate today in your capacity as President of the Senate. It is not often that we see the Vice President in the chair. With the meeting of the United Nations Security Council today and the OPEC meeting and the unsettled and threatening circumstances in so many parts of the world, from the Middle East to the Korean peninsula to Iran and Iraq, the Vice President has chosen to be in the Senate this morning. I look forward to seeing him as well if the Senate ever turns its attention to the disastrous economic situation in this country and the loss of more than 2.5 million jobs in the last two years and more than 300,000 last month. Senator Daschle and the Democratic leadership have sought for weeks to proceed to debate on S. 414, the Economic Recovery Act of 2003, which includes the First Responders Partnership Grant Act, but the Senate Republican majority has blocked debate and action. This morning, instead of debating the international situation, the need to pass an economic stimulus package, the need for increased commitment to homeland defense, legislation to provide a real prescription drug benefit for seniors or the other matters so deeply concerning Americans, we are returning in some form to debate a nomination that we have debated for over a month and on which cloture was defeated last week. I note that what has impeded a Senate vote on the Estrada nomination has been the political game being played by the White House with this nomination as part of its effort to pack the Federal courts. The White House could have long ago solved this impasse by honoring the Senate's role in the appointment process through providing the Senate access to Mr. Estrada's legal work--just as past administrations have provided legal memos in connection with the nominations of Robert Bork, William Rehnquist, Brad Reynolds, Stephen Trott, and Ben Civiletti and this administration did with a nominee to the EPA--and through instructing the nominee to answer questions about his views--consistent with last year's Supreme Court opinion by Justice Scalia--and to stop pretending that he has no views. The White House is using ideology to select its judicial nominees but trying to prevent the Senate from knowing the ideology of these nominees when it evaluates them. Instead, it appears that the Senate Republican majority, at the direction of the White House, chose to extend this debate because its political operatives hope to use it to falsely paint those who will not be steam rolled as somehow ``anti-Hispanic.'' The Republican's approach of crass partisanship regarding this nomination disregards the legitimate concerns raised by many Senators as well as by respected, Hispanic elected officials and Hispanic civil rights leaders. Moreover, the Republican approach and the President's approach have been to divide: to divide the Senate, to divide the American people and, on this particular nomination, to divide Hispanics against each other. That is wrong. It is wrong because the President campaigned on a platform of uniting not dividing. It is wrong because our country needs us to build consensus and work together, especially in these most challenging times. It is wrong because distinguished Latino leaders, who have spent their lives seeking justice and greater representation of Hispanic lawyers as judges, have been attacked by Republicans for showing courage and honesty in their judgment that this nomination is wanting. Joining the League of United Latin American Citizens, which previously wrote to the Senate disassociating itself with Republican attacks on Democratic Senators, yesterday the National Council of La Raza issued a statement condemning the treatment of the Congressional Hispanic Caucus by Republicans. The NCLR statement notes how ``deeply offended'' it is by Mr. Estrada's supporters calling Congressional Hispanic Caucus members ``tyrannical,'' ``racist,'' and ``anti- Latino.'' This Administration has also shown disrespect for the concerns of Senators in renominating both Judge Charles Pickering, despite his ethical lapses, and Justice Priscilla Owen, despite her record as a conservative ``activist'' judge, both of whom were rejected by the Senate Judiciary Committee after fair hearings and open debate last year. Sending these re-nominations to the Senate is unprecedented. No judicial nominee who has been voted down has ever been re-nominated to the same position by any President. The White House in conjunction with the new Republican majority in the Senate is choosing these battles over nominations purposefully. Dividing rather than uniting has become their modus operandi. Among the consequences of this partisan strategy is that for the last month, the Senate has been denied by the Republican leadership meaningful debate on the situation in Iraq. I commend Senator Byrd, Senator Kennedy and the other Senators on both sides of the aisle who have nonetheless sought to have the Senate fulfill its constitutional role as a forum for debate and careful consideration of our Nation's foreign policy. The decision by the Republican Senate majority to focus on controversial nominations rather than the international situation or the economy says much about their mistaken priorities. The Republican majority sets the agenda and they schedule the debate, just as they have here this morning. Many Democratic Senators have already spoken to the Constitution and the Senate's proper role in the confirmation process. I recall, in particular, statements by Senators Daschle, Reid, Bingaman, Boxer, Clinton, Corzine, Dodd, Dorgan, Durbin, Edwards, Feingold, Feinstein, Harkin, Johnson, Kennedy, Kohl, Lautenberg, Levin, Mikulski, Sarbanes and Schumer, among many others. What is disconcerting about the recent debate is what appears to be the Republican majority's willingness to sacrifice the constitutional authority of the Senate as a check on the power of the President in the area of lifetime appointments to our Federal courts. I fear, Mr. President, that the Republican majority's efforts to re-write Senate history in order to rubber-stamp this White House's Federal judicial nominees will cause long-term damage to this institution, to our courts, to our constitutional form of government, to the rights and protections of the American people and to generations to come. I have served in the Senate for 29 years, and until recently I have never seen such stridency on the part of an executive administration or such willingness on the part of a Senate majority to cast aside tradition and upset the balances embedded in our Constitution so as to expand presidential power. In the time set aside by the Republican majority for this debate today, I am glad to have an opportunity to shed light on the fiction that cloture votes, extended debate, and discussion of the views of nominees are anything new or unprecedented. What I do find unprecedented is the depths that the Republican majority and this White House are willing to go to override the constitutional division of power over appointments and longstanding Senate practices and history. It strikes me that some Republicans seem to think that they are writing on blank slate and that they have been given a blank check to pack the courts. They show a disturbing penchant for reading our Constitution in isolation from its history and the practices that have endured for two centuries to suit their purposes of the moment. A few years ago, when Republicans were in the Senate minority and a democratically elected Democratic President was in the White House, columnist George Will, for example, had no complaint about a super- majority or 60 votes being needed to get an up or down vote on legislation or nominations proposed by the President. In fact, reflecting Republican sentiment at the time, what he said in his defense of the Republican filibuster of President Clinton's proposals, was the following: The Senate is not obligated to jettison one of its defining characteristics, permissiveness, regarding extended debate, in order to pander to the perception that the presidency is the sun about which all else in American government--even American life--orbits. (Washington Post, April 25, 1993.) It apparently did not trouble him or other Republicans when they were in the Senate minority that the Constitution expressly requires more than a simple majority for only a few matters. In fact, Mr. Will wrote: Democracy is trivialized when reduced to simple majoritarianism--government by adding machine. A mature, nuanced democracy makes provision for respecting not mere numbers but also intensity of feeling. Of course, that was in 1993 and President Clinton and a Democratic Senate majority were being contested by Republican filibusters. What is different a mere 10 years later? Just that the parties have switched roles and this year Democrats are in the Senate minority and a Republican occupies the White House. I ask unanimous consent that a recent article by Edward Lazarus that critiques Mr. Will's new position be included in the Record. As George Will noted in 1993, one of the key attributes of the Senate is the venerable tradition of unlimited debate. In fact, not until 1917 was there even a provision in the Senate rules to allow for cloture, a procedure by which the Senate acts to cut off debate. The Senate first adopted the cloture rule in 1917. At that time, cloture was limited to and could only be sought on legislative matters. The cloture rule was extended in 1949 to nominations by amending it to include measures and matters, which included judicial nominations. Thus, prior to 1949, disputes over nominations--to the 100 seats in the Federal judiciary-- were handled and resolved by Senators behind closed doors and many judicial nominations were defeated in the Senate by inaction or the threat of a filibuster. Republicans resurrected those tactics in the years 1995-2001 to defeat more than 50 of President Clinton's judicial nominees. In essence, until they had a Republican President, Republicans interpreted the Advice and Consent Clause of the Constitution to allow a handful of anonymous Republican Senators to prevent an ``up or down'' vote by the full Senate on scores of qualified judicial nominees. Now, when Democratic Senators have expressed genuine concerns about the lack of information regarding Mr. Estrada and have made a well-founded request to see his writings, Republicans claim it is wrong and unconstitutional for Senators to act in accordance with Senate rules and tradition and their longstanding role as a check and balance on the President's appointment power. It cannot be that only the rules Republicans like at the times that they like them are the rules that are followed in the Senate, but more and more that seems to be what the Republican majority is demanding. They should not pretend the rules no longer apply simply because the Republican majority finds them inconvenient, but that is happening more and more in the Senate. Regrettably, it has occurred recently in connection with judicial nominees before the Judiciary Committee, when the Republicans insisted on breaching Rule IV, a longstanding rule of our Committee that allows for extended debate, as well. What is at stake in judicial nominations are lifetime appointment for judges who will have the power to change how the Constitution is interpreted and whether civil rights, environmental protections, privacy and our fundamental freedoms will be upheld. With respect to the Estrada nomination, what is at stake is a seat on the second highest court in the country and the swing vote on that important court. Most of the decisions issued by the D.C. Circuit in the nearly 1,400 appeals filed per year are final because the Supreme Court now takes fewer than 100 cases from all over the country each year. This court has special jurisdiction over cases involving the rights of working Americans as well as the right to a cleaner environment. This is a court where Federal regulations will be upheld or overturned, where privacy rights will either be retained or lost, and where thousands of individuals will have their final appeal in matters that affect their financial future, their health, their lives and their liberty. This is a court that has vacant seats due to anonymous Republicans blocking the last two nominees to this court by a Democratic President. Those nominees had outstanding legal credentials and qualifications but during President Clinton's last term, the Republican-controlled Senate would not proceed to an up or down vote on either of them. The word ``filibuster'' derives from the Dutch word for piracy, or taking property that does not belong to you. Under that ordinary definition, it would be accurate to say that at least two of the vacancies on the D.C. Circuit, for which Republicans blocked qualified nominees, were filibustered, as well. Republicans, who exploited every procedural rule and practice to block scores of Clinton nominees anonymously from ever receiving an up or down vote, now want to change the rules midstream, to their partisan advantage, again. The whole reason this President has so many circuit vacancies to fill is because this was the booty of their piracy, their filibustering of judicial seats that arose during the Clinton Administration while they prevented votes on that President's qualified nominees. For example, a Mexican-American circuit court nominee of President Clinton, Judge Richard Paez, was forced to wait more than 1,500 days to be confirmed, and even after the Republican filibuster was broken by a cloture vote to end debate, many Republicans joined an unsuccessful motion to indefinitely postpone his nomination. None of the more than 30 Republicans who voted against cloture in connection with that nomination or who voted in favor of Senator Sessions' unprecedented motion ``to indefinitely postpone'' the vote on Judge Paez's nomination, which had been pending for more than 1,500 days, should be heard to complain if Democratic Senators seek more information about nominations before proceeding to a vote for a lifetime appointment. I also recall that during the closing moments of that debate Senator Sessions objected that the Vice President of the United States was presiding over the Senate in his capacity as the President of the Senate. The Senator from Alabama objected that he should not be allowed to preside. I have not raised that objection to the Vice President presiding here today but have, instead, welcomed the Vice President. This is further demonstration that Democrats have been more moderate and much more cooperative with this Administration than Republicans were with the prior Democratic Administration. I will include in my full statement for the Record the words of the Republican Senators who filibustered President Clinton nominees. Senator Bob Smith, a straight talker from New Hampshire, outlined the Senate's history of filibusters of judicial nominees and said: Don't pontificate on the floor and tell me that somehow I am violating the Constitution . . . by blocking a judge or filibustering a judge that I don't think deserves to be on the court. That is my responsibility. That is my advise-and- consent role, and I intend to exercise it. Thus, the Republicans' claim that Democrats are taking ``unprecedented'' action--much like the bogus White House claim that our request for Mr. Estrada's work while paid by taxpayers was ``unprecedented''--is simply untrue. Republicans' desire to rewrite their own history is wrong. They should come clean and tell the truth to the American people about their past practices on nominations. They cannot change the plain facts to fit their current argument and purposes. Senator Hatch candidly admitted after cloture was invoked on the Paez nomination and Senator Sessions made his unprecedented motion to indefinitely postpone any vote on that judicial nomination: Indeed, I must confess to being somewhat baffled that, after a filibuster is cut off by cloture, the Senate could still delay a final vote on a nomination. A parliamentary ruling to this effect means that, after today, our cloture rule is further weakened. Republicans should not have come to the floor and told the American people over the last month that Democratic Senators had done something unprecedented in opposing the Estrada nomination. They themselves did it quite recently and have done it repeatedly. Let us be honest about this and straight with the American people. Given the time allotted for today's debate, I cannot discuss them all but I will include in the Record some of the other examples of filibusters of presidential nominations from the nomination of Justice Abe Fortas to be Chief Justice of the United States Supreme Court through the nominations of Stephen G. Breyer, now Justice Breyer, to the First Circuit; Rosemary Barkett to the 11th Circuit; H. Lee Sarokin to the 3rd Circuit; and Marsha Berzon and Richard Paez to the 9th Circuit. Even more frequent during the years from 1995 through 2001, when Republicans controlled the Senate majority, were Republican efforts to defeat President Clinton's judicial nominees through inaction and anonymous holds for which no Republican Senator could be held accountable. Republicans held up almost 80 judicial nominees who were not acted upon during the Congress in which President Clinton first nominated them and eventually defeated more than 50 judicial nominees without a recorded Senate vote of any kind, just by refusing to proceed with hearings and Committee votes. Beyond the question of judicial nominees, Republicans also filibustered the nomination of Dr. Henry Foster to become Surgeon General of the United States. This was an executive branch nominee that Republicans filibustered successfully in spite of two cloture votes in 1995. Dr. David Satcher's subsequent nominaton also required cloture but he was successfully confirmed. Other executive branch nominees who were filibustered by Republicans included Walter Dellinger, whose name has been invoked with approval by Republicans during the debate on the Estrada nomination. Mr. Dellinger was nominated to be Assistant Attorney General and two cloture petitions were required to be filed and both were rejected by Republicans. In this case we were able finally to obtain a confirmation vote after significant efforts and Mr. Dellinger was confirmed to that position with 34 votes against him. He was never confirmed to his position as Solicitor General because Republicans had made clear their opposition to him. In addition, in 1993, Republicans objected to State Department nominations and even the nomination of Janet Napolitano to serve as the U.S. Attorney for Arizona, resulting in cloture petitions. In 1994, Sam Brown was nominated to be an Ambassador. After three cloture petitions were filed, his nomination was returned to President Clinton without Senate action. Also in 1994, Derek Shearer was nominated to be an Ambassador and it took two cloture petitions to get to a vote before he was confirmed. In 1994, Ricki Tigert was nominated to chair the FDIC and it took two cloture petitions to get to a vote and confirmation of that executive nomination. So when Republican Senators now talk about the Senate Executive Calendar and presidential nominees, they must be reminded that they recently filibustered many, many qualified nominees. [chart] In addition, some of us remember Republican unwillingness to allow a Senate vote on the nomination of Bill Lann Lee to serve as the Assistant Attorney General for the Civil Rights Division at the Department of Justice. He told the Judiciary Committee that he would follow the law and enforce the law. He was the choice of the President to serve in that President's administration, but Republicans would not accord him an up or down vote before the United States Senate. Now let me turn to a most troubling development that demonstrates how Republicans are violating longstanding Senate rules to suit themselves. Two weeks ago in a meeting of the Senate Judiciary Committee, the Chairman unilaterally declared the termination of debate on two controversial circuit court nominations. Senator Daschle termed it deeply troubling and a ``reckless exercise of raw power by a Chairman,'' and he is right. The Democratic Leader observed that the work of this Senate has for over 200 years operated on the principle of civil debate, which includes protection of the minority. When a Chairman can on his own whim choose to ignore our rules that protect the minority, not only is that protection lost, but so is an irreplaceable piece of our integrity and credibility. The Democratic Leader noted that faithful adherence to rule is especially important for the Senate and for its Judiciary Committee. He noted ``how ironic that in the Judiciary Committee, a Committee which passes judgment on those who will interpret the rule of law,'' that it acted in conscious disregard of the rules that were established to apply to its proceedings. If this is what those who pontificate about ``strict construction'' mean by that term, it translates to winning by any means necessary. If this is how the judges of the judicial nominees act, how can we expect the nominees they support as ``strict constructionists'' to behave any better? Given this action in disrespect of the rights of the minority, how can we expect the Judiciary Committee to place individuals on the bench that respect the rule of law? In my 29 years in the Senate and in my reading of Senate history, I cannot think of so clear a violation of Senators' rights. I am gravely concerned about this abuse of power and breach of our Committee rules. When the Judiciary Committee cannot be counted upon to follow its own rules for handling important lifetime appointments to the federal judiciary, everyone should be concerned. In violation of the rules that have governed that Committee's proceedings since 1979, the Chairman chose to ignore our longstanding Committee Rules and short-circuit Committee consideration of the nominations of John Roberts and Deborah Cook. Senator Daschle spoke to that matter that day. Senator Feinstein, Senator Schumer and Senator Durbin have also spoken to the Senate about this breach of our rules as well as a number of other liberties that Republicans have been taking with the rules. The protection for the minority has been maintained by the Judiciary Committee for the last 24 years under five different chairmen--Chairman Kennedy, Chairman Thurmond, Chairman Biden, under Chairman Hatch previously and during my tenure as chairman. Rule IV of the Judiciary Committee provides the minority with a right not to have debate terminated and not to be forced to a vote without at least one member of the minority agreeing. That rule and practice had until last month always been observed by the Committee, even as we have dealt with the most contentious social issues and nominations that come before the Senate. Until last month, Democratic and Republican Chairmen had always acted to protect the rights of the Senate minority. The rule has been the Committee's equivalent to the Senate's cloture rule. It had been honored by all five Democratic and Republican chairmen, including Senator Hatch until last month. It was rarely utilized but Rule IV set the ground rules and the backdrop against which rank partisanship was required to give way, in the best tradition of the Senate, to a measure of bipartisanship in order to make progress. That is the other important function of the rule. Besides protecting minority rights, it enforced a certain level of cooperation between the majority and minority in order to get anything accomplished. That, too, has been lost as the level of partisanship on the Judiciary Committee and within the Senate reached a new low when Republicans chose to override our governing rules of conduct and proceed as if the Senate Judiciary Committee were a minor committee of the House of Representatives. In fact, the only occasion I recall when Senator Hatch was previously faced with implementing Committee Rule IV, he did so. In 1997, Democrats on the Committee were seeking a Senate floor vote on President Clinton's nomination of Bill Lann Lee to be the Assistant Attorney General for Civil Rights at the Department of Justice. Then, Senator Hatch acknowledged: ``Rule IV of the Judiciary Committee rules effectively establishes a committee filibuster right. . . .'' In 1997, Chairman Hatch acknowledged: ``Absent the consent of a minority member of the Committee, a matter may not be brought to a vote.'' In that case, in 1997, Chairman Hatch followed the rules of the Committee. Last month the bipartisan tradition and respect for the rights of the minority ended when Chairman Hatch decided to override the rule rather than follow it. He did so expressly and intentionally, declaring: ``[Y]ou have no right to continue a filibuster in this committee.'' He decided, unilaterally, to declare the debate over even though all members of the minority were prepared to continue the debate and it was, in fact, terminated prematurely. Senator Hatch completely reversed his own position from the Bill Lann Lee nomination and took a step unprecedented in the history of the Committee. In his recent letter to Senator Daschle, Senator Hatch now contends that he ``does not believe the Committee filibuster should be allowed and [he] thinks it is a good and healthy thing for the Committee to have a rule that forces a vote.'' I ask that the exchange of letters between Senator Hatch and the Democratic Leader be included in the Record. Our Committee rule, while providing a mechanism for terminating debate and reaching a vote on a matter, does so while providing a minimum of protection for the minority. It is even that minimum protection that Chairman Hatch will no longer countenance. It is Senator Hatch who has ``turned Rule 4 on its head'' last month, after 24 years of consistent interpretation and implementation by five chairmen. Never, before his letter to Senator Daschle, has anyone since the adoption of the rule in 1979 ever suggested that its purpose was to be narrowed and redirected to thwart ``an obstreperous Chairman who refuses to allow a vote on an item on the Agenda.'' After all, as Senator Hatch recognizes in his letter, it is the chairman's prerogative to set the agenda for the mark-up. This revisionist reading of the rule is not justified by its adoption or its prior use and appears to be nothing other than an after the fact attempt to justify the obvious breaches of the longstanding Committee rule and practice that occurred last month. It was not even articulated contemporaneously at the business meeting. The Committee and the Senate have crossed a threshold of partisan overreaching that should never have been crossed. I urge the Republican leadership to recommit the nominations of Deborah Cook and John Roberts to the Judiciary Committee so that they can be considered in accordance with the Committee's rules. The action taken last month should be vitiated and order restored to the Senate and to the Judiciary Committee. I urge the Judiciary Committee and the Senate to rethink the misstep taken last month and urge the Chairman and the Committee to disavow the misinterpretation and violations of Rule IV that occurred. Order and comity need to be restored to the Judiciary Committee. An essential step in that process is the restoration of minority rights under Rule IV and recognition of minority rights thereunder. During the last four years of the Clinton Administration, his entire second term in office after being reelected by the American people, the Judiciary Committee refused to hold hearings and Committee votes on his qualified nominees to the D.C. Circuit and the Sixth Circuit. Last month, in sharp contrast, this Committee was required to proceed on two controversial nominations to those circuit courts in contravention of the rules and practices of the Committee. This can only be seen as part of a concerted and partisan effort to pack the courts and tilt them sharply out of balance. In circumstances such as these, when the rights of the minority are being violated and Senate rules and longstanding practices are breached, the minority is left with very few options and very little choice in how it must proceed. This President has been the most aggressive and unilateral I have seen in my 29 years in the Senate in his nominations. The Republican majority is now choosing to abet his efforts at the expense of the Senate minority's rights and the constitutional role of the Senate. That is all most regrettable. I yield back my time.

Mr. LEAHY. The Republicans wouldn't allow over 50 of President Clinton's nominees to ever have a hearing or ever have a vote. Many of these individuals were nominated years earlier. We never got to know what the reasoning behind the anonymous Republican holds was. Even when we finally did, for example, a Mexican-American circuit court nominee of President Clinton, Judge Richard Paez, was forced to wait more than 1,500 days to be confirmed. And even then, we had to vote in favor of cloture to get the up or down vote on his nomination. Fifteen Republicans voted against cloture--after he waited more than 20 months for a floor vote during the four-plus years he was pending before the Senate. In fact, one Republican Senator moved to indefinitely postpone Judge Paez's nomination, even though he had waited for 1,500 days, and 31 Republicans voted in favor of indefinitely postponing that nomination in March of 2000. If they had had the votes they never would have let him be confirmed. Not one Republican came to the floor during the time Judge Paez was waiting for a vote and suggested that the Republican filibuster during any of those 1,500 days was unconstitutional or anti-majoritarian. In fact, today made me think of this when we have the two distinguished Presiding Officers, the distinguished Vice President and the distinguished Senator from Alabama. The distinguished Senator from Alabama actually objected to the Vice President at that time being in the chair in the closing moments of the debate on Judge Paez's nomination because the executive branch had nominated him and that was a conflict of interest in his view. Of course, Republicans did not make a similar motion today when it was a Republican Vice President in the chair during a debate about a Republican nominee. Let us just be a little bit honest about what is going on here. This is sauce for the goose and sauce for the gander. And yet this Administration and many Republicans have not acknowledged our effort to turn the other cheek and confirm 100 of this President's judicial nominees in the prior 17 months of Democratic leadership of the Senate. Many of those nominations were to seats that were blocked from being filled during the prior period of Republican control of the Senate. It cannot be that only the rules Republicans like at the times that they like them are the rules that are followed in the Senate, but more and more that seems to be what the Republican majority is demanding. They should not pretend the rules no longer apply simply because the Republican majority finds them inconvenient, but that is happening more and more in the Senate. Regrettably, it has occurred recently in connection with judicial nominees before the Judiciary Committee, when the Republicans insisted on breaching Rule IV, a longstanding rule of our Committee that allows for extended debate, as well. I would like to address a most troubling development that demonstrates how Republicans are violating longstanding Senate rules to suit themselves. Two weeks ago in a meeting of the Senate Judiciary Committee, the Chairman unilaterally declared the termination of debate on two controversial circuit court nominations. Senator Daschle termed it deeply troubling and a ``reckless exercise of raw power by a Chairman,'' and he is right. The Democratic Leader observed that the work of this Senate has for over 200 years operated on the principle of civil debate, which includes protection of the minority. When a Chairman can on his own whim choose to ignore our rules that protect the minority, not only is that protection lost, but so is an irreplaceable piece of our integrity and credibility. The Democratic Leader noted that faithful adherence to rules is especially important for the Senate and for its Judiciary Committee. He noted ``how ironic that in the Judiciary Committee, a Committee which passes judgment on those who will interpret the rule of law,'' that it acted in conscious disregard of the rules that were established to apply to its proceedings. If this is what those who pontificate about ``strict construction'' mean by that term, it translates to winning by any means necessary. If this is how the judges of the judicial nominees act, how can we expect the nominees they support as ``strict constructionists'' to behave any better? Given this action in disrespect of the rights of the minority, how can we expect the Judiciary Committee to place individuals on the bench who respect the rule of law? In my 29 years in the Senate and in my reading of Senate history, I cannot think of so clear a violation of Senators' rights. I am gravely concerned about this abuse of power and breach of our Committee rules. When the Judiciary Committee cannot be counted upon to follow its own rules for handling important lifetime appointments to the federal judiciary, everyone should be concerned. In violation of the rules that have governed that Committee's proceedings since 1979, the Chairman chose to ignore our longstanding Committee Rules and short-circuit Committee consideration of the nominations of John Roberts and Deborah Cook. Senator Daschle spoke to that matter that day. Senator Feinstein, Senator Schumer and Senator Durbin have also spoken to the Senate about this breach of our rules as well as a number of other liberties that Republicans have been taking with the rules. This protection for the minority has been maintained by the Judiciary Committee for the last 24 years under five different chairmen--Chairman Kennedy, Chairman Thurmond, Chairman Biden, under Chairman Hatch previously and during my tenure as chairman. Rule IV of the Judiciary Committee provides the minority with a right not to have debate terminated and not to be forced to a vote without at least one member of the minority agreeing. That rule and practice had until last month always been observed by the Committee, even as we have dealt with the most contentious social issues and nominations that come before the Senate. Until last month, Democratic and Republican Chairmen had always acted to protect the rights of the Senate minority. The rule has been the Committee's equivalent to the Senate's cloture rule. It had been honored by all five Democratic and Republican chairman, including Senator Hatch, until last month. It was rarely utilized but Rule IV set the ground rules and the backdrop against which rank partisanship was required to give way, in the best tradition of the Senate, to a measure of bipartisanship in order to make progress. That is the other important function of the rule. Besides protecting minority rights, it enforced a certain level of cooperation between the majority and minority in order to get things accomplished. That, too, has been lost as the level of partisanship on the Judiciary Committee and within the Senate reached a new low when Republicans chose to override our governing rules of conduct and proceed as if the Senate Judiciary Committee were a minor committee of the House of Representatives. In fact, the only occasion I recall when Senator Hatch was previously faced with implementing Committee Rule IV, he did implement it. In 1997 Democrats on the Committee were seeking a Senate floor vote on President Clinton's nomination of Bill Lann Lee to be the Assistant Attorney General for Civil Rights at the Department of Justice. Then, Senator Hatch acknowledged: ``Rule IV of the Judiciary Committee rules effectively establishes a committee filibuster right . . . .'' In 1997, Chairman Hatch acknowledged: ``Absent the consent of a minority member of the Committee, a matter may not be brought to a vote.'' In that case, in 1997, Chairman Hatch followed the rules of the Committee. Last month the bipartisan tradition and respect for the rights of the minority ended when Chairman Hatch decided to override the rule rather than follow it. He did so expressly and intentionally, declaring: ``[Y]ou have no right to continue a filibuster in this committee.'' He decided, unilaterally, to declare the debate over even though all members of the minority were prepared to continue the debate and that debate was, in fact, terminated prematurely. Senator Hatch completely reversed his own position from the Bill Lann Lee nomination and took a step unprecedented in the history of the Committee. In his recent letter to Senator Daschle, Senator Hatch now contends that he ``does not believe the Committee filibuster should be allowed and [he] thinks it is a good and healthy thing for the Committee to have a rule that forces a vote.'' I ask that the exchange of letters between Senator Hatch and the Democratic Leader be included in the Record. Our Committee rule, while providing a mechanism for terminating debate and reaching a vote on a matter, does so while providing a minimum of protection for the minority. It is even that minimum protection that Chairman Hatch will no longer countenance. It is Senator Hatch who has ``turned Rule 4 on its head'' last month, after 24 years of consistent interpretation and implementation by five chairmen. Never before his letter to Senator Daschle has anyone since the adoption of the rule in 1979 ever suggested that its purpose was to be narrowed and redirected to thwart what he called ``an obstreperous Chairman who refuses to allow a vote on an item on the Agenda.'' After all, as Senator Hatch recognizes in his letter, it is the chairman's prerogative to set the agenda for the mark-up. This revisionist reading of the rule is not justified by its adoption or its prior use and appears to be nothing other than an after the fact attempt to justify the obvious breaches of the longstanding Committee rule and practice that occurred last month. That novel interpretation was not even articulated contemporaneously at the business meeting. The Committee and the Senate have crossed a threshold of partisan overreaching to rubber-stamp judicial nominees that should never have been crossed. I urge the Republican leadership to recommit the nominations of Deborah Cook and John Roberts to the Judiciary Committee so that they can be considered in accordance with the Committee's rules. The action taken last month should be vitiated and order restored to the Senate and to the Judiciary Committee. I urge the Judiciary Committee and the Senate to rethink the misstep taken last month and urge the Chairman and the Committee to disavow the misinterpretation and violations of Rule IV that occurred. Order and comity need to be restored to the Judiciary Committee. An essential step in that process is the restoration of minority rights under Rule IV and recognition of minority rights thereunder. During the last four years of the Clinton Administration, his entire second term in office after being reelected by the American people, the Judiciary Committee refused to hold hearings and Committee votes on his qualified nominees to the D.C. Circuit and it refused to give hearings to three Sixth Circuit nominees in those four years as well as to numerous other circuit nominees. Last month, in sharp contrast, this Committee was required to proceed on two controversial nominations to those circuit courts in contravention of the rules and practices of the Committee. This can only be seen as part of a concerted and partisan effort to pack the courts and tilt them sharply out of balance. In circumstances such as these, when the rights of the minority are being violated and Senate rules and longstanding practices are breached, the minority is left with very few options and very little choice in how it must proceed. This President has been the most politically aggressive and the most unilateralist President I have seen in my 29 years in the Senate in his nominations. The Republican majority is now choosing to abet his efforts at the expense of the Senate minority's rights and the constitutional role of the Senate. That is most regrettable.

Mr. LEAHY. Certainly.

Mr. LEAHY. Mr. President, I will refer to this in my statement. All of these were Republican filibusters and a few times a few Democrats joined with the Republicans in their efforts to block these nominees. Some of the Republican filibusters were successful, and some were not, but they all were filibusters and they all involved cloture petitions. A filibuster is still a filibuster even if it does not succeed in blocking the nominee forever. The Republican filibuster of Judge Paez's circuit court nomination proves that. I fear that what the Republican majority is trying to do is rewrite Senate history in order to rubberstamp the Federal judicial nominees of this White House and that this will cause long-term damage to the Senate and the courts. I have served in the Senate for 29 years. I have never seen a President so eager to divide rather than unite. I have never seen such stridency on the part of an executive administration or such willingness as this Senate majority's to cast aside tradition, the rules, and those things that give us a check and balance. It is unfortunate because the country expects more of us. We see the most deliberative body on Earth--the Senate--not even debating the war we are about to go to in a matter of days, if the news accounts are correct, and we are talking about this because this is the Republican agenda, packing the courts. In the debate Republicans have insisted upon, a number of fictions have been told. The cloture votes, the extended debate, and the discussion of the views of nominees is not anything new or unprecedented. What is going on here is unprecedented--with the Republican blank slate, no past history, and they think they can do whatever they want to do. During the time when President Clinton was here and the Republicans were in charge, there were scores of nominees on which we didn't even have a vote. We had anonymous holds by Republicans. We didn't have up- or-down votes. Now, when we express genuine concern, now, when we say why can't Mr. Estrada show us the writings that he has said under sworn testimony he is willing to show us but the White House blocks him from showing us, somehow we are blocking. Maybe it appears that the Republicans like the rules when they are using them, but they don't like the rules when we are using them. Even though Republicans blocked some Hispanic nominees of President Clinton and scores of others, I must add that the debate on the nomination of Mr. Estrada is not part of any retaliation. We have genuine concerns about his nomination, his answers and the documents we have requested to better understand his unvarnished views. In addition, we worked hard to move quickly on the vast majority of this President's judicial nominations, to demonstrate our fairness and bipartisanship. In just 17 months, the Democratic-led Senate confirmed 100 of President Bush's judicial nominees, even though Republicans averaged only 38 per year. We more than doubled the rate of confirmation. We also held hearings for 20 circuit court nominees and confirmed 17 of them in just 17 months, following on the heels of a Republican average of just 7 circuit nominees confirmed per year, and one year in which they allowed zero circuit court nominees to be confirmed. So, we worked very hard to return the nomination process to a more consistent and steady pace, after the obstruction in prior years. So far this year, 5 judicial nominees of this President have already been confirmed. The confirmation of 100 judges nominated by this President was not enough for Republicans to be satisfied. They want every one of this President's judicial nominees to be confirmed no matter their ethical record or record of activism or their controversy. They want every judicial nominee on the courts immediately despite the serious concerns raised by Senators and citizens alike. They want to pack the court with many divisive judicial nominees who will tilt the balance of the courts for decades to come. The fact is, it appears to me, the decision is being made not here in the Senate but by a political arm of the White House. They have made these controversial appointments despite the recent history of the moderate nominees to these circuits of President Clinton who were blocked. If we use the ordinary definition of filibuster, we could say that at least two of the vacancies on the District of Columbia Circuit were filibustered despite the well-qualified nominees sent up by President Clinton. They were never allowed to be voted on. They didn't make it to the floor. Republicans blocked nominees in a far easier way. They didn't even bring them up. They were nonpersons-- almost like the old Soviet Union. When you looked at the picture of the Politburo, you would find out the next year when the picture was shown they were X'd out.

Mr. LEAHY. On the time of the Senator from Utah.

Mr. LEAHY. I would be glad to. Let me finish these comments, and then I will yield on the time of the Senator from Utah. In this case, it appears to me that the White House really wants to play politics. They could end this debate today if they wanted to. They can make these papers available so that Miguel Estrada can be asked questions based on them. Miguel Estrada has said under oath that he is perfectly willing to answer the questions, but the White House told him he is not allowed to. Once they are willing to, let us have a hearing and then let us go forward on questions based on what is in there. The administration, however, seems to believe that somehow the Senate is their own unit to be used for whatever type of politicking they want. They renominated Judge Charles Pickering despite his ethical lapses. They renominated Justice Priscilla Owen despite her record as a conservative activist judge and after being rejected by the Judiciary Committee. Both of these nominees were rejected by the Senate Judiciary Committee after fair hearings and open debate last year. Sending these renominations to the Senate is unprecedented. No judicial nominee who has been voted down in Committee has ever been renominated to the same position by the President. The White House in tandem with the new Republican majority in the Senate is choosing these battles over nominations purposefully. Dividing rather than uniting has become their modus operandi. Among the consequences of this partisan strategy is that for the last month, the Senate has been denied by the Republican leadership meaningful debate on the situation in Iraq. I commend Senator Byrd, Senator Kennedy and the other Senators on both sides of the aisle who have nonetheless sought to have the Senate fulfill its constitutional role as a forum for debate and careful consideration of our nation's foreign policy in accordance with the shared power provided in the Constitution. The decision by the Republican Senate majority to focus on controversial nominations rather than the international situation or the economy says much about their mistaken priorities. The Republican majority sets the agenda and they schedule the debate, just as they have here this morning. Among the consequences of this partisan strategy, of course, what has happened by the Republican scheduling of debate on this nomination is we don't have sufficient time to debate the Iraq situation. We don't talk about war in Iraq even though there is great division in this country. We don't talk about an administration which inherited the largest surplus any administration has ever inherited. The Clinton administration left the largest budget surplus to this administration than any administration ever had, and now Republicans are creating the largest deficit in history. The Clinton administration created a million new jobs a year. This administration is losing a million jobs a year. But if the Republican controlled Senate continues to schedule debate on Miguel Estrada, they will not have to talk about that. That kind of tells me why they are doing this. Here is the greatest deliberative body in the world, and we don't have a debate on the war in Iraq. The Canadian Parliament does. The British Parliament does. The U.S. Senate does not. I would be willing to yield to the Senator from Utah on his time.

Mr. LEAHY. That is wrong. The President campaigned on a platform of uniting, not dividing. It is wrong because our country needs us to build consensus and we should work together especially in these most challenging times. These are the years of Republican filibusters of judicial or executive branch nominees: 1968, 1980, 1980, 1980, 1987, 1987, 1993, 1993, 1993, 1994, 1994, 1994, 1994, 1994, 1994, 1995, 1998, 2000, 2000. For Republicans to claim that they have never filibustered a circuit court nominee is just incorrect. For them to claim that they have never ``successfully'' filibustered a lifetime or short-term appointee's nomination is also incorrect. The debate on Mr. Estrada's nomination is important. I think in the debate on this nomination, this is not a nomination that unites rather than divides. Certainly within the Hispanic community itself, highly respected members of the Hispanic community oppose Miguel Estrada.

Mr. LEAHY. The partisanship regarding this nominee disregards the legitimate concerns raised by many Senators. It is wrong because distinguished Latino leaders, who have spent their lives seeking justice and greater representation of Hispanic lawyers as judges, have been attacked by Republicans for showing courage and honesty in their judgment that this nomination is wanting. Joining the League of United Latin American Citizens, which previously wrote to the Senate disassociating itself with Republican attacks on Democratic Senators, yesterday the National Council of La Raza issued a statement condemning the treatment of Congressional Hispanic Caucus by Republicans. The NCLR statement notes how ``deeply offended'' it is by Mr. Estrada's supporters calling Congressional Hispanic Caucus members ``tyrannical,'' ``racist,'' and ``anti-Latino''. Moreover, the Republican approach and the President's approach have been to divide the Senate, to divide the American people--may I have order, Mr. President? May I have order?

Mr. LEAHY. Once I finish my speech I will be glad to yield to questions. I control the floor. Once I have finished my speech I will be glad to.

Mr. LEAHY. As Mr. Will noted in 1993, one of the key attributes of the Senate is the venerable tradition of extended debate and deliberations. In fact, not until 1917 was there even a provision in the Senate rules to allow for cloture, a procedure by which the Senate acts to cut off debate. The Senate first adopted the cloture rule in 1917. At that time, cloture was limited to and could only be sought on legislative matters. The cloture rule was extended in 1949 to include measures and matters, which includes judicial nominations. Thus, prior to 1949, there was no mechanism to limit debate on nominations, and in fact, disputes over nominations--to the few hundred seats in the federal judiciary--were handled and resolved by Senators behind closed doors. Earlier in this debate today, one Senator indicated that all prior Supreme Court nominees had been given votes. I will just name a few judicial nominees who were not acted upon by the Senate earlier in American history: John M. Read, nominated by President Tyler on February 7, 1845; Edward Bradford, nominated by President Fillmore on August 16, 1852; Henry Stanbery, nominated by President Andrew Johnson on April 16, 1866; and Stanley Mathews, nominated by President Hayes on January 26, 1881. The facts are that many judicial or executive nominations were defeated in the Senate by inaction or by the threat of a filibuster over the years. Republicans resurrected and amplified those tactics in the years 1995-2001 to defeat more than 50 of President Clinton's judicial nominees and to delay for years the confirmation of many others. In 1999, only 22 percent of President Clinton's circuit court nominees were confirmed. That was the first time in recent memory that a circuit court nominee was substantially more likely not to be confirmed than to be confirmed. For all of 1999 and 2000, only 44 percent of President Clinton's circuit court nominees were confirmed, making it more likely than not that his circuit court nominees would not be confirmed, unlike the nominees of the prior three Presidents, even during their last years in office. That is why vacancies on the circuit courts more than doubled from 16 in 1995 to 33 when the Senate reorganized in the summer of 2001. That is why this President has had so many circuit vacancies to fill, and he has shown little bipartisanship in his choices. In fact, rather than uniting people with his choices for lifetime appointments, he has sent forward a slate of circuit court nominees that has generated tremendous controversy and division. In essence, until Republicans had a Republican President, Republicans interpreted the Advice and Consent Clause of the Constitution to allow a handful of anonymous Republican Senators to prevent an ``up or down'' vote by the full Senate on scores of qualified and moderate, mainstream judicial nominees of President Clinton. Now, when Democratic Senators have expressed genuine concerns about the lack of information regarding Mr. Estrada and have made a well-founded request to see his writings as a public servant, Republicans claim it is wrong and unconstitutional for Senators to act in accordance with Senate rules and tradition and their longstanding role as a check and balance on the President's appointment power. The disregard for rules and traditions is especially unfortunate when what is at stake in judicial nominations are lifetime appointment for judges who will have the power to change how the Constitution is interpreted and whether civil rights, environmental protections, privacy and our fundamental freedoms will be upheld. With respect to the Estrada nomination, what is at stake is a seat on the second highest court in the country and the swing vote on that important court. Most of the decisions issued by the D.C. Circuit in the nearly 1,400 appeals filed per year are final because the Supreme Court now takes fewer than 100 cases from all over the country each year. This court has special jurisdiction over cases involving the rights of working Americans as well as the right to a cleaner environment. This is a court where federal regulations will be upheld or overturned, where privacy rights will either be retained or lost, and where thousands of individuals will have their final appeal in matters that affect their financial future, their health, their lives and their liberty. This is a court that has vacant seats due to anonymous Republicans blocking the last two nominees to this court by a Democratic President. Those nominees had outstanding legal credentials and qualifications but during President Clinton's last term, the Republican-controlled Senate would not proceed to an up or down vote on either of them. The word ``filibuster'' derives from the Dutch word for piracy, or taking property that does not belong to you. Under that ordinary definition, it would be accurate to say that at least two of the vacancies on the D.C. Circuit, for which Republicans blocked qualified nominees, were filibustered, as well. Republicans, who exploited every procedural rule and practice to block scores of Clinton nominees anonymously from ever receiving an up or down vote, now want to change the rules midstream, to their partisan advantage, again so that all of their nominees get votes as quickly as possible. The whole reason this President has so many circuit vacancies to fill is because this was the booty of their piracy, their filibustering of judicial seats that arose during the Clinton Administration while they prevented votes on that President's qualified nominees. For example, a Mexican-American circuit court nominee of President Clinton, Judge Richard Paez, was forced to wait more than 1,500 days to be confirmed. Even after the Republican filibuster was broken by a cloture vote to end debate, many Republicans joined an unsuccessful motion to indefinitely postpone his nomination. None of the more than 30 Republicans who voted against cloture in connection with that nomination or who voted in favor of Senator Sessions unprecedented motion ``to indefinitely postpone'' the vote on Judge Paez's nomination, which had been pending for more than 1,500 days, should be heard to complain if Democratic Senators seek more information about this President's nominees before proceeding to a vote for a lifetime appointment. Senator Bob Smith, a straight talker from New Hampshire, outlined the Senate's history of filibusters of judicial nominees and said: Don't pontificate on the floor and tell me that somehow I am violating the Constitution . . . by blocking a judge or filibustering a judge that I don't think deserves to be on the court. That is my responsibility. That is my advise-and- consent role, and I intend to exercise it. Thus, the Republicans' claim that Democrats are taking ``unprecedented'' action regarding the circuit court nomination of Mr. Estrada--much like the bogus White House claim that our request for Mr. Estrada's work while paid by taxpayers was ``unprecedented''--is simply untrue. Republicans' desire to rewrite their own history is wrong. They should come clean and tell the truth to the American people about their past practices on nominations. They cannot change the plain facts to fit their current argument and purposes. Back in 2000, Senator Hatch candidly admitted after cloture was invoked on the Paez nomination and Senator Sessions made his unprecedented motion to indefinitely postpone any vote on that judicial nomination that Judge Paez's nomination had been filibustered. He said: Indeed, I must confess to being somewhat baffled that, after a filibuster is cut off by cloture, the Senate could still delay a final vote on a nomination. A parliamentary ruling to this effect means that, after today, our cloture rule is further weakened. Republicans should not have come to the floor and told the American people over the last month that Democratic Senators had done something unprecedented in debating and opposing the Estrada nomination. They themselves did it quite recently and have done it repeatedly. Let us be honest about this and straight with the American people. Given the time allotted for today's debate, I cannot discuss them all but I will include in the record some of the other examples of Republican filibusters of presidential nominations from the nomination of Justice Abe Fortas to be Chief Justice of the United States Supreme Court through the nominations of Stephen G. Breyer, now Justice Breyer, to the First Circuit; Rosemary Barkett to the 11th Circuit; H. Lee Sarokin to the 3rd Circuit; and Marsha Berzon and Richard Paez to the 9th Circuit. Even more frequent during the years from 1995 through 2001, when Republicans controlled the Senate majority, were Republican efforts to defeat President Clinton's judicial nominees through inaction and anonymous holds for which no Republican Senator could be held accountable. Republicans held up almost 80 judicial nominees who were not acted upon during the Congress in which President Clinton first nominated them, Republicans eventually defeated more than 50 judicial nominees without a recorded Senate vote of any kind, just by refusing to proceed with hearings and Committee votes due to the anonymous acts of one or more Republicans. Beyond the question of judicial nominees, Republicans also filibustered President Clinton's nomination of Dr. Henry Foster to become Surgeon General of the United States. This was an Executive Branch nominee that Republicans filibustered successfully in spite of two cloture votes in 1995. Dr. David Satcher's subsequent nomination also required cloture but he was successfully confirmed. Other executive branch nominees who were filibustered by Republicans included Walter Dellinger, whose name has been invoked with approval by Republicans during the debate on the Estrada nomination. Mr. Dellinger was nominated to be Assistant Attorney General for the Office of Legal Counsel and two cloture petitions were required to be filed and both were rejected by Republicans. In this case we were able finally to obtain a confirmation vote after significant efforts and Mr. Dellinger was confirmed to that position with 34 votes against him. He was never allowed to be a confirmed Solicitor General because Republicans had made clear their opposition to him. In addition, in 1993, Republicans objected to State Department nominations and even the nomination of Janet Napolitano to serve as the U.S. Attorney for Arizona, resulting in cloture petitions. In 1994, Sam Brown was nominated to be an Ambassador. After three cloture petitions were filed, his nomination was returned to President Clinton without Senate action. This was another successful filibuster by Republicans, and this was to a short-term appointment to serve in the Executive Branch, not to a lifetime appointment. Also in 1994, Derek Shearer was nominated to be an Ambassador and it took two cloture petitions to get to a vote before he was confirmed. In 1994, Ricki Tigert was nominated to chair the FDIC and it took two cloture petitions to get to a vote and confirmation of that executive nomination. In addition, some remember Republican unwillingness to allow a Senate vote on the nomination of Bill Lann Lee to serve as the Assistant Attorney General for the Civil Rights Division at the Department of Justice. He told the Judiciary Committee that he would follow the law and enforce the law. He was the choice of the President to serve in that President's administration, but Republicans would not accord him an up or down vote before the United States Senate. Republicans now claim that extended debate on this nomination is somehow unprecedented. I would point out that we have had a lot of extended debates and cloture votes over the last decade. I lost count of the number of times we had to vote on cloture when President Clinton was making nominations. This chart shows some of the Republican filibusters of nominations, leaving out their filibusters of legislation. So when Republican Senators now talk about the Senate Executive Calendar and presidential nominees, it must be remembered that they recently filibustered several nominees and they succeeded in blocking many nominees by cloture votes and through anonymous holds. Here is a more complete list of recent Republican filibusters:

Mr. LEAHY. I note that what has impeded a Senate vote on the Estrada nomination has been the political game being played by the White House with this nomination. It is part of an effort to pack the Federal courts. In many ways, the debate has been in the hands of the White House. This is a debate that could have ended at any time the White House wanted it to end. We wonder, is there something in Mr. Estrada's writings that the White House doesn't want us to see? The White House could have long ago solved this impasse by letting the Senate have access to Mr. Estrada's memos, especially since Mr. Estrada said he is perfectly willing to have us see those memos. We have plenty of questions we wanted to ask about it but we have to have the paperwork. He told us even though he said under oath he is willing to let us see it, the White House told him he could not. So really this debate is in the control of the White House, not in the control of the leaders of the Senate. Past administrations provided legal memos in connection with the nominations of Robert Bork, William Rehnquist, Brad Reynolds, Stephen Trott, and Benjamin Civiletti, and this administration actually provided White House Counsel's office memos of its nominee to the EPA. Our request for his memos was made nearly one full year ago, Mr. President. The White House also could have helped resolve this impasse through instructing the nominee to answer questions about his views at his hearing, to act consistent with last year's Supreme Court opinion by Justice Scalia in a case the Republican Party won to allow judicial candidates to share their views, and to stop the pretense that he has no views. The White House is using ideology to select its judicial nominees but is trying to prevent the Senate from knowing the ideology of these nominees when it evaluates them. Instead, it appears that the Senate Republican majority, at the direction of the White House, chose to extend this debate because its political operatives hope to use it to falsely paint those who will not be steam rolled as somehow being ``anti-Hispanic.'' The Republicans' resort to partisanship regarding this nomination disregards the legitimate concerns raised by many Senators as well as by respected Hispanic elected officials and Hispanic civil rights leaders. Moreover, the Republican approach and the President's approach has been to divide: to divide the Senate, to divide the American people and, on this particular nomination, to divide Hispanic Americans against each other. That is wrong. It is wrong because the President campaigned on a platform of uniting, not dividing. It is wrong because our country needs us to build consensus and work together, especially in these most challenging times. Instead of bringing up legislation that could unite us or setting aside time for debate on the international and domestic challenges our country is facing, the Republicans have again returned to the nomination of Mr. Estrada and they have set aside an hour and one-half this morning for a constitutional debate. Many Democratic Senators have already spoken about the Senate's proper role in the confirmation process under the Constitution. I recall, in particular, statements by Senators Daschle, Reid, Bingaman, Boxer, Clinton, Corzine, Dodd, Dorgan, Durbin, Edwards, Feingold, Feinstein, Harkin, Johnson, Kennedy, Kohl, Lautenberg, Levin, Mikulski, Sarbanes and Schumer, among many others. What is disconcerting about the recent debate is what appears to be the Republican majority's willingness to sacrifice the constitutional authority of the Senate as a check on the power of the President in the area of lifetime appointments to our federal courts. I fear, Mr. President, that the Republican majority's efforts to re-write Senate history in order to rubber-stamp this White House's federal judicial nominees will cause long-term damage to this institution, to our courts, to our constitutional form of government, to the rights and protections of the American people and to generations to come. I have served in the Senate for 29 years, and until recently I have never seen such stridency on the part of an executive administration or such willingness on the part of a Senate majority to cast aside tradition and upset the balances embedded in our Constitution so as to expand presidential power. In the time set aside by the Republican majority for this debate today, I welcome the opportunity to shed light on the fiction that cloture votes, extended debate, and discussion of the views of nominees are anything new or unprecedented. What I do find unprecedented is the depths that the Republican majority and this White House are willing to go to override the constitutional division of power over appointments and longstanding Senate practices and history. It strikes me that some Republicans seem to think that they are writing on blank slate and that they have been given a blank check to pack the courts. They show a disturbing penchant for reading our Constitution in isolation from its history and the practices that have endured for two centuries, in order to suit their purposes of the moment. A few years ago, when Republicans were in the Senate minority and a democratically elected Democratic President was in the White House, columnist George Will, for example, had no complaint about a super- majority of 60 votes being needed to get an up or down vote on legislation or nominations proposed by the President. In fact, reflecting Republican sentiment at the time, what he said in his defense of the Republican filibuster of President Clinton's proposals, was the following: The Senate is not obligated to jettison one of its defining characteristics, permissiveness regarding extended debate, in order to pander to the perception that the presidency is the sun about which all else in American government--even American life--orbits. This is from the Washington Post on April 25, 1993. It apparently did not trouble him or other Republicans when they were in the Senate minority that the Constitution expressly requires more than a simple majority for only a few matters. In fact, Mr. Will wrote: ``Democracy is trivialized when reduced to simple majoritarianism--government by adding machine. A mature, nuanced democracy makes provision for respecting not mere numbers but also intensity of feeling.'' Of course, that was in 1993 and President Clinton's proposals and a Democratic Senate majority were being contested by Republican filibusters. What is different a mere 10 years later? Just that the parties have switched roles and this year Democrats are in the Senate minority and a Republican occupies the White House. I ask unanimous consent that a recent article by Edward Lazarus that critiques Mr. Will's new position be printed in the Record.

Mr. LEAHY. I thank the distinguished Presiding Officer. I welcome the distinguished Presiding Officer to the Senate today in his capacity as President of the Senate. It is not often we see the Vice President in the chair of the Senate. With the U.N. Security Council meeting today, the OPEC meeting, the unsettled and threatening circumstances in so many parts of the world from the Middle East to the Korean peninsula to Iran and Iraq, we should feel very honored that the Vice President would take time out of his schedule related to those kinds of issues to be with us today. I hope he will come back to the Senate when we debate the disastrous economic situation in the country, the loss of 2.5 million jobs in the last 2 years following 8 years of a million new jobs being added every year, or the 300,000 lost last month. I know Senator Daschle sought for weeks to proceed to debate on S. 414, the Economic Recovery Act of 2003, which among other things includes the First Responders Partnership Grant Act, something that we could use in Vermont and Utah and Wyoming and everywhere else, but the Senate Republican majority has blocked debate and action on the Economic Recovery Act. So, today, instead of debating the international situation, the need to pass an economic stimulus package, the need for an increased commitment to homeland defense, the need for legislation to provide a real prescription drug benefit for seniors or the many other matters so deeply concerning Americans, Republicans are insisting on returning again in some form to debate the nomination of Miguel Estrada. I wonder if I might have order, Mr. President?

Mr. LEAHY. Mr. President, how much time is available to both sides?

Mr. LEAHY. I yield an additional 1 minute.

Mr. LEAHY. I yield one more minute to the Senator.

Mr. LEAHY. I yield 1 minute to the Senator.

Mr. LEAHY. If the Senator would read the whole quote, he would understand I was talking about the anonymous holds on Judge Sotomayor, and anonymous holds were being used as a filibuster. I made that very clear in that statement. Interestingly enough, even though we have corrected the record a number of times on the floor, pointing out when that misstatement has been made, apparently those were times when the distinguished Senator from South Carolina was not on the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to speak about an unfortunate string of events that may set back the Department of Justice in fighting child pornography. Unfortunately, it appears that recklessness by DOJ prosecutors and FBI investigators may result in child pornographers being set free all over the Nation. We cannot afford such mistakes in our efforts to protect our children. The fight against child pornography is an important and laudable goal. Child pornography victimizes real children and scars them for life. That is why I joined Senator Hatch in introducing the PROTECT Act, S.151, which passed the Senate this month by a vote of 84-0 and now awaits action in the House. I urge the House to pass this bill swiftly as we wrote it and as it unanimously passed the Senate. That way we can quickly get prosecutors the tools they need to win these cases. The scars of the children who are victimized by child pornography can be that much longer in healing when the power of the internet is misused to spread their images to a worldwide audience with the click of a mouse. The internet also provides child pornographers with greater anonymity, allowing them to exploit children from the perceived safety of their bedrooms and basements. It is crucial to pierce this veil of safety to deter child pornography. Those who victimize our children must be made to understand that they will be held accountable when they are caught. With that accountability comes deterrence, and only through deterrence will our children actually be safer. By the same token, the failure to make a conviction stick when the FBI does catch a child pornographer emboldens all child pornographers in carrying out their criminal activity. Whenever child pornographers see one of their own ``beat the rap,'' their perception that they can victimize the innocent with impunity is reinforced. Last March, the Attorney General and FBI Director announced with great fanfare the ``Operation Candyman'' initiative. This investigation was billed as one of the most extensive child pornography stings in history. According to the FBI's March 18, 2002 press release, it involved all 56 FBI Field offices, nearly every U.S. Attorney's Office across the country, and the DOJ's Criminal Division. A major part of the investigation was accomplished by the FBI's completion and dissemination of a centralized search warrant affidavit that was slightly adapted and used in numerous jurisdictions to search the residences of suspects in the case. Thus, most all the Operation Candyman searches--and the admissibility of the evidence obtained through them--depend on the validity and accuracy of this centralized FBI affidavit. Many arrests resulted from these searches. As the Attorney General said at the time he announced the operation, he wished this case to serve as an example ``to others that we will find and prosecute those who target and endanger our children.'' Unfortunately, this case may set the wrong kind of example. The DOJ has now admitted that its key affidavit--the one that it sent all over the country to conduct searches and gather evidence--contained false information. Two judges so far, one in Missouri and one in New York, have thrown out the evidence obtained from searches in this case. Because of the DOJ's admitted false statements, more cases are in peril within Operation Candyman. More importantly, as the Attorney General acknowledged at the time he announced the operation, other child pornographers may well take their cue from the FBI's failures in this case. We all want to stop child pornography, but we must do so within the bounds of the Constitution. Otherwise, dangerous predators end up back on the street and our children are still at risk. In this case, two separate judges have found that the FBI acted recklessly and DOJ admitted that it provided false information in its nationally circulated affidavit. It is all well and good to have press conferences and give catchy names to investigative efforts, but public relations is not enough. Press releases must be accompanied by an effective law enforcement campaign. Otherwise, instead of trumpeting success, we highlight failure. If we concentrate on the fundamentals and bring successful cases, there will be enough credit for everyone. That course alone will make our children safer. Mr. President, I ask unanimous consent that a copy of a New York Times article discussing this matter be printed in the Record.